Employers - The Importance of a Full Disciplinary Investigation - Tribunal orders reinstatement of an unfairly dismissed employee
The Claimant, Graham Davis, was employed by B&M Retail Ltd as Replenishment Manager, from 10 March 2010 to 31 November 2013, having been dismissed on the grounds of gross misconduct.
The incident which culminated in the Claimant’s dismissal occurred on 20 November 2013, when it was alleged that, during a routine staff search at the end of the Claimant’s shift, he had in his possession an extension lead valued at £4.99, in respect of which he could not produce a receipt as proof of purchase or able to confirm the details of when the purchase was made.
Having reviewed the CCTV footage and inspected its till records, the Respondent believed the Claimant had not paid for the item, which could be construed as theft.
The Claimant was absent from work due to sickness on the 21 and 22 November and, following an initial investigation meeting held on 25 November, the Claimant was suspended on full pay to allow the Respondent to carry out its investigation and subsequent disciplinary process.
During the investigation and disciplinary meetings, the Tribunal heard that “preset” questions were utilised. The Claimant was dismissed at disciplinary stage, the disciplinary authority finding that the Claimant’s “conduct…resulted in a fundamental breach of (the Claimant’s) contractual terms which irrevocably destroys the trust and confidence necessary to continue the employment relationship, to which summary dismissal is the appropriate sanction”. The Claimant appealed this decision, but same was not upheld.
In finding in favour of the Claimant, the majority members of the Tribunal found in summation that:
·Sufficient account had not been taken of the Claimant’s explanation (i.e. that it was a genuine/honest mistake he had taken the extension lead) or mitigating factors;
·At the initial investigation meeting, the Claimant was asked to return his keys to the premises;
.“Preset” questions were utilised at the investigation and disciplinary meetings, and therefore the Tribunal determined the records of same were not a true reflection of what was actually discussed at the meetings;
·The Respondent did not carry out as much of an investigation as was reasonable in the circumstances; and
·Therefore, the Respondent had no reasonable grounds at the time of the decision to dismiss the Claimant to sustain its belief that the Claimant was guilty of the allegations against him.
The Employment Judge in his dissenting decision, making reference to the well-established principles confirmed in the case of Rogan v South Eastern Health and Social Care Trust  NICA 47, was satisfied that whilst the penalty of dismissal may have been “severe”, the termination of the Claimant’s employment on the grounds of gross misconduct was fair. The Employment Judge also made reference to the fact that the Claimant raised no issue regarding the use of “preset” questions nor did he assert that he did not have the opportunity to present his case; indeed the questions and answers at the investigation meeting were read back to the Claimant for his agreement.
However, given the majority decision, and the indications given by the Claimant in his ET1 claim form and evidence as to the preferred outcome, the Tribunal ordered that the Claimant be reinstated to the post of Replenishment Manager with effect from 15 September 2014.
If you would like to read the full decision of the Tribunal in respect of this matter, same can be found on the Office of the Industrial Tribunal’s website.
Toni Fitzgerald-Gunn is a Solicitor in the Employment Department at Worthingtons and advises in all aspects of Employment Law