Failure to review suspension fatal to unfair dismissal defence

09 February 2018

The recent decision of Jill Leeman v Southern Regional College 1161/17IT is a stark reminder to employees that even where an employee has admitted wrong doing, failure to follow procedure can result in a finding of unfair dismissal.

Failure to review suspension fatal to unfair dismissal defence

The Claimant in this case was a Lecturer in Beauty Therapy employed by the Respondent. In March 2015, the Claimant was asked to provide beauty services, on behalf of the Respondent at a ‘Pamper Me Perfect’ promotional event. The Claimant attended this event with students from the college and was later invited by the promoter to attend further ‘Pamper Me Perfect’ events, for which she received cash.

In August 2015, the Respondent became aware of the Claimant’s involvement in these events and that she had been paid £600 – £800 for the supply of her services and products. At an investigatory meeting into the matter, the Claimant confirmed that she had attended the events and had received cash for same. She claimed that she had lodged £200 with the Respondent and placed £100 into petty cash, which she then used to purchase salon products for the Respondent. She gave each of the 8 students who accompanied her to the events, £30 each and claimed that she had kept the remainder for petrol and food expenses. The Respondent in the matter contended the Claimant was not able to explain reasonably where the remainder of the monies had went or vouch for the monies she could explain.

Crucially, the Claimant confirmed that she did not report the payment to anyone at the College. She alleged that she was working under the presumption that as it was her own time, it was up to her to distribute the money as she wished.

The Respondent placed the Claimant on precautionary suspension on 12 January 2016. This suspension was not reviewed at any stage, despite same being referenced with the Respondent’s policy. The Claimant was ultimately dismissed on the grounds of gross misconduct.

The Tribunal was satisfied that the Respondent had shown a genuine reason for the Claimant’s dismissal related to her conduct. However, the Tribunal held, by way of a majority decision, that the Respondent had failed to conduct a reasonable investigation into the alleged misconduct. As such, they found that she had been unfairly dismissed.

The Tribunal was critical of the investigation carried out by the Respondent, finding that it did not take all reasonable steps to inform itself of the relevant facts prior to reaching its decision to dismiss. In particular, the Tribunal found that the failure of the Respondent to consider the effect of the Claimant’s medical conditions on her behaviour and the absence of further enquiry into her ill-health, despite mentions of same in medical reports, was detrimental to the investigation.

It was held that the Claimant’s lengthy suspension, without review, was contrary to the Respondent’s own procedures and Labour Relations Agency Code of Practice. Further, the Tribunal criticised the Respondent’s disciplinary and appeal panel for considering the Claimant’s disciplinary record, given that the incident referenced on her record was dealt with ‘informally’ by means of counselling. The Respondent was also subject to criticism for dismissing the Claimant’s allegation of bias against a panel member, and determined that allowing the individual to remain involved was prejudicial to the disciplinary process as a whole.

The Tribunal has ordered the Claimant be reinstated no later than 19 February 2018 and awarded £16,419.50 in damages, following a 50% deduction for contributory fault.

This case is a stark reminder to employers of the importance of a detailed and thorough investigatory and disciplinary process. Even in cases, where there is reasonable belief for dismissal on the grounds of misconduct, it is vital that employers ensure that they are complying with the relevant policies and Labour Relations Agency Code of Practice 2011. In particular, employers should be reminded that failure to review an employee’s suspension can be fatal to the disciplinary process, in circumstances where its own policy states so.

Niall McMullan is an Associate Partner in Worthingtons Commercial Solicitors Belfast, where he specialised in Employment Law.

 

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