Think before you dismiss someone for a first offence

05 November 2018

The Employment Appeals Tribunal in the Republic of Ireland has recently decided that an employee, Tim Marks, was unfairly dismissed and has ordered that his former employer, ICTS, pay compensation of €29,000.

Think before you dismiss someone for a first offence

Mr Marks had worked for 9 years as an airline security worker for the company.  He was dismissed for “gross misconduct” in 2014 after he took a discarded copy of Time magazine from a bin at Shannon airport where it had been placed by cleaners while they were cleaning a United Airlines flight.  The magazine was worth around $8.

The company operated a zero tolerance policy on theft and dismissed Mr Marks.  Mr Marks did not deny taking the magazine, but he advanced the argument before the Tribunal that the sanction applied by his former employer was an overreaction because he thought the magazine was litter and was about to be thrown out.

Mr Marks’ former employer argued that the value of the item was irrelevant and placed great weight on the fact that the company’s business was that of providing security services and that the “whole basis” of their operations was to “protect all of the items on the aircraft.”  The employer also relied on a previous memo which had been issued to all staff, including Mr Marks, relating to an incident involving another employee who had been dismissed for taking a can of Coke from a plane without permission.

The tribunal found the decision to dismiss Mr Marks had been “disproportionate” given the “value and significance of the property item in dispute”, and the “length of service and good employment record of Mr Marks”.  It also questioned whether the employer had genuinely turned their mind to whether dismissal was the only possible sanction open to them.

This case raises interesting arguments about proportionality of disciplinary sanctions and what consideration should be given to sanctions short of dismissal.  This is an issue which has also been considered by our Court of Appeal in Northern Ireland in 2017 in the case of Caroline Connolly v Western Health and Social Care Trust. In that case the Court upheld an appeal by a nurse against a finding by an Industrial Tribunal that her use of an inhaler from a medicine cupboard on a ward was misconduct and that she had not been unfairly dismissed. 

Caroline Connolly was a nurse in an Acute Medical Unit. While at work, she felt the onset of an asthma attack and used an inhaler from a locked cupboard in the medicine room in the ward. She did not inform the Ward Sister that she had taken the inhaler until she was next on duty and said she intended to replace it from her own prescription. Ms Connolly was dismissed for gross misconduct. 

That decision was upheld by an Industrial Tribunal, set aside by the Court of Appeal and subsequently upheld again by a second Tribunal, before the Tribunal’s Decision was ultimately quashed by the Court of Appeal. 

In his judgement Lord Justice Deeny highlighted that the Tribunal must, in considering whether the employer’s decision fell within the “band of reasonable responses”, make that determination “in accordance with equity and the substantial merits of the case” and that, in his view, this would include consideration as to whether a lesser sanction could be applied.  He further commented that dismissals for a single first offence must require that offence to be particularly serious ie a willful and deliberate act of misconduct

Katie Buchanan is a solicitor in Worthingtons Solicitors in Belfast specialising in employment law and regularly provides ongoing advice and assistance to employers on a range of employment law matters, including disciplinary processes.  Katie can be contacted on 02890434015 or katie@worthingtonslaw.co.uk.

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