An employee’s dismissal was held to be unfair by an employment tribunal after it was found that the true reason for it was not gross misconduct as the employer had argued, but because the employee had asked for clarification in writing of a possible disciplinary sanction during a telephone argument with the owner.
Furthermore, the tribunal found that the ‘gross misconduct’ the employer had tried to rely upon was errors which had been “gathered up” by the owner to support his case for the dismissal and that “they should not have been characterised as misconduct, far less gross misconduct as they were poor performance.”
The case of Cousins-Ingram v Burgess Glass Ltd highlights the importance of employers addressing matters fairly and appropriately and being alert to some of the key things a tribunal will consider when assessing the fairness of a conduct dismissal.
The Facts of the Case
The employee had worked as a glass cutter/glazier in a small family run firm for many years. In the owner’s absence he was the most senior employee. From around mid 2018 the owner considered that the employee’s performance had been deteriorating.
Around December 2018 a key client ordered a glass screen to be moved, the employee had been told not to do this by the owner as it could break and would be difficult and costly to replace. Under pressure from the site manager and unable to contact the owner, the employee moved the screen and it broke. The owner was aware of this shortly afterwards.
In January there were other errors on the same job including mis-ordering stock and the employer was being chased by their key client to complete the job. This led to a heated telephone conversation between the employee and the owner in which the owner told the employee to get out of his business before he destroyed it. The owner said he wanted the employee out of his business for two weeks and he wasn’t going to get paid. The employee asked him to put what was happening in writing. The owner told the employee he had made the biggest mistake of his life and had just lost his best friend, that he should lock up the shop and leave. The employee subsequently received a text from a client saying that she had been told by someone at the shop that he had been sacked.
The owner later issued a suspension letter to the employee setting out what he termed areas of concern and also acts of gross misconduct. The owner held an investigation meeting with the employee and he was subsequently invited to attend a disciplinary meeting to address gross misconduct allegations. These included in December ignoring an instruction not to move the double glazed unit, numerous instances of poor quality of work and errors. Following the disciplinary hearing, on 15th March the employee was dismissed for gross misconduct by the HR consultant who had chaired the meeting. The employee did not appeal but complained to the employment tribunal that he had been unfairly dismissed.
The employment tribunal agreed with the employee finding that:
- It was the owner’s decision to dismiss the employee and he had decided on that course of action on 10th January because the employee had asked to be told in writing what was happening to him during the telephone argument on that date. It was not the case as the employer had tried to argue, that he was compelled to dismiss the employee for gross misconduct following the disciplinary hearing held by the HR consultant in March. The judge found the owner had made up his mind in January to dismiss and told someone in the shop who then told the employee.
- Dismissing an employee for asking for clarification of what might have been a disciplinary sanction in writing is not a potentially fair reason for dismissal, as such dismissing for gross misconduct was not justified.
- The employee hadn’t breached the ACAS Code of Practice on Disciplinaries and Grievances when he didn’t appeal against the decision to dismiss him. The judge found the employee had acted reasonably in the circumstances as he had already had two “abrasive” meetings with the owner and the owner’s attitude would not change at the appeal stage – no different result would emerge. The employee’s lack of appeal would not therefore reduce the amount of compensation he would be awarded.
The judge went on to consider what the position would have been if he had held that the reason for the dismissal was conduct in relation to the incident in December and capability in relation to the errors. The judge held that even if the employee had been dismissed for those reasons, the dismissal would still have been unfair as:
- Classing the errors / conduct issue as gross misconduct fell outside the range of reasonable responses. No reasonable employer would have dismissed for the errors without a prior warning being given nor would they have dismissed for the December conduct issue.
- The errors were “gathered up” by the owner to support his case for the dismissal – they shouldn’t have been treated as misconduct let alone gross misconduct as they were poor performance issues. The owner was aware of the majority of the issues before the telephone conversation in January but had taken no action. The December misconduct issue wasn’t treated by the owner as such until he started “the process of bolstering his case.”
The amount of compensation the employee will be awarded will be determined at a later date.
Kingfisher’s Advice
It’s important to ensure that there are appropriate grounds for taking disciplinary, or other action in relation to an employee and that where there are, that the matter is addressed promptly, reasonably and fairly.
If you are concerned about the conduct or performance of an employee in your organisation, you should contact Kingfisher Professional Services Ltd for advice on the facts of your case before taking action.
If you have an employment law matter you would like assistance with please do not hesitate to contact us as we are happy to help.