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Employee Dismissed for Deliberately Exposing Himself

Your employee undertakes a delivery for you and an incident happens between them and a local resident over parking. In a moment of anger your employee lowers his trousers and exposes himself to the resident…who of course takes a photo.

The employee has enough service to bring an unfair dismissal claim, would you think it was fair to dismiss him?

What if you found out about the incident because you ran a search in the company email account for something else and an email from the resident with the photo attached popped up…and it was from four years ago? Still happy with your answer?

What if that email had already been opened and viewed by management previously, would that change your mind?

This chain of events turned out to be more than a brief flash in the pan for the chip shop business involved in the case of Turhan v Poppies (Camden) Ltd. They decided to dismiss the employee but was that decision fair and did they go about it in the right way? Find out more below.

What happened?

When the director discovered the email, he decided to proceed with ‘disciplinary action’ against the employee. He held a brief impromptu meeting with him during which the photograph was shown/referred to but there was no serious attempt to pursue any explanation or persuade the employee to give any detail of the circumstances.

The employee was dismissed. He was not given written reasons for his dismissal or informed of a right of appeal, although he knew in principle that he could appeal.

The employee complained to the employment tribunal that he had, amongst other things, been unfairly dismissed.

The employee WON the claim.

The judge found that the dismissal was unfair as a reasonable investigation had not been carried out, there were significant procedural failings and the decision to dismiss was unreasonable. Amongst other things:

  • The judge said that whilst the director had not been aware of the email/photo from the resident until he found it, it had been opened before and on the balance of probability the relevant managers in the business had known about it when it was first sent in. The investigation that took place was limited and inadequate. It failed to consider what action, if any, had been taken at the time and, if no action had been taken, why this was the case. This was material to the fairness of the decision to dismiss.

  • The judge pointed out that under the ACAS Code of Practice on Disciplinaries and Grievances issues should be dealt with promptly. Whilst the director moved fast to hold the disciplinary after he found the email, considering the facts had been known by the employer for around four years there was a delay in that respect.

  • The judge was critical of the director taking no steps to delegate the investigation to any other person, but instead deciding to investigate the matter and conduct the disciplinary himself. Furthermore, there was no criticism of the employee for not appealing as he had been dismissed by the most senior person in the Company.

  • There were other “serious shortcomings in the procedure adopted”, including failing to give the employee written advance notice of the disciplinary hearing, failing to tell the employee what the allegation was, not providing the employee with the evidence and the hearing itself being “abrupt and inadequate”. The judge was also critical about the lack of documentary evidence.

This case highlights the importance of dealing with potential conduct issues promptly and appropriately. As it shows, what can at first glance appear to be a ‘slam-dunk’ case can have more to it than meets the eye.

Have a conduct issue you’re concerned about? Get in touch for specific advice on the facts of your case.

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