Predetermined Dismissal Was Unfair

An employee who was dismissed after an argument with her manager has won her unfair dismissal claim after it was found that the investigation into her conduct was flawed, the decision to dismiss was predetermined and no fair process was followed.

The case of Holcroft v Applegarth Hotel Ltd is a reminder of some of the key basic principles when it comes to the fairness of a dismissal.

The Facts of the Case

The employee worked as a housekeeper in a family run hotel. She had nearly finished cleaning a specific area when another employee was sent to do it by the manager. The employee went to the manager’s office and a heated argument occurred, part witnessed by the manager’s husband who also worked at the hotel. The employee was told by the manager to leave the hotel.

Subsequently the employee sent an email to the Managing Director (who is also the manager’s mother) saying that after the ‘attack’ on her by the manager she didn’t know where she stood  as no-one had contacted her. She asked that someone get back to her to let her know if she was dismissed, suspended or still expected in work for her next shift.

The Managing Director responded saying that she had reviewed the CCTV footage and taken into account the attack on two senior members of staff in front of guests, that the employee had made her position untenable and that she was dismissed with immediate effect. The employee subsequently sent an email to the Managing Director challenging the decision to dismiss her and denying that there had been an attack as alleged and putting forward a different version of events. This was disputed by the Managing Director in a subsequent email to the employee in which it was also confirmed that the decision to dismiss her still stood.

The employee complained to the employment tribunal that her dismissal was unfair. The employment tribunal upheld her claim:

  • As the manager and employee put forward different versions of events as to what happened on the day, the tribunal had to make findings of fact as to what had occurred. The judge found that animosity had been building up between the manager and employee, the employee had gone to the manager’s office to confront her about the other housekeeper being sent to do her work and it quicky exploded into a heated argument. On the balance of probabilities, both women raised their voices and swore at each other with the manager telling the employee to leave the hotel. Both women were culpable for the argument with it only being brought to an end when the manager’s husband arrived and managed to exit the employee from the hotel.
  • It was found the employer had ‘entirely failed to conduct a reasonable investigation’ into the incident. The Managing Director had simply spoken to the manager and her husband and taken their explanation at face value. Aside from looking at the CCTV footage, of which the Managing Director took a ‘one-sided interpretation’, no further investigation was carried out. The employee was not spoken to. It was found that the Managing Director took a decision at that early stage that the employee would not be returning to the hotel and that the employee’s dismissal was pre-determined. There was no reasonable investigation upon which the Managing Director could properly conclude that the employee had acted in such a way as to justify a summary dismissal.
  • No fair disciplinary process was followed – the employee was simply dismissed by email without a disciplinary hearing. Furthermore, no appeal hearing was held following the employee’s email contesting the fairness of her dismissal. Rather, her dismissal was confirmed again by the same person.

Whilst the employee was found to have been unfairly dismissed, the judge did recognise that she was not a wholly innocent party, finding she contributed significantly to her dismissal. She confronted the manager who reacted angrily and during the course of the heated argument insults were exchanged and she swore at and insulted the manager. The compensation the employee will be awarded will be reduced to take this into account as well as the judge’s assessment that if a fair procedure had been followed there was a 35% chance she would have been dismissed in the future.

Kingfisher’s Advice

When it comes to dismissing an employee who has two years’ service or more it’s important to bear in mind that:

  • A full and thorough investigation should be carried out. What this will entail will depend on the facts of the individual case but in many instances it’s likely to include taking witness statements, reviewing documents such as policies, procedures, records, correspondence, and identifying the training the employee has received. It’s important to remember as part of the investigation employers will usually need to carry out an investigation meeting with the employee who is suspected of wrongdoing –  this is a fact finding meeting to obtain the employee’s version of events and is different to a disciplinary hearing. Remember that the investigation needs to be documented and that it should be conducted fairly, with an open mind.
  • If disciplinary action is to be taken it’s important to follow a fair process. In outline, this will involve formally inviting the employee to attend a disciplinary meeting, holding the meeting, giving the employee a written outcome and right of appeal. It should be borne in mind that unless it is unavoidable, employers will need to have different people of appropriate seniority conducting the investigation, disciplinary hearing and appeal hearing stages. The people responsible for carrying out each stage should not have any direct involvement in the matter. The reason for the separation of roles is so that the employee receives an impartial hearing. Don’t forget that employees have a right to be accompanied at disciplinary and appeal hearings by a colleague or a trade union representative. Kingfisher Professional Services Ltd can provide advice at all stages of the disciplinary process, including assistance with drafting disciplinary invitations.
  • If an employer wishes to dismiss, they will need to believe the employee to be guilty of the allegation(s) detailed in the disciplinary invitation, consider what is allowed for in the employment contract, consider whether they have reasonable grounds for believing that the employee is guilty based on a reasonable investigation and assess whether dismissal is ‘within the band of reasonable responses’. This will involve considering matters such as any mitigating circumstances and how such issues have been treated in the past. It’s important that employers seek advice on the facts of their case before dismissing any employee.

If you have an employment matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.

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