Claim
The Company was involved in negotiations with an IoM business with a view to expanding into that jurisdiction, the Claimant was supporting the process which then collapsed and the Claimant was instructed to cease her work on the scheme and to refrain from providing any information or documents to the IoM entity.
An external expert provided forensic evidence that the Claimant had continued to engage with the IoM business and to provide confidential and business sensitive information to them.
An external HR team was brought in to handle the investigation and disciplinary process. The Claimant was found to have lied during the investigation and refused to answer questions at the hearing. She also had covertly recorded in contravention of an instruction to the contrary. The outcome was summary dismissal which was upheld at appeal.
THE JUDGEMENT
The claims for unfair dismissal and wrongful dismissal both failed.
REASONS FOR THE DECISIONS
The Judge clearly preferred the evidence of the Company and ruled that the Company’s finding of gross misconduct was legitimate and that the decision to summarily dismiss was “within the range of reasonable responses” open to the employer. The Judge applied the Burchell tests from the landmark UK case of BHS v Burchell which the Jersey Tribunal consistently applies. These tests are –
(a) the employer believed the employee was guilty of the conduct;
(b) the employer had reasonable grounds upon which to sustain that belief, and
(c) at the stage at which he formed the belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.
The Judge ruled on the Claimants other arguments by finding that there was no evidence that the Company had perverted evidence as suggested by the Claim, and found no failings in the application of the disciplinary procedure. The Judge also took the opportunity to confirm that IF there had been procedural flaws that supported a finding of unfair dismissal he would not have hesitated in applying Article 77F of the Jersey law and the landmark UK case of Polkey and would have reduced the award to ZERO on the basis of the Claimant’s actions and conduct.
Finally, the unlawful dismissal claim for notice pay failed because it was found that the Claimant had been the party who breached the contract.
KEY POINTS AND LEARNING
- The Company, a small business was complimented on deploying external IT and HR experts to assist with the process, both of which were commended for their contribution, and many businesses would benefit from considering this approach.
- Ensure that your process and reasoning complies with the Burchell tests.
- Document and evidence the nature and seriousness of the conduct and behaviour to support a position on contributory fault (Article 77F and Polkey).The Jersey Tribunal has a strong track record of reducing awards for the “just and equitable” factor and for what is known as “contributory fault” related to the employee’s conduct, attitude, etc so this is an important fallback position .
- Take professional advice on whether and how to make sure your Response Form, evidence and statements make as strong a case as possible for a 77F/Polkey reduction in any award. The Claimant will always claim the maximum award and will invariably allege that JACS have told them that is what they will get. This can often assist in achieving sensible settlement agreements should that be a pragmatic and cost effective step to take.
- Take advice and make as strong a case as possible that it was the employee who breached the contract in order to defend claims for a notice payment arising from unlawful dismissal.
- Make sure your handbook and policy and documented scripts for meetings explicitly define covert recording as gross misconduct and an offence warranting summary dismissal in its own right.