Claim
What was the Claim?
The employee claimed that he was sacked when other drivers in similar circumstances had not been, that the offence had been described by a Magistrate as "minor" so gross misconduct was the wrong penalty, and that the dismissal was driven by a personal vendetta against him by a very senior manager who influenced and coerced more junior managers into perverting the disciplinary process as he wanted him to be sacked.
What was the employer's position ?
In essence, that the employee had broken the Highway Code, broken the law, exposed passengers, the public and the vehicle to unacceptable danger and risk, and behaved in a way likely to damage the reputation of the business. Furthermore - there had been a history of disciplinary warnings that had had no effect, and that the current case had involved a sound investigation and a thorough, detailed, evidence based and comprehensive appeal process.
What does the law say ?
The law requires the employer to demonstrate that ;-
1. they believed that the employee had committed gross misconduct.
2. that they had reasonable grounds to sustain that belief.
3. that a reasonable investigation had been carried out
4. that the decision was within the band of decisions that a reasonable employer could reach
What did the judge say?
That the vendetta allegation was "dismissed out of hand" and that the employee had a "twisted interpretation" (both quotes are strong language for a Tribunal judge to use).
That while there had been comparators who had not been dismissed they, in every case, had shown remorse and regret, accepted blame, and committed to not re-offending. Mr H was dismissive and negative about the incident and the disciplinary process and was described by the judge as "bumptious and unrepentant" (once again strong language for a Tribunal judgement).
That the Magistrates opinion was irrelevant to an employment law case.
That the employer easily passed the 4 tests referred to above in "What does the law say", giving praise to the investigation process, found the appeal to be exemplary good practice, and that the employer witnesses were found to be credible, compelling and truthful.
What was the decision ?
That the business was entitled to decide that its interests and those of customers and the public were paramount and that neither Mr H nor the Tribunal could dispute that the decision was "within the band of decisions that a reasonable employer could each". Therefore the dismissal was fair.
What are the key take aways and learnings ?
Employers must ensure that they comply with the 4 tests defined in the law - define the conduct, have grounds (evidence) to justify that decision, carry out a compliant and reasonable investigation, and make decisions that fall within the band of what reasonable employers could make. In order to do this employers need to have good contracts, job descriptions, handbooks and policies. They need managers who are competent and experienced to undertake investigations and act in hearings and appeals, and they need good data about previous cases in the business.
How can HR Now help ?
The HR Now team regularly advise and support business and clients of all sizes from all sectors on managing complex casework. We provide the highest quality handbooks, contracts and policies. We also provide effective training to enable mangers to carry out their roles in handling complex employee casework. We also assist businesses in procuring HR software/HR Information Systems that enable the production of reports, date and evidence.
HR Now offers a service that clients of all sizes and types, whether they have inhouse HR or not, are increasingly commissioning - which is for us to provide an all inclusive case management service from investigation to appeal providing clients with the confidence that our expertise and independence is beneficial in terms of negating the impact on the capacity of the business to deal with the matter and removing any personality related issues and of course guaranteeing expert, legally compliant processes and outcomes.
When it comes to Tribunal claims we offer a bespoke, tailored project approach to managing every stage of the Tribunal process from response to the claim form to representing at the final hearing. Our approach is (1) expert and professional, (2) offers value for money and (3) is underpinned by a successful track record of delivering results.