In a recent case from the EAT we can see a prime example of the pitfalls an employer can meet when carrying out a disciplinary process. In this case the tribunal was extremely critical of the manner in which the employer acted and found in favour of the employee.
In the case of Sheils v Tesco UD626 [2011], the employee worked for the employer since 2004, and through numerous promotions was in charge of up to 70 staff as Checkout Manager at the time of the incident. In December 2010 an issue came to light where security personnel witnessed the employee misusing the value card he was issued by the employer. Company rules dictate that only the named person on the card can use this, and should the employee wish to allow someone else to use the card, then it must be transferred into their name and address.
The employee was invited to an investigation meeting and the matter was put to the employee, he stated that he believed his family was allowed to use it as he resided with his parents. He added that it was his money that was used for the purchases. In January 2011 the employee was invited to a disciplinary hearing where he was advised that he was in breach of the value card policy and would be invited to a sanction meeting, which took place a week later. He was informed he would be dismissed by the company. The employee appealed this decision and upon hearing the appeal, an independent appeals officer agreed that dismissal was the correct sanction.
The Tribunal in this case were very critical of the employers handling of this case and outlined several issues they had with the decision
- The unreliability of documents relating to the privilege card - the tribunal found that the rules regarding this were ambiguous at best and do not "set out with accuracy the rules relating to the use of the card".
- The lack of warning - the tribunal noted that at no point was the employee made aware that their actions amounted to gross misconduct worthy of dismissal, and also the employees unblemished record should have been considered (you may remember we have previously highlighted this in tribunal decisions).
- Improper Procedure - the Tribunal were satisfied that the employee was not adequately notified of the investigative and disciplinary hearings, he was not provided with material considered by the decision makers, he was not given an opportunity to respond to findings and accusations, and was mis-advised by the employer as to the gravity of the allegations.
The tribunal also criticised the case-law provided by the employer as the employer held it was the same issue, however the Tribunal felt that this was not the same and in the case they provided the employee was aware they were misusing the card. The Tribunal ordered the reinstatement of the employer as the appropriate sanction in this case.
What is interesting to note is that the procedures employed by the employer were very poor indeed, with numerous flaws, any one of which may have rendered the dismissal unfair. The use of value cards has been brought up before, not only in the case referred to by the employer (Uwadiae -v- Tesco Holdings Limited. UD1545/2009) but also in O'Halloran -v- Dunnes Stores Parkway (UD1503-2009) and Heffernan -v- Dunnes Stores (UD 1355-2009). This is not a new development, and the misuse or abuse of cards should be documented clearly so employees are aware of what is expected of them.
A clear policy is essential when having any sort of benefit such as this, and a consistent application of this must also be considered to ensure any misconduct which may occur is dealt with in a fair manner. In terms of the fair procedures that must be employed the rules of natural justice must be adhered to in any hearing, and in this case the employer neglected these rules by not providing notice of the hearings or details of the offences, and most importantly when dealing with matters of Gross Misconduct an employer must make the employee aware that the matter will be treated as such.
