A recent ruling by the Employment Appeals Tribunal has seen an employee successfully argue that he was unfairly dismissed, and was re-engaged to their original role.
The claim was taken by the employee, because it came to the employers attention that the employee had been advising member of staff, how to defraud the company by taking time off with full pay by feigning injury or sickness, and he was then dismissed from Gross Misconduct.
The case in question, UD1927/2011, revolves around the employers concerns in relation to the employees actions of fraudulent activity. it was reported that the employee had told others to "go to the doctor and claim money from the Company".
Witnesses stated that employee in question was reported to have said to them to tell their manager that their hands were sore and to go to a doctor to get a certificate of the injury. He reportedly returned later that day to say if you wanted to take money from the company you could go to the company doctor and say its work related.
After the employee’s suspension with full pay was taking place, the employer appointed an investigator to interview a number of employees, who made allegations against the employee. The financial controller gave evidence that he was the decision maker in relation to the matter. The financial controller met with the employee, there was also an interpreter present. A further meeting was held later the same day at which the employee “was dismissed for gross misconduct”. A letter was sent to the employee the same day of the grievance meeting stating, that the employee was regretfully being dismissed with immediate effect, because of gross misconduct.
An appeals process took place, where the appeals officer did not go into the substance of the complaints and he confirmed the dismissal. The appeal’s officer was recently employed as an executive of the company. After reviewing the procedure he satisfied himself that, “the procedure adopted in the dismissal was in accordance with the company’s written disciplinary procedure”. The employee denied that he had acted fraudulently or encouraged others to act fraudulently. The employee also felt that the dismissal arose because of crossed words between the employee’s father, who is also an employee who was off sick, and the employer.
The Tribunal found that "the employee may have engaged in inappropriate banter with colleagues and that it was not inappropriate for the employer to investigate the matter" however the substance of the complaints against the employee did not justify the dismissal of the employee. Also on a technical issue the employee was not given an opportunity to confront those who had made complaints against him and “the statements were informally interpreted from Polish, and it is difficult for the Tribunal to rely on their accuracy or veracity without actually hearing the complaints”.
the Tribunal determined that re-engagement be the appropriate remedy in this case. Re engagement is a remedy whereby the employee is restored to their position, however unlike reinstatement no back pay is paid.
Impact for Employers
As we have discussed previously on the blog, Gross Misconduct requires very strong allegations and evidence. In this case the Tribunal felt it was not a case of Gross Misconduct, although the employer was justified in dealing with this. A procedural flaw in the process was the lack of an opportunity for the employee to confront witnesses/complainants and so employers should be aware that where possible statements are provided to the employee in advance of the hearing and where necessary those witnesses must be available for cross-examination.
