We consider two recent tales from the Tribunal, which highlight important issues around evidence when taking employees through a disciplinary procedure.
Mr Vorajee booked a flight to Mumbai, with the intention of booking time off work at short notice. However, his wife had an accident and so he cancelled the flight and requested special leave to look after her which his employer, Royal Mail, granted.
Royal Mail suspected that Mr Vorajee had in fact travelled during the period he was meant to be on special leave. They investigated, and Mr Vorajee was summarily dismissed following a conduct meeting.
Mr Vorajee appealed and pointed out that Royal Mail had mis-read his flight booking document. If read correctly, it clearly showed that the flight had been cancelled. He also provided an email from a business associate confirming they had met twice in the UK during the time that Royal Mail alleged he was out of the country, and he provided a certified copy of his passport which showed he had not travelled during the period of special leave. His appeal, however, was unsuccessful. The Appeal Officer felt that the timing of the flight was too much of a coincidence, and that the amount of evidence was an attempt by Mr Vorajee to ‘drown’ her with paperwork.
The Tribunal considered the legal test to be applied i.e. did Royal Mail have a reasonable belief, based on a reasonable investigation, that Mr Vorajee was guilty of misconduct, and was the decision to dismiss him within the range of reasonable responses? The Tribunal held that the evidence provided by Mr Vorajee was “overwhelming” and that whilst Royal Mail may have had a belief that he had travelled aboard during his special leave, the evidence showed it was not reasonable for them to sustain that belief. Mr Vorajee’s dismissal was found to be outside the band of reasonable responses, and therefore unfair.
Mr Sadeghi, who had worked for TK Maxx for several years, got into an argument with a customer who was attempting to get a refund on a pair of trainers. The customer became aggressive and started swearing loudly, there was a tussle and the police were called. The customer subsequently made a complaint to TK Maxx, who in turn undertook an investigation and suspended Mr Sadeghi. Following a disciplinary hearing, Mr Sadeghi was dismissed for gross misconduct. Mr Sadeghi had suffered from anxiety and depression for a number of years, however he did not mention this to the Disciplinary Officer.
Mr Sadeghi appealed against his dismissal and showed the Appeal Officer a letter from his GP and a prescription for anti-depressants, he also explained that his thinking was affected if he got angry. Mr Sadeghi mentioned that he had previously told his District Manager and Regional HR Manager of his condition and that he was on medication. Mr Sadeghi’s appeal was rejected and he brought claims in the Tribunal, including claims for unfair dismissal and disability discrimination.
The Tribunal found that Mr Sadeghi was dismissed for a potentially fair reason i.e. his conduct, and that TK Maxx had reasonable grounds to conclude he was guilty of misconduct. However, the decision to dismiss him was not within the range of reasonable responses of a reasonable employer.
The Tribunal concluded that the fact that Mr Sadeghi’s District Manager and HR manager had knowledge of his condition should have been fed into the investigation. There was also a complete failure on the part of the Appeal Officer to regard what Mr Sadeghi told him as worthy of further investigation.
In allowing Mr Sadeghi’s claims for disability discrimination, the Tribunal found that he had been put at a substantial disadvantage because his medical condition, and the treatment he was receiving, should have been taken into account, and medical opinion sought.
Whilst these cases are at Tribunal level only, and therefore are not binding on other Tribunals, they highlight some of the potential pitfalls that can be avoided by considering the available evidence thoroughly and/or considering whether to obtain medical evidence, before deciding the outcome of a disciplinary procedure. If you are in any doubt, it is best to take advice – our experienced team can help, so do get in touch.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).