A reminder of the Importance of procedure

A reminder of the Importance of procedure

Mr X (the Employee) v My Memory Ltd (the Employer)

By the time the case reached tribunal the only claim for the tribunal to consider was the Employee’s unfair dismissal claim.

The Employee’s claim was premised on the fact:-

1. The Employer failed to undertake any investigation or engage in a fair process prior to the dismissing him.

2. The Employee was not given the opportunity to appeal against the dismissal.

3. The Employee’s behaviour did not amount to gross misconduct.

The Employer argued it fairly dismissed the Employee on the grounds the Employee was “rude and dismissive” to one of its customers during a live online chat and that the Employee deliberately ended the online chat without having assisted the customer with their enquiry. This behaviour had a negative impact on the online reviews the Employer received which were key to its retail business.

Factoring in the size and administrative resources of an employer the tribunal is required to determine if the dismissal was fair or unfair having regard to the reason for the dismissal and assessing, in all the circumstances, if the employer acted reasonably in treating that reason as grounds for dismissing the employee. The dismissal will only be unfair if it falls outwith the band of reasonable response of a reasonable employer. This test means that a tribunal must make an objective assessment of an employer’s behaviour, while bearing in mind that a dismissal is not necessarily unfair simply because it would not have dismissed the employee if it were in the employer’s shoes.

This case has confirmed where dealing with employee misconduct the correct test to apply in Jersey is the UK case of British Home Stores Limited v Burchell which contains the often cited “Burchill Guidelines”, which state the tribunal must consider:-

1. Whether the employer genuinely believed the employee was guilty of the misconduct when it dismissed him;

2. If so, were there reasonable grounds for that belief;

3. If the employer carried out as much investigation in to the matter as was reasonable in all the circumstances before dismissing the employee.

After the Employee received a poor online review and complaint from a customer the Employer decided it needed to dismiss the Employee as it could no longer trust the Employee to assist its customers.

However, the Employer failed to follow a fair procedure (procedural unfairness) as:-
1. The Employer took the decision to dismiss the Employee prior to convening a dismissal meeting and failed to conduct a fair disciplinary hearing.

2. The Employee did not know in advance that he was attending a disciplinary meeting.

3. The Employee did not know he was at risk of being dismissed before the meeting.

4. The Employee did not know the case against him as he was not provided with any of the relevant documents.

5. The Employee was not given the opportunity to make proper representations as he had not seen the evidence against him.

6. The Employee was not given the right to appeal against the dismissal.

What will constitute reasonable investigation is fact specific, however as a minimum the Employee should have been given the opportunity to defend himself and to explain his actions. Based on the above procedural failings it was held the Employee had been unfairly dismissed.

The tribunal has the ability to consider if an employee’s award should be reduced. In this case it was deemed appropriate to reduce the Employee’s award by 40%. The reduction was on the following basis:-

1. 10% for the Employee’s contributory fault (i.e. his misconduct).

2. 30% reduction was applied on just and equitable grounds. When considering this the tribunal must consider if the employer can show it could have fairly dismissed the Employee, if so the tribunal can reduce the Employee’s award to reflect the possibility the employer would have done so. Here the tribunal concluded that a reasonable employer, faced with these circumstances and having conducted a reasonable investigation could have sufficient grounds to dismiss and there was a 30% chance of this happening.

Take-away points

1. The failure to follow your policies and procedures in relation to disciplining an employee can convert a fair dismissal into a an unfair dismissal.

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