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Unfair Dismissal and Workplace Investigation Flaws

In the latest series of Employment Appeals Tribunal determinations from December, we look at finding of unfair dismissal where the respondent employer failed to carry out a proper workplace investigation.BackgroundIn the case of Rachel Bermingham v Marks and Spencer Ireland UD 601/2011, MN 639/2011 the claimant was duty manager and worked for the respondent who was a large multi-national company operating a number of stores in Ireland. The respondent had a strict policy on its mark down sales and it was strictly against store policy for staff to purchase stock before the opening hours of the store. The claimant purchased a number of items approximately 30 minutes before the opening of the store and allowed others to purchase goods also.At the subsequent disciplinary hearing the claimant stated she didn’t believe she had breached company policy however she was subsequently dismissed on four grounds including two breaches of the reservation of sale policy, breach of till procedures and engaging in shopping on company time resulting in the theft of company time. The store manager accepted that company policy made a distinction between negligent failure to follow procedures and deliberate failure. He also accepted that the claimant’s case was not discussed with the Head of HR and no other employees who had purchased stock along with the claimant were interviewed.On 14th August 2010 approximately two weeks after the incidents on 31st July 2010 the claimant received a highly effective performance review and learned that no sanctions were imposed on other employees. The claimant appealed the decision to dismiss her on six grounds set out in letter dated 22nd October 2010. The decision to dismiss the claimant was upheld on appeal despite no other employees being interviewed and no CCTV footage was checked. The claimant also stated that she was aware of practices in other stores and the time she had taken to purchase items she had given back in break time and had also commenced work earlier than usual. The claimant also stated that company reservation of sale policy referred to ordering and reserving items only and made no mention of purchasing and that she had interpreted the policy in this way. The claimant also accepted that she had made an error in using another employee’s log to make purchases and that she believed that given her history with the store manager that someone else should have conducted the disciplinary meeting.DeterminationThe Tribunal noted that in determining whether the claimant’s dismissal was unfair or fair, it had to look at the reasons for the dismissal and then decide whether the reasons were fair or unfair. in determining whether the respondent’s actions were fair or unfair the Tribunal had regard to Section 6(7) of the Unfair Dismissal Act 1977 (as amended) including:(a) the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant; and(b) the employer’s conclusions following such enquiry that the claimant should be dismissed.The Tribunal noted that the claimant breached company policy by purchasing and allowing other members of staff to purchase sale items prior to opening and she also breached till procedures. The Tribunal concluded that it was clear that the investigation procedure was flawed for the following reasons:(a) the claimant received one hour’s notice of the investigation meeting and was informed that the meeting was in respect of one matter only being the sales reservation breach whereas at the meeting several other matters were raised of which the claimant had no notice.(b) the disciplinary hearing was not objective as it was overseen by a person with whom the claimant had a past history as was clear from the evidence given at the hearing. The Tribunal noted that this hearing should have been overseen by an independent person with no knowledge or past dealings with the claimant.(c) when the claimant appealed the decision of the disciplinary hearing to dismiss her, the appeal was heard by a person who did not carry out an independent and objective review of the matter. The claimant or other staff members were not interviewed and no account was taken of the claimant’s good working record with the company and her own investigation was not conducted into the matter. The appeals person only read the file pertaining to the investigation which led to the claimant’s dismissal. The Tribunal noted

this evidence in particular left the Tribunal in no doubt that the appeal investigator failed to carry out an independent and thorough investigation and merely rubber stamped the earlier investigation

The Tribunal concluded that the dismissal was unfair but the claimant had contributed to her own downfall by her actions especially so given her standing in the company. In addition the claimant could have safeguarded herself by seeking authorisation from her superiors before carrying out the actions which led to her dismissal however she chose not to do so.The Tribunal ordered re-engagement from the date of receipt of the determination.

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