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A lesson on how not to dismiss someone

The importance of carrying out a fair and reasonable disciplinary process has been highlighted recently in a Tribunal Claim involving Michelin in Dundee. Michelin’s motto is “a better way forward” and that will be a lesson which ought to taking to heart following the fine being imposed on them by the Employment Tribunal for breaching an Employees rights.

Earlier this year, Stan Reid was awarded £29,485 in compensation by the Employment Tribunal for Unfair Dismissal. According to the fit note he submitted he was unable to attend work due to stress. While he was signed off, he accompanied his partner to a Gin Tasting Festival in Glasgow. Mr Reid had posted a picture on Facebook that he was at the Gin Festival. His bosses at Michelin saw that photo and took from that, that if he was fit enough to attend the Festival then he was fit enough to attend work.

The events which had led to Mr Reid being signed off with stress were that an 18 year old son of a friend of Mr Reid had died after falling from some cliffs and then two other friends were killed at the wake for the teenager.

The Tribunal judge said that “none of those involved in the respondents decision making process appears to have engaged seriously with the circumstances leading to the claimants absence from work or his explanation for going to a Gin Festival or Facebook posting. Indeed his attempts to explain appear to have been used against him and justifiably as reasons for finding that he lacked insight into the seriousness of his conduct and showed no remorse.”

In addition to the compensation which he was awarded, the employment judge held that under Section 12A of the Employment Tribunals Act 1996, Michelin should be fined  £5,000  for breaching Mr Reid’s rights by failing to carry out a proper process. This is the first time that such a fine has been imposed under Section 12A, despite it being in force since 2014.

The failings of the Michelin were that firstly, the dismissing officer announced that the claimant was dismissed at the start of the hearing. He had therefore made up his mind and pre-judged the outcome before giving Mr Reid an opportunity to state his case. Secondly,  he had completely disregarded a fit note provided by Mr Reid’s GP which presumably confirmed the nature of his condition and why he was signed off from work.

So what should “the better way forward” be? How should you conduct a disciplinary process?

  1. Carry out as much investigation prior to the decision to invite the Employee to a Disciplinary Hearing. That may require there to be an investigatory hearing prior to the disciplinary hearing. Remember that an investigation is not a Disciplinary hearing.
  2. Give the Employee fair notice of the Disciplinary allegation and be clear in the letter inviting the Employee to the Disciplinary hearing that the Disciplinary hearing is an opportunity for the Employee to put forward their version of events;
  3. Don’t pre-judge the outcome of the Disciplinary hearing. What may look suspicious may have a perfectly innocent explanation;
  4. If the outcome is dismissal, then give the Employee the right to appeal against the decision to dismiss.
  5. In terms of Personnel involved in the Disciplinary process, the person conducting the investigation, should where possible be different from the person who carries out the disciplinary hearing. The person who conducts the Appeal Hearing should be different from the person that conducts the Appeal Hearing. I usually advise clients that they keep a manger or middle manager to dealing with the Disciplinary hearing and they keep their senior directors for any appeal hearing.
  6. Set out in the letter inviting the Employee to the Disciplinary Hearing that dismissal is a possible consequence.
  7. Provide the Employee with the evidence you have obtained in advance of the Disciplinary Hearing
  8. Ensure that the employee has been advised that they have the right to be accompanied to the Disciplinary Hearing by either a Trade Union Representative or a fellow work colleague.
  9. Ensure that a note taker is present to take notes of the meeting. Sometimes it is useful for a note taker to record the body language of those attending the meeting.

If you have any questions about how to deal with Disciplinary action against an Employee, then please contact our Julie Sullivan. Make sure that you take “the better way forward” and ensure that you are not on the wrong end of an employment tribunal judgement!

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