In the employment tribunals: December 2011

XpertHR provides summaries of recent employment tribunal rulings. 

Next employee unfairly dismissed for refusal to work Christmas Eve shift
Police force fairly dismissed community support officer after arrest over missing £15
Race and sex discrimination: former NHS doctor with post-traumatic stress disorder awarded almost £4.5m
Manager told Bangladeshi employee: “Your people are only good at corner shops and takeaways”
Unfair dismissal of reservist returning to work after deployment in Afghanistan
Administration did not justify failure to consult collectively over redundancies
Unfair dismissal: no compensation for dismissed employee who refused to communicate with colleague
Dismissal of Jehovah’s Witness who refused to work on Sundays was not religious discrimination
Age discrimination: employer justifies differences in treatment under early-release scheme
Postal worker "stabbed by a syringe" unfairly dismissed for taking one day's "fraudulent" sick leave

Note: The decisions are not binding on other tribunals and are intended to provide illustrations for employers of situations that have led to tribunal claims. They are reported on XpertHR as soon as the transcript becomes publicly available, which is normally four to six weeks after the judgment has been made. 

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Next employee unfairly dismissed for refusal to work Christmas Eve shift

Stott v Next Retail Ltd ET/2100960/11

Date added: 21 December 2011

unfair dismissal | unauthorised absence | requirement to work during key period

A store manager for this large retailer took the wrong approach to a shift worker who insisted that she was not able to work on Christmas Eve, in a cautionary tale for employers that have strict rules requiring employees to work during the Christmas period. 

Mrs Stott, an "exemplary" employee with a clean employment record, worked eight contractual hours and about four hours' overtime per week for the retailer Next. In October 2010, she paid a £50 deposit to attend her husband's Christmas work function on 24 December 2010. At that time, she assumed that she would not have to work on Christmas Eve. 

Around the end of November 2010, a poster appeared in the store stating that all staff would be required to work on Christmas Eve, 27 December and 28 December, under either their contractual hours or as overtime. The company did not provide any further information on this requirement. The employer later gave evidence to the employment tribunal that, not only was Christmas a crucial trading period, but extra staff were needed on Christmas Eve to prepare the store for Boxing Day (the first day of the sales). 

Mrs Stott left a note on the desk of the store manager, Ms Bennett, saying that she could not work on Christmas Eve. Mrs Stott later gave evidence to the tribunal that, while she knew that she was required to work on Christmas Eve, she believed that she had given adequate notice that she would not be available on that day. She also argued that, on 9 December 2010, she had spoken to the deputy store manager, Mr Moore, and shown a willingness to be flexible by offering to work on another day over the Christmas period. 

On 16 December 2010, Ms Bennett told Mrs Stott that her alternative suggested dates were not acceptable and she would face "disciplinary action" for unauthorised absence if she did not come to work on Christmas Eve. 

Mrs Stott made the decision not to come to work on Christmas Eve, but did work on the other required days, 27 and 28 December. On 28 December, Mrs Stott was invited to attend a disciplinary hearing on 4 January 2011, at which she was summarily dismissed. Ms Bennett, who chaired the hearing, took the view that the claimant had wilfully committed gross misconduct by "simply not attending work because she wanted to go to a party instead". Mrs Stott's appeal, heard by the manager of another Next store, Mr Orme, was unsuccessful. 

Mrs Stott claimed that her dismissal was unfair because:

• she did not realise that she was committing such a serious offence and was not warned by the employer that her failure to work on Christmas Eve was likely to result in her dismissal;
• another employee, Ms Dawson, who had also refused to work on Christmas Eve was treated differently because she had been given a much more explicit warning of the possible consequences and was given a final written warning when she did not come to work; and
• given the claimant's previous good record and long service, dismissal was too harsh a sanction. 

The employer's main argument was that Mrs Stott, who was a long-serving employee who had signed the staff handbook, which gave "unauthorised absence" as an example of gross misconduct, did know, or ought to have known, that her non-attendance was likely to result in dismissal. 

The employment tribunal held that the employer had made presumptions about what Mrs Stott did know, or ought to have known, about the rules on attending work on Christmas Eve. She simply did not know, and was not warned that, dismissal was a possible, and as it transpired highly probable, outcome of her conduct. The managers who had conversations with Mrs Stott on 9 and 16 December did not unambiguously tell her that she would be at serious risk of dismissal if she did not come to work on Christmas Eve. 

The tribunal rejected the employer's argument that Mrs Stott's long service meant that she should have known about the strictness of the requirement to work on Christmas Eve. She worked only eight contractual hours per week and was not in a management or supervisory role. In addition, the sanction of dismissal for non-attendance was rare at Next. In fact, the company had only started opening its sales on Boxing Day from 2009, making the requirement for extra Christmas Eve staff to get the store ready for the sales a recent development. 

The employment tribunal also accepted that Ms Dawson had been treated differently in similar circumstances. She had been given fuller guidance on the possible consequences and, when she did not come to work, there had been a "full and frank discussion" over the reasons for her non-attendance on Christmas Eve. 

The tribunal was aware that Christmas is a very important period for the company, but it did not see this as a case of business necessity. The company could have managed, and indeed did manage, without the claimant on that day. If the employer had wanted to send a clear message to staff about the need to work during this important period, a more proportionate way of doing this would have been to give Mrs Stott a final written warning, especially given her previous good record. 

While the employment tribunal found that Mrs Stott's dismissal was unfair, it did reduce her compensation by 30% because she had been partly at fault for simply deciding not to come to work on Christmas Eve. 

Additional resources

• Engineer unfairly dismissed for refusal to work during annual shutdown The employer in this tribunal case ran into trouble when it dismissed an employee after he refused to work on some days during the company's annual shutdown, because it did not make clear that the outcome of his refusal could be dismissal. 
• The XpertHR FAQs section answers questions on overtime and the refusal of employees to work:
• Can employees be required to work paid or unpaid overtime?
• Are employers required to pay a premium to employees who work overtime?
• Must an employer still pay the wages of an employee who has expressly refused to perform any work?
• Contract clause on flexibility of job duties Use this model contract clause when drafting an employee's contract or employment particulars to give flexibility to require an employee to perform duties not specified in his or her job description or any other document. 

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Police force fairly dismissed community support officer after arrest over missing £15

Tuttlebee v Essex Police ET/1500279/11

Date added: 20 December 2011

unfair dismissal | misconduct | allegation of theft | evidence

This employment tribunal found that a police force fairly dismissed a police community support officer (PCSO) over the unexplained disappearance of £15, despite the circumstantial nature of the evidence against her. 

PCSO Tuttlebee had served as a PCSO with Essex Police from 1 November 2004 until her summary dismissal on 12 November 2010. 

On 1 July 2010, a schoolboy lost his wallet and a member of the public, Mrs Hopper, handed it to PCSO Tuttlebee while she was on patrol. PCSO Tuttlebee entered the incident into her pocketbook, recording that a "black leather wallet" was handed in at 12.15pm and Mrs Hopper's personal details. She did not record the contents of the wallet. Mrs Hopper later gave evidence that PCSO Tuttlebee examined the contents and there were some bank notes in it. PCSO Tuttlebee told a colleague, PCSO King, that the wallet had not been opened. 

A few days later, PCSO King had occasion to visit the claimant's locker and discovered the wallet. After some delay to deliberate what she should do, PCSO King reported the matter to her superior, Sergeant Hayter, who retrieved it, booked it into the lost property system, and returned it to the schoolboy. The boy said that there had been £15 in the wallet when he lost it. 

PCSO Tuttlebee was suspended from work and arrested and, during the subsequent investigation, admitted that she should have entered the wallet into the lost property system, but said that she was "absolutely baffled" by the allegations that she had taken £15. The evidence that she gave in the criminal investigation was somewhat confused, arguing that she had to deal with so many incidents each day that she could not remember exactly what had happened when the wallet was handed in. She did not deny that she had left the wallet in her locker, which was left unlocked. 

The case was not referred to the Crown Prosecution Service because the senior officer, Chief Superintendant Folkard, felt that the matter was best dealt with as an internal misconduct issue. Following an investigation, there was a disciplinary hearing, during which Ms Tuttlebee admitted to failing to put the wallet into the lost property system. The claimant also argued that there was access to the wallet because it was left in the unsecured locker and her retention of the wallet did not make sense if she had stolen the money. Ms Tuttlebee was dismissed for gross misconduct, a decision that was upheld on appeal. 

The employment tribunal dismissed PCSO Tuttlebee's claim for unfair dismissal. The police force was entitled to come to the conclusion that she had in fact taken the money. The "disturbing inconsistencies" in her story meant that it was hardly surprising that the employer, which had a genuine belief in her guilt based on reasonable grounds, found that she had committed gross misconduct. PCSO Tuttlebee was in a "haze of uncertainty" over what happened to the wallet from the time that she brought it back to the station until Sergeant Hayter recovered it from her locker many days later. On the one hand, she insisted that there was no money in the wallet, but, on the other hand, she said that she had not checked it and, if there had been money in it, another person could have been the thief. Her story was inconsistent with the version of events given independently by two members of the public. 

The employment tribunal went on to consider whether or not the sanction of dismissal was too harsh. The tribunal concluded that it found it "hard to contemplate a more appropriate situation" for the sanction of dismissal than a member of the police being found to have stolen property entrusted to him or her by a member of the public who has done the honourable thing. 

The tribunal pointed out that it is not its duty to decide the guilt or innocence of the claimant, but merely to assess whether or not the employer acted reasonably in the circumstances. 

Additional resources

• Police worker fairly dismissed for "forgetting" personal details during arrest In this case, the tribunal held that a police force was entitled to dismiss a long-serving employee who admitted that she had committed a single act of dishonesty outside work. 
• Fair dismissal of civilian police worker convicted of dangerous driving A civilian police worker unsuccessfully claimed unfair dismissal and disability discrimination after she lost her job for a dangerous driving conviction. This is an example of an employer legitimately dismissing a worker who has been convicted of a criminal offence outside work. 
• In the employment tribunals Read summaries of more cases in which police forces were respondents in employment tribunals: 
• Race discrimination in the police This article summarises the main issues and outcomes in five employment tribunal cases where it was claimed that a police force committed race discrimination. 
• Disability discrimination in the police This article summarises the main issues and outcomes in five tribunal cases brought by police officers under the Disability Discrimination Act 1995. 

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Race and sex discrimination: former NHS doctor with post-traumatic stress disorder awarded almost £4.5m

Michalak v Mid Yorkshire Hospitals NHS Trust ET/1810815/08

Date added: 16 December 2011

sex discrimination | race discrimination | compensation

This employment tribunal has awarded a former NHS doctor one of the largest ever discrimination payouts after she was subjected to a sustained campaign of sex and race discrimination. The tribunal found the NHS trust and three senior managers, one of whom was the HR director, jointly and severally liable for compensation. 

In June 2010, the employment tribunal upheld various claims brought by Dr Michalak against Mid Yorkshire Hospitals NHS Trust, including her sex and race discrimination claims. Dr Dawson, the trust's former medical director and interim chief executive, Dr White, Dr Michalak's former head of department, and Mrs Nicholls, the trust's director of human resources, were found jointly and severally liable for the discrimination. 

The tribunal found that Dr Michalak, a female doctor who moved from Poland to practise in the UK in April 2002 until her dismissal in July 2008, was subjected to a concerted campaign designed to bring her employment with the trust to an end. The campaign led to a "bogus" disciplinary procedure being adopted and an unjustified and lengthy suspension leading to her dismissal. 

The employment tribunal gave the remedy judgment in December 2011. A medical report concluded that Dr Michalak had suffered from chronic post-traumatic stress disorder, displaying symptoms such as:

• insomnia;
• nightmares in which she relives the events with the trust;
• episodes of tightness and chest pain;
• poor concentration;
• lack of libido; and
• poor memory. 

The report stated that Dr Michalak had been suicidal and her condition was caused by her treatment at the trust:

"Her condition arises from her experiences at the hands of her employer. Experiences as she described to me were found as facts by the Court. There is no other underlying cause in her medical history and no history of mental ill-health arising prior to her employment in Pontefract. The trauma she suffered went beyond upsetting situations of everyday life such as divorce, bereavement, failed examination, redundancy, etc. The lengthy campaign and the fact that the wellbeing of the complainant, her child and family was involved were of importance for the severity of the injury. Her self identity is connected to the quality of her work and her family responsibilities and the Trust’s actions were perceived as an exceptionally threatening assault."

The medical report cast doubt on whether or not Dr Michalak would ever be able to return to practising medicine, as her condition was so serious that she had become unable to accomplish even the most basic everyday tasks. 

The award for sex and race discrimination included:

• £30,000 for injury to feelings, which is at the upper limit of the Vento band;
• £56,000 for psychiatric injury;
• £4,000 in exemplary damages;
• over £43,000 for the past cost of care for her and her young son, whom she became unable to look after;
• over £31,000 for the estimated cost of future care; and
• £50,000 for medical treatment. 

However, the majority of the award was for future loss of earnings (almost £942,000) and pension benefits (over £666,000). 

The claimant, who was born in 1958, argued that her future loss of earnings and pension should be worked out on the assumption that she would have worked until she was 75 years of age, principally on the basis that this was a job that she loved and she was a "late starter" to the NHS Pension Scheme. employer relied mainly on statistical evidence that shows that only a small percentage of consultants work beyond the age of 60. 

The employment tribunal settled for a prospective retirement date somewhere in the middle. As Dr Michalak had been "in the early stages of her career" with the NHS, she would have had no reason to make positive plans for her retirement date. The tribunal also recognised that the age at which workers are generally retiring is rising. However, the tribunal went on to say that, although the claimant may have had a general belief that she was likely to work to the age of 75 to maximise her pension, such beliefs change over time. Her health may have dictated how long she was going to work and it was not uncommon for doctors to leave the NHS and go into private practice in their later years. The tribunal concluded that compensation should be based on Dr Michalak retiring at 68. 

Once other sums were added (including interest of almost £20,000, a £10,000 for a preparation time order and over £7,000 for unfair dismissal), the award was "grossed up" to allow for the tax that had to be paid on it. The total came to £4,452,206.60. 

Additional resources

• Sex discrimination awards 2010/11 and Race discrimination awards 2010/11 The 2010/11 Tribunals Service report on employment tribunal and Employment Appeal Tribunal statistics sets out the amount of compensation awarded for sex and race discrimination in 2010/11. 
• In the employment tribunals Read summaries of more cases in which employment tribunals paid large awards: 
• Unfairly dismissed whistleblower wins £1.2 million compensation Compensation for a successful whistleblowing claim is unlimited, as the employer in this case found to its cost. 
• £792,000 award for harassed and unfairly dismissed disabled football journalist In this case, the employer’s unrelenting desire to dismiss the employee resulted in the highest disability discrimination award in the period from 1 April 2009 to 31 March 2010. 

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Manager told Bangladeshi employee: “Your people are only good at corner shops and takeaways”

Uddin v Direct Response Security Systems Ltd and another ET/1311988/10

Date added: 15 December 2011

race discrimination | direct discrimination | harassment

In this case, a company was held to have harassed and directly discriminated against an employee on the ground of his race in the two weeks he worked for it. 

On 10 June 2010, Mr Uddin, who is of Bangladeshi Asian origin, began employment with Direct Response Security Systems Ltd, working in its telesales department. As with several other matters, the parties later disputed his termination date. The company claimed that it was Monday 28 June 2010, whereas on Mr Uddin’s case it was 25 June 2010. 

Mr Uddin’s evidence was that, when he started work, he received an induction from Ms Brennin, who introduced Mr Evans as his line manager. He claimed that Mr Evans managed him during his brief time with the company, and the two did not enjoy a good relationship. 

Mr Uddin claimed that, on the date of the England v Algeria World Cup 2010 football match, 18 June, Mr Evans asked him why his “people” did not have a team in the competition. Mr Uddin assumed the comment referred to Bangladeshi people, and replied that he did not know. He claimed that Mr Evans said: “Your people are only good at corner shops and takeaways”, and that this comment “shocked, deeply offended and humiliated” him. 

A few hours later, Mr Uddin alleged, Mr Evans asked him to stand up to make his sales calls. The company had a practice of requiring team members to stand up, from time to time, when making calls, which it believed “generated energy, led to more effective sales techniques and increased performance”. This request was made of groups, not of individuals: the only time that an individual would be asked to stand would be if the rest of the team were already standing and he or she was not. Mr Uddin claimed that Mr Evans singled him out by asking him to stand when he did not ask other members of the team to do so. 

Mr Uddin said that he found the request “bizarre” and told Mr Evans that he could not stand because his back was hurting. He claimed that Mr Evans replied: “Fuck off you’re finished.” Mr Uddin claimed that he left immediately in response to the “unambiguous words” and treated himself as having been dismissed. He claimed that, on his way out of the building, he met another manager, Mr Fry, and reported what had happened. He claimed that Mr Fry said he would look into the matter, but heard nothing further. 

Mr Uddin claimed race discrimination. 

The company alleged that Mr Uddin was dismissed on 28 June, by Ms Brennin. It claimed that the reason for dismissal was because, on 25 June, Mr Uddin had offered to sell cocaine to a manager, Mr Seston. 

The tribunal found inconsistencies in the evidence of both Mr Uddin and the company. In Mr Uddin’s case, this concerned him changing his evidence about the date on which he had been instructed to stand up by Mr Evans and of his dismissal. The tribunal found that the dismissal took place on 25 June. Aside from this matter, the tribunal found Mr Uddin’s evidence to be consistent, and considered him a credible witness. 

In contrast, the tribunal found “considerable inconsistency and evasiveness” in the evidence of the company’s witnesses, particularly in relation to the position of Mr Evans, whom the company alleged was not an employee. 

The tribunal found that Mr Evans was, for the purposes of the Race Relations Act 1976, an employee of the company; that he was acting in a supervisory role over Mr Uddin; and that he was acting in the course of his employment when issuing the instruction to stand and when he dismissed him. 

The tribunal found on the balance of probabilities that a warning that had been issued to Mr Evans in July 2010 related to Mr Uddin’s complaint about his behaviour. The tribunal found Mr Uddin’s evidence about Mr Evans' remark to him credible, and that the remark constituted racial harassment. 

With regard to the “standing” incident, Mr Uddin’s version of events had not been directly challenged by the company at the hearing, and the tribunal heard no evidence from any members of staff who were present on the day in question. The tribunal found that Mr Uddin had proved primary facts from which it could conclude, in the absence of an alternative explanation, that the company had discriminated against him by Mr Evans’ request that he stand “alone” and by dismissing him for refusing to do so. 

The tribunal found no evidence to support the company’s allegation that Mr Uddin had tried to sell Mr Seston cocaine and that he was dismissed for this. The company did not report the matter to the police, and there was no documentary evidence to support it. There was no letter of dismissal and no disciplinary process. Further, the evidence of Ms Ruthie, whom the company alleged had overheard the conversation in which it claimed Mr Uddin had attempted to sell cocaine, made “no reference at all” to this matter. The tribunal concluded that the company had failed to prove that there was a non-discriminatory explanation for the “standing” incident and Mr Uddin’s dismissal, and held that these events both constituted direct race discrimination. 

The tribunal specifically noted that the company had given no instruction or training to Mr Evans or any of its employees about their duties and responsibilities under equality legislation. It had not done anything that could amount to “reasonable steps” to prevent Mr Evans from discriminating against Mr Uddin in the way that he did. 

Additional resources

• Policy on sporting and other special events Use this model policy to deal with absence and other issues arising at the time of sporting or other special events such as the World Cup football tournament or the Olympic Games. 
• Should employers adopt a sporting events policy and what should it include? Get the answer in XpertHR's FAQs section. 
• Get more information on racial discrimination in the XpertHR FAQs section:
  • How are employees protected from racial discrimination?
  • Are employers liable for any racial discrimination suffered by employees?
  • If a third party harasses an employee, will his or her employer be liable for the third party's actions under the Equality Act 2010?

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Unfair dismissal of reservist returning to work after deployment in Afghanistan

Leveratt v Mitie Security (London) Ltd ET/3201280/09

Date added: 15 December 2011

unfair dismissal | reservist's demobilisation | refusal of client to have employee back

In this case, the employer failed to meet its legal obligations to an employee who was a reservist returning from deployment in Afghanistan. The case was complicated by the fact that it was a client's refusal to have the employee back on site that resulted in his dismissal. 

From April 2005, Mr Leveratt was employed by security firm OCS Security and was a member of the Territorial Army. In June 2007, Mr Leveratt was mobilised for around one year in Afghanistan. 

At the time of Mr Leveratt's mobilisation, he was working as a control room manager at a London branch of Barclays Bank plc. He had received some close-protection training and carried out close-protection duties for the chairman of Barclays. Barclays held a reception for Mr Leveratt and two of his subordinates before they were mobilised. 

In May 2008, Mr Leveratt returned from his military service, with the security contract having been transferred to Mitie Security (London) Ltd. Mr Ross (a manager at Mitie) claimed that, during the transfer period, he was told by Mr Samuels, who was employed as the control room manager in Mr Leveratt's absence, that Barclays did not want Mr Leveratt back. 

Mr Ross later gave evidence to the tribunal that Mr Woods (a security manager at Barclays) had told him "very forcefully" that the bank had funded Mr Leveratt's close-protection training on the understanding that he would not be leaving to serve overseas. When this happened shortly after the training was completed, this was apparently seen as a betrayal of the agreement. Mr Ross said that, although he had told Mr Woods that Mr Leveratt was due back and wished to return to his old job, Mr Woods was adamant that he would not be allowed back at Barclays. Mr Ross tried to explain that Mitie had "obligations under TUPE", but "it became apparent to [him] that further conversation was fruitless". The tribunal noted that no one at Mitie, including Mr Ross, was aware of the provisions of the Reserve Forces (Safeguard of Employment) Act 1985. 

In June 2008, Mr Leveratt was told that he would not be allowed to return to Barclays. From June to August 2008, he made efforts to find out what had happened. Mr Ross made efforts to find another position for Mr Leveratt, who did temporarily take a corporate role. Mr Leveratt refused to accept another long-term position until the Barclays matter was resolved. 

Ms White, an HR professional with Mitie, made further efforts to find out from Mr Woods why Mr Leveratt could not return to Barclays. It appeared at one stage that the matter might be resolved, but Mitie received an email from Barclays in January 2009 stating that "a number of sources" had identified Mr Leveratt as "a disruptive influence" and that it had lost confidence in him. 

Although Mitie pointed out that it was not aware of any issues with Mr Leveratt's performance, this was Barclays' final decision. Mr Leveratt turned down an offer of another position on new terms and conditions with Mitie. After a formal four-week consultation period in which Mitie looked for another position for him, Mr Leveratt was dismissed in March 2009. He claimed unfair dismissal. 

The employment tribunal held that Mr Leveratt had been unfairly dismissed. The tribunal found that Mitie had breached the statutory dismissal and disciplinary procedure (which was still in force at the relevant time) because Mr Leveratt had not been given a right of appeal. 

The tribunal also held that the dismissal was substantively unfair. Mitie argued that the dismissal was fair for "some other substantial reason" because it had been put under pressure from a third party. The tribunal referred to Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466 EAT, which said:

"Cases of this kind are not very comfortable for an employment tribunal. Nevertheless, it has long been recognised that the fact that the client who procures, directly or indirectly, the dismissal of an employee may have acted unfairly, and that the employee has thus suffered an injustice, does not mean that the dismissal is unfair within the meaning of the statute. That is because the focus of s.98 of the Employment Rights Act 1996, and its statutory predecessors, is squarely on the question whether it was reasonable for the employer to dismiss." 

But the tribunal also noted that the Employment Appeal Tribunal in Henderson went on to say:

"...in a case where the client's stance appears liable to cause injustice, the tribunal must consider with special care whether the employer had indeed done all that he could to avoid or mitigate that injustice: in a case of patent injustice it may be necessary for an employer to pull out all the stops." 

It struck the tribunal that the client in this case, Barclays, had given two different reasons for refusing to have Mr Leveratt back: initially, it was that he had broken the agreement about close-protection training; later, it was that his performance had been unsatisfactory. The reasons given by Barclays were "to say the least vague in the extreme". The tribunal found that Mitie should have gone further in its communications with Barclays. It highlighted that, after Mr Leveratt had returned (in June 2008), there was a long delay in Mitie finding out the reasons for the client's actions (in August 2008) and getting a final decision from it (in January 2009). 

The tribunal did not consider that Mitie's efforts represented it doing "everything that [it] reasonably [could] to avoid or mitigate the injustice brought about by the stance of the client". The tribunal was not convinced by Mitie's argument that Barclays would have refused to have Mr Leveratt back whatever it had done. The tribunal felt that, had Mitie made clear that a reservist returning after deployment has statutory rights to ask for reinstatement, a company of Barclays' standing would have taken the matter very seriously. 

In deciding the amount of compensation, the tribunal took into account the breach of the statutory dismissal and disciplinary procedure and its assessment that, if Mitie had been more forceful with Barclays, there was a 75% likelihood that Barclays would have allowed Mr Leveratt to return. 

The total compensation awarded came to £8,737. 

Additional resources

• How to respond when members of the Reserve Forces are called up for military service This "how to" article sets out the employer's obligations when members of the workforce are called up for military service. 
• Policy on employing reservists Use this model policy when drafting a policy on supporting employees who are reservists. 
• How to deal with the situation where an important client refuses to have an employee back on its site This article in the XpertHR "how to" service provides guidance on dealing with the situation where an important client refuses to have an employee back on its site. 

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Administration did not justify failure to consult collectively over redundancies

Cyngier and others v Eurodix Ltd ET/1901358/11 to ET/1901362/11

Date added: 8 December 2011

redundancy | collective consultation | protective award

The employer in this case fell into the classic trap of burying its head in the sand and failing to consult collectively with employees over the realistic possibility that its business might close and its workforce be made redundant. 

The company's business was supplying fruit on a wholesale basis to a number of supermarkets, including Morrisons, the Co-op, Aldi and Budgens. At least 25% of the company's business came from Morrisons, which decided to change its strategy to "vertical integration" from autumn 2010. This meant that the supermarket began to cut out the middleman and deal directly with the supplier to get its fruit. Senior management at the company was aware that this was Morrisons' plan, but the company had other issues that contributed to trading difficulties from October 2010. 

The company went into administration in July 2011, at a time when it was already insolvent (with the loss of business from Morrisons a contributory, although far from the decisive, factor, the tribunal later observed). The administrators gave advice to some employees and provided them with forms from the Insolvency Service to claim redundancy pay, if that became necessary. 

The administrators made the decision to continue trading, with a view to selling the company and perhaps moving to a different area of business, for example the supply of chocolate. However, there was still no buyer by 1 August 2011, and stock was run down in anticipation of the closure of the business. The decision was made on 5 August to close the business and dismiss the 41 members of staff. The administrators acknowledged that, although they had talked to some employees about the difficult trading situation, they had not indicated to staff that they intended to close the business and dismiss them. 

Five employees from the packhouse department, including Mrs Cyngier, who was the packhouse operatives' elected representative for the purposes of collective consultation, claimed protective awards for failure to consult on collective redundancies under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. 

The company accepted that it had not consulted under s.188, but argued that it had a defence because there were "special circumstances", under s.188(7), that rendered it not reasonably practicable to consult collectively. The company submitted that it could not have meaningful consultation with employees once the administrators were brought in. It said that the decision to make the employees redundant was made by the administrators on 5 August 2011 and there was no chance to consult with the workforce prior to this decision being made. The company had tried to keep the business open and it was only at a late stage that it knew that everyone would be made redundant. 

Further, the company argued that, even if the "special circumstances" defence did not apply, the protective award should be limited to 10 or 20 days' pay, rather than the maximum permitted award of 90 days' pay. 

The employment tribunal referred to The Bakers' Union v Clarks of Hove Ltd [1978] IRLR 366 CA, which is the leading authority on "special circumstances" in collective redundancy consultation. The Court of Appeal in that case said:

"It will depend entirely on the cause of the insolvency whether the circumstances can be described as special or not. If, for example, sudden disaster strikes a company, making it necessary to close the concern, then plainly that would be a matter which was capable of being a special circumstance; and that is so whether the disaster is physical or financial. If the insolvency, however, was merely due to a gradual run-down of the company, as it was in this case, then those are facts on which the Industrial Tribunal can come to the conclusion that the circumstances were not special. other words, to be special the event must be something out of the ordinary, something uncommon; and that is the meaning of the word 'special' in the context of this Act."

The tribunal surmised from this decision that insolvency, the appointment of an administrator and the failure to find a buyer cannot be special circumstances in themselves. There has to be "something out of the ordinary" for special circumstances to exist. The tribunal considered the circumstances in the present case to be an "entirely ordinary situation". There are hundreds of examples each year of companies gradually getting into financial difficulties; appointing an administrator; the administrator trying to find a solution; and it being necessary to close the business when a solution is not found. In this case, the prospect that the business could not continue was "on the cards for a significant period". Although the company relied on the loss of business from Morrisons as the main reason for the failure of the business, the tribunal decided that this was just one of a number of factors and the company's management should have tried to look for a buyer much earlier. It was not surprising that the administrator could not rescue the business, given the short period of time that they were given. 

The tribunal concluded that this was a standard situation of a company going downhill and eventually deciding to bring in the administrators, with the result that the business was closed and everyone was made redundant. There were no special circumstances that meant that the company should not have begun consulting its workforce in advance of the administrators being appointed. 

When deciding the level of the protective award, the tribunal could see that the administrators were in a difficult position and did do what they could to help the employees. However, the assistance that employees had received was marginal and not up to the standard set out in the Trade Union and Labour Relations (Consolidation) Act 1992. The tribunal awarded each claimant 70 days' pay. 

Additional resources

• Shanahan Engineering v Unite the Union EAT/0411/09 The Employment Appeal Tribunal held that, even where "special circumstances" existed in a collective redundancy situation, the employer was not totally relieved from its obligations to consult with the affected employees. However, the EAT allowed part of the appeal by remitting the matter of the protective award back to the tribunal. 
• Liveflo: redundancy Use this workflow where a business or workplace is closing, or there is a diminished need for employees to carry out work of a particular kind. 
• Informing and consulting prior to redundancies The XpertHR employment law manual provides guidance on informing and consulting prior to redundancies. 

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Unfair dismissal: no compensation for dismissed employee who refused to communicate with colleague

Mealing v Edmonds t/a The Gatehouse Diner ET/2701810/11

Date added: 8 December 2011

unfair dismissal | personal dispute | refusal to communicate with colleague

In this case, a small employer had to deal with a familiar problem for employers: what to do if employees' behaviour becomes unprofessional because they have fallen out with each other. 

Ms Mealing worked in a small diner, which had a small number of staff who worked in a confined space. It was evident to the tribunal that this working environment "required goodwill and cooperation between those who worked there". 

Ms Mealing had been friends with another employee, Mrs Morris, for many years. They had both joined the employer in 2002, so had worked together for many years. By the second half of 2010, Ms Mealing and Mrs Morris had "fallen out badly" and "had ceased to speak to each other", for reasons that the tribunal declined to examine. 

Just before Christmas 2010, one of the owners of the business at the time, Mrs Heasman, spoke to the two employees to remind them of the need to maintain a proper working relationship, whatever had happened to their friendship. After this, they agreed to resume speaking to each other, but the relationship soon deteriorated again. By early 2011, Ms Mealing was refusing to speak to Mrs Morris. When Mrs Morris spoke to her, Ms Mealing either ignored her completely or gave her the most cursory response possible. 

The respondent in this case, Ms Edmonds, bought the business in February 2011. Ms Edmonds, who was inexperienced in business, was keen to draw on the experience of both employees, given their long service at the diner. Mrs Morris told Ms Edmonds about her poor relationship with Ms Mealing. 

On the advice of an employment consultant, Ms Edmonds invited Ms Mealing and Mrs Morris to separate disciplinary meetings, which took place on 23 March 2011. The meetings were also attended by the assistant manager, Mrs Goodyear. Whereas Mrs Morris indicated that she would be willing to speak to Ms Mealing again, Ms Mealing said that she would "think about it". Ms Mealing also said that she could not remember why they had fallen out. 

Shortly after the meetings, Ms Mealing sent at least four text messages to Mrs Morris. One text message that was not available to the tribunal was alleged to have called Mrs Morris a "grass". However, three further text messages were presented as evidence to the tribunal, which reproduced them in its judgment. The messages said:

• "U are a fucking bitch low. I don't care if u do tell Rachel [Mrs Edmonds] I'm not going to speak to u why should I anyway";
• "U are a fucking lying bitch just piss off why should I speak to u anyway"; and
• "U are a two faced f,,,ing lazy bitch no good 4 noone". 

Ms Edmonds and Mrs Goodyear, who were not at this stage aware of the text messages, resolved to keep an eye on the relationship between the two former friends. In the days that followed, they observed that Ms Mealing's attitude did not change. They invited her to a second meeting, which took place on 28 March, and reiterated to her that her behaviour had to change. By this stage, they did not consider that Mrs Morris was at fault and did not invite her to a second meeting. 

On 4 April 2011, Mrs Morris showed the text messages to Ms Edmonds, having delayed because she was not sure what to do about them. On 5 April, Mrs Edmonds called Ms Mealing into a short meeting and dismissed her. This decision was confirmed in writing, with her behaviour towards Mrs Morris given as the reason for dismissal. Ms Mealing claimed unfair dismissal. 

The employment tribunal found that Mrs Edmonds had a potentially fair reason related to conduct for dismissing Ms Mealing. She had failed to communicate with a colleague when required; when she did communicate, it was through offensive text messages; and she refused to modify her behaviour. The employer had a genuine belief that Ms Mealing had committed this misconduct, based on reasonable grounds. 

The tribunal rejected Ms Mealing's argument that she had been unfairly dismissed because Mrs Morris had been treated differently. The employees' circumstances diverged on 23 March 2011: Mrs Morris made efforts to resolve the situation, whereas Ms Mealing's responses in the meeting were ambivalent and her actions deteriorated further when she sent offensive texts to Mrs Morris. 

However, the tribunal held that, even making allowances for the size of the employer, there were flaws in the disciplinary procedure. The outcome of the two meetings with Ms Mealing should have been confirmed in writing, giving confirmation of how she was expected to improve. In addition, Ms Mealing had been "ambushed" on 5 April 2011 and should have been given time to prepare for the meeting that resulted in her dismissal. She was also not informed of her right to appeal. 

While there were flaws in the employer's disciplinary procedure, the tribunal reduced Ms Mealing's compensation to zero. She had been given the opportunity to improve, but had chosen not to and the tribunal did not feel that she would ever have been willing to modify her behaviour. 

Additional resources

• How to handle a situation where employees refuse to work with a colleague This "how to" article sets out how to handle a situation where employees refuse to work with a colleague. 
• Workplace conflict survey 2011: levels and causes In the XpertHR managing workplace conflict survey 2011, we examine the level and impact of individual workplace disputes experienced by employers, the reasons for disputes at work, and the underlying causes of conflict. 
• Mediation policy Use this model policy to give parties the opportunity to resolve workplace disputes through mediation. 

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Dismissal of Jehovah’s Witness who refused to work on Sundays was not religious discrimination

Patrick v IH Sterile Services Ltd ET/3300983/11

Date added: 8 December 2011

religion or belief discrimination | direct discrimination | indirect discrimination

In this case, the tribunal had to consider whether or not a Jehovah’s Witness was discriminated against on the ground of his religion when he was dismissed after refusing to work on Sundays. 

On 2 August 2010, Mr Patrick began employment with IH Sterile Services Ltd as a sterile technician. The company’s business is providing sterile laboratory services, and Mr Patrick worked at its Ruislip laboratory, where a shift system is used. Mr Patrick’s contract provided that he had “no fixed hours of work” and was expected to “work the hours necessary to carry out his duties”. The company knew that Mr Patrick is a practising Jehovah’s Witness and, at the start of his employment, the parties came to an arrangement that he would not be required to work Sunday shifts, due to him worshipping and performing other related activities on that day. This arrangement was possible because, prior to December 2010, the company used agency staff, which reduced the requirement for employees to work at weekends. He also attended religious meetings on Thursday evenings, and was allowed to leave early if he was rostered to work the evening shift on that day. 

Around December 2010, the company made a business decision to stop using agency staff, for quality and cost reasons. At this time, the company had the equivalent of nine-and-a-half employees on flexible working contracts, including Mr Patrick. It also had 11 employees who had transferred from the NHS on contracts providing for fixed hours and days of work, being Monday to Friday. As a result, the employees with flexible working contracts needed to cover the weekend shifts previously worked by the agency staff. The number of shifts meant that, of the equivalent of nine-and-a-half flexible employees, six would need to work every Sunday: Mr Patrick would have to work at least every other Sunday. The company was able to accommodate his request not to work on Thursdays. 

On 20 December 2010, Mr Patrick was given a letter informing him that, as part of the new arrangements, he would be expected to work according to a rota, and that his hours were subject to change. The same day, he was informed verbally by a new manager, Mrs Holding, that he would be expected to work at weekends in 2011. Mr Patrick protested that he is a Jehovah’s Witness and is required to attend his place of worship every Sunday. 

In early January 2011, Mrs Holding had a meeting of around three hours with Mr Patrick, during which he maintained that he was unable to work Sundays. The tribunal later found that Mrs Holding had tried to establish a flexible arrangement with Mr Patrick, but that he was “resolute in his position”. Mrs Holding did accommodate another request from an employee related to religious duties. The employee, Mr Dahman, told her that he attended meetings every Saturday, and so the two agreed that, if he was rostered to work on a Saturday, he could work the early shift so that he could attend the meetings later in the day. The company also set aside a storeroom to act as a prayer room for employees who wished to pray during the week. 

In January 2011 the new rotas were circulated. Mr Patrick was rostered to work on Sunday 9 January, in the morning, but took annual leave. 

On 11 January, Mr Patrick wanted to reiterate his position to Mrs Holding. The tribunal found that it was “an unfortunate day”. The tribunal found that Mr Patrick tried to give Mrs Holding pamphlets on what being a Jehovah’s Witness entails, but did so in “such a determined manner” that she had the impression that he had thrown something at her. Mrs Holding did not pick up the pamphlets, which had fallen to the floor, because she objected to the manner in which she had been approached. 

A few minutes after this incident, Mr Patrick sought out Mrs Holding in her office. He closed the door, sat on a chair and “positioned himself” in such a manner that Mrs Holding felt intimidated. The tribunal found that he complained, in a “very loud” voice, that the rotas were unfair. Mrs Holding invited Mr Patrick to leave and, when he rose, the chair on which he had been sitting was “cast to the floor”. Mrs Holding later gave evidence that he had thrown the chair across the floor. 

In light of the events of 11 January 2011, and her concerns about his pattern of lateness and absence record, Mrs Holding invited Mr Patrick to a meeting to “consider his future” with the company. At this meeting, she dismissed him for failing to complete his probation period, despite him technically not having a probation period. On the date of his termination, 24 January, Mr Patrick had less than one year’s service, and could not claim unfair dismissal. His appeal against dismissal was not successful, and he claimed direct and indirect religion or belief discrimination. 

The tribunal found that all staff on flexible contracts were going to be asked by the company to work on Sundays, and that Mr Patrick had been treated the same as everyone else. Although a special arrangement had been made for Mr Dahman, his situation was not analogous to that of Mr Patrick, who had not indicated that he was willing to work a particular shift on Sundays, including a night shift. If Mr Patrick had done so, the tribunal found, it was likely that the company would have made an arrangement with him – but he did not engage in any discussion that could have resulted in such an outcome. 

The tribunal found that the reason for Mr Patrick’s dismissal was, in part, his conduct on 11 January 2011, which Mrs Holding was entitled to view as “hostile and aggressive”. Further, his attendance record and lateness were also reasons for the dismissal, which was “untainted by religious discrimination”. In his brief time with the company, Mr Patrick had had 15 days of sickness absence, and 14 instances of lateness, some of which were “a matter of hours”. 

In relation to the indirect discrimination claim, the tribunal found that the provision, criterion or practice of requiring Mr Patrick to work on a Sunday did place him at a particular disadvantage when compared with non-religious people, in that it could prevent him from worshipping on that day. However, the tribunal found that the company could justify this requirement. The company’s contractual obligation to provide sterile laboratory services to its customers on Sundays was a legitimate aim, and sharing out the obligation to work on Sundays equally across the workforce was a proportionate means of achieving this aim. The tribunal did not think that it was appropriate to exempt an employee who wished to worship on Sundays from the obligation to work on that day, provided that it distributed the work equally. 

The tribunal dismissed Mr Patrick’s claims. It noted that, if he had offered to work the Sunday night shift, the company would not have been able to justify as readily the requirement for him to work Sunday day shifts. 

Additional resources

• Cherfi v G4S Security Services Ltd EAT/0379/10 In this case, the Employment Appeal Tribunal held that a refusal to allow a Muslim guard to attend a mosque during working hours, which would have jeopardised his employer’s commercial contract to provide security services, was not indirect religious discrimination. 
• Get more information on religion or belief discrimination in the XpertHR FAQs section:
  • What issues should employers take into account regarding the timing of a work-related social event such as a Christmas party?
  • Should employees who practise religions other than Christianity be given additional time off in lieu where a bank holiday is aligned to a Christian festival such as Easter?
  • What can employers do to support employees who are required to pray during working hours?

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Age discrimination: employer justifies differences in treatment under early-release scheme

Banks v Ministry of Defence ET/3304560/2009

Date added: 1 December 2011

age discrimination | early-release scheme | payment on termination

The employment tribunal in this case found that it was not age discrimination for the civil service to place limits on the amount that it would pay under a voluntary "early-release scheme" designed to encourage turnover in the workforce. 

Mr Banks was an area education officer for the Ministry of Defence, earning £67,000 per annum in his final year. He was born in 1948. In 2009, his employment was terminated under an "early-release scheme", which allows staff to leave employment early in return for a severance payment, if both the employer and employee agree. The operation of the scheme is entirely discretionary and early release is not on any set terms, varying for each employee depending on a number of factors. The employer's stated purpose for the scheme is broadly to "encourage turnover within the workforce in order to address a number of issues such as age profile, performance or reorganisations". The scheme is separate from the employer's retirement scheme. 

Payments under the early-release scheme are dependent on the age of the employee at the time of release. At the relevant time, the age bands were as follows:

• Employees aged under 50 were entitled to an enhanced severance payment based on two weeks' pay for each year's service after reaching the age of 18 and three weeks' pay for each year's service after reaching the age of 41, subject to a 66-week limit. 
• Employees aged 50 to 59 were entitled to the same enhanced severance payment with an actuarial reduction in their pension, but also had the option of taking early retirement instead, with additional contributions from the employer. 
• Employees aged 60 and over were entitled to a severance payment calculated in accordance with statutory redundancy pay, in addition to a full pension (without an actuarial reduction). 

There was a limit on payments under the early-release scheme, with the employer making payments over £30,000 only in "exceptional circumstances". Payments were made out of a pot and, for the relevant year, the pot was approximately £340,000 for lump-sum payments and £152,000 for pension payments. Mr Banks was given an early-release payment of £10,500 under the over-59s band (in addition to his full pension). Mr Banks claimed that he suffered age discrimination because, if he had been 59, he would have been entitled to £85,000. 

The employment tribunal accepted the employer's evidence that it does not normally grant an early-release payment exceeding £30,000. The employer did retain its discretion to do so in "exceptional circumstances", but these did not apply to Mr Banks. In any event, it had allocated a budget to discretionary early-release payments and could not exceed this. 

The employer was able to show the tribunal that it rarely gave early-release payments of over £30,000, giving examples of two senior members of staff who had received only £9,300 each. It had several other examples where requests for early release were turned down because the payments to the leavers would have been too costly. Mr Banks did have an example of one employee who had received almost £53,000, but this was "by some distance the highest severance payment" given by the employer under the scheme. This comparator's case was exceptional because she had been paid off at a time when she had been performing poorly and was likely to be made redundant anyway. 

The key for the tribunal in this case was that payments for early release are discretionary under a scheme that is allocated finite resources. Although Mr Banks argued that he was theoretically entitled to £85,000, the employer had lawfully exercised its discretion not to pay him this amount out of its limited budget. The imposition of a limit of £30,000 in most cases was therefore a proportionate means of achieving a legitimate aim. The legitimate aim was to maximise the number of successful applicants under the early-release scheme, which was justifiable as a means to "refresh the workforce" and facilitate reorganisations without resorting to redundancies. 

The tribunal accepted the employer's policy as a "cost plus" justification under Cross v British Airways [2005] IRLR 423 EAT. In that case, the Employment Appeal Tribunal (EAT) found that, while an employer cannot rely on cost alone to justify a discriminatory act, it can put cost into the balance together with other justifications. The tribunal also noted that the policy could be justified on cost alone anyway, as suggested by the EAT in Woodcock v Cumbria Primary Care Trust [2011] IRLR 119 EAT. 

The tribunal found that the difference in severance payments between employees aged 59 and 60 was justifiable because employees who are 60 are entitled to immediate access to their pension without an actuarial reduction. The incentive for under-60s is that they get access to their pension as though they are 60, albeit with an actuarial reduction. Those aged 60 and over justifiably do not get the enhanced severance payment because they have already had immediate access to their pension. Those aged 60 and over are not excluded from the scheme: they still get the equivalent of a statutory redundancy payment as well as immediate access to their unreduced pension. The employer is entitled to use the scheme to maximise the participation in the scheme of employees aged 60 and over. 

The tribunal therefore concluded that both Mr Banks' direct and indirect age discrimination claims failed, because the employer had established the defence of justification. 

Additional resources

• Walsh v Tewkesbury Borough Council ET/1404614/09 In this decision, the employment tribunal was critical of a local authority that failed to keep an employee at risk of redundancy in employment for six more months during a transitional period. The decision had been taken to avoid a pension payout and constituted direct age discrimination and unfair dismissal. 
• Mayor and Burgesses of the London Borough of Tower Hamlets v Wooster EAT/0441/08 In this case, the EAT held that an employer committed direct age discrimination against an employee when it made him redundant at the age of 49 in order to avoid paying an early retirement pension that he would be entitled to if he left employment when he was aged 50 or over. 

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Postal worker "stabbed by a syringe" unfairly dismissed for taking one day's "fraudulent" sick leave

Singh v Royal Mail Group Ltd ET/1400341/11

Date added: 1 December 2011

unfair dismissal | injury at work | fraudulent sick leave

The employer in this case took an extremely heavy-handed and, at times, frankly bizarre, approach to allegations that an employee "fraudulently" took one day's sick leave after he claimed that he had been stabbed in the finger by a syringe when sorting post. 

Mr Singh was a postal worker from November 2001 to December 2010. He worked shifts, including weekend work. During the relevant period in 2010, he was due to work shifts on Friday 13 August, Sunday 15 August and Monday 16 August. He had a clean disciplinary record. Part of his job involved scooping post by hand out of a container called a "mini york". 

On Friday 13 August, Mr Singh claimed that he was stabbed in the finger by a syringe from an item of post. He felt a prick to his finger (which is not unusual in this workplace because of loose staples) and lifted his hand out of the mini york. A colleague, Ms Archer, screamed when she saw that there was a syringe in the mini york. She gave the needle on an envelope to Mr Singh, who was in a state of shock. He left his work post without saying anything to Ms Archer or the other worker who witnessed the incident, Ms Quarry. Mr Singh walked to his acting manager, Mr Donovan, and was advised to go to hospital. Mr Singh showed the needle to several other members of staff before going to hospital. 

Mr Singh went straight to accident and emergency and the doctor who saw him confirmed that his right middle finger was "tender at the tip". He was given a tetanus injection and hepatitis B vaccination. A blood sample was taken for serology. Mr Singh went back to work that day to request to take the rest of his shift off. He telephoned work on Sunday 15 August saying that he would not be able to come in because of pain in his arm from the injections and the shock of the incident. However, he confirmed that he would be back at work on Monday 16 August. 

On Monday 16 August, before Mr Singh had had a chance to come to work, two managers (Mr Austin and Mr Mallick) visited Mr Singh at his home to investigate the incident. Mr Singh did come to work later in the day and Mr Afzal of the safety team completed an injury report form with him. 

Shortly after 16 August, Mr Singh suggested to the company that it check the CCTV footage of the incident. The company did not agree to this request and CCTV footage is deleted after 14 days. The company's witnesses later told the tribunal that CCTV footage could be used only to detect and prevent crime. 

There were no further investigations for six weeks (because one of the investigating managers was on annual leave), but Mr Afzal formed the opinion (for reasons that were unclear to the tribunal) that Mr Singh had faked his injury. Mr Singh maintained his story throughout that he had been pricked by a syringe, with his trade union representative arguing that, if Mr Singh was faking illness to abuse the system, this was "a bizarre way to go about it". The tribunal later noted that Mr Singh was "subject to questioning in numerous investigatory meetings". Although there were slight variations in his responses in terms of the words used, his accounts of what had happened generally remained consistent. 

During the investigation, Ms Archer's evidence was somewhat confused, with the initial suggestion being that Mr Singh did not put his hands into the mini york at any point. She later said that she did not see Mr Singh put his hands in the machine after the needle was discovered, but that he had been using the machine beforehand. Ms Quarry had not initially been interviewed because Mr Singh had, in the confusion, forgotten that she had been there. 

At a disciplinary hearing on 25 October, the decision was made to dismiss Mr Singh. Mr McMullen, who conducted the hearing, relied on what he viewed as inconsistencies between Mr Singh's accounts of events and the evidence given by other witnesses. In deciding to dismiss, Mr McMullen was particularly influenced by Mr Singh:

• not reacting verbally to being pricked by the needle, suggesting that he had fabricated the injury;
• saying that he had "found" the syringe, when Ms Archer had given evidence that she was the one who had seen it first. 

Mr McMullen concluded that Mr Singh had faked his injury and fraudulently taken one day's sick leave on Sunday 15 August. In an appeal heard on 13 January 2011, Mr Singh highlighted the delay in concluding the investigation stage. However, the appeal officer, Ms Rysdale, rejected the appeal mainly on the basis of inconsistencies in the parties' accounts of events. Mr Singh's dismissal for gross misconduct as of 2 December 2010 stood and he claimed unfair dismissal. 

The employment tribunal held that the dismissal was unfair. It found that faking an accident at work and subsequently falsely taking sick leave is a potentially fair reason for dismissal. However, the company did not have reasonable grounds for its belief that Mr Singh had committed the misconduct. Mr Singh and witnesses may have given slightly different versions of events, but there was no inconsistency about who had found the needle. The company's witnesses accepted that, even if Ms Archer was the first to see the needle, they did not see the exact moment in which Mr Singh claimed he was pricked. The company had also placed too much emphasis on how it thought Mr Singh "should" have reacted. It was unreasonable for it to use against him evidence that he did not stop to explain to Ms Archer and Ms Quarry that he had been injured. 

The tribunal highlighted the company's failure to give sufficient consideration to the implausibility of Mr Singh using this method to fake an injury. He would have had to have formulated the plan to use the discovery of the needle to fake an absence in the short time it took for him to walk to Mr Donovan's office, during which he showed the needle to several colleagues. There was no dispute that he had attended hospital and had several injections as part of his treatment. He had worked for the company for nine years and was well aware of how its absence system worked. If he had really wanted to take the day off, he could simply have phoned in sick saying he had a cold or the flu. There are easier ways to get a day off work. 

The tribunal also pointed out flaws in the disciplinary procedure, including:

• the delayed and "piecemeal" investigation, which allowed memories to dim and made the evidence needed harder to obtain;
• the unclear and, at times, over-the-top questioning on fine points of difference in the language used by Mr Singh and the witnesses; and
• the company ignoring Mr Singh's request for the CCTV footage to be checked. 

The dismissal was therefore unfair, with the tribunal noting the established principle that, the more serious the allegations against the employee, the more thorough the investigation should be. 

Additional resources

• Line manager briefing on conducting an investigation This line manager briefing examines how to conduct an investigation. 
• Procedure on conducting a disciplinary investigation Use this model policy to set out how the employer will carry out a disciplinary investigation.