Ahmed v Premier Foods Group Ltd ET/1309299/11
Date added: 17 January 2012
unfair dismissal | gross misconduct | violence at work | disciplinary evidence
In this case, an employee dismissed for gross misconduct was betrayed by his union representative at the appeal stage, something that none of the tribunal members had previously encountered.
Practical tips
When conducting an appeal process, employers must be wary of withholding any new evidence or information from the charged employee, preventing him or her from commenting on it.
If the appeal officer wishes to check a point of detail or clarify something about the preceding process that has caused him or her concern, and does so without raising any question that should in fairness be put to the charged employee, that will not normally render the dismissal unfair.
Where new evidence or information is something that the employee should in fairness be allowed to comment on, the appeal officer should allow him or her to do so. |
Mr Ahmed was employed by Premier Foods Group Ltd to work as a bakery operative and machine operator at the Hovis Bakery in Birmingham. On the night of 29 April 2011, he worked a night shift, during which he was involved in an incident with a colleague, Mr Wasim, who complained to the line managers that Mr Ahmed had hit him. The line managers took statements from both employees and other colleagues.
Mr Ahmed’s statement provided the following version of events. He had returned from a break when he noticed that the warning light on the production line’s metal detector was flashing, which meant that it needed testing. He went to test it, but Mr Wasim asked him to relieve him first from his duties, so that he could go on his break. Mr Ahmed told Mr Wasim that the light had been flashing for 10 minutes, and asked him why he had not done the test. Mr Wasim had replied “this is your bloody job”, and grabbed Mr Ahmed by the neck, scratching him. Mr Ahmed pushed him away and he walked off.
Mr Wasim’s account of the incident was different. Mr Ahmed had ignored his request to relieve him so that he could take his break, using the need to test the metal detector as an excuse. There was an argument about who should do the test. Mr Ahmed shouted “in his own language” and hit Mr Wasim three times in the face.
The statements of other colleagues said that they had been aware of shouting, but that they had not seen either man use force on the other. The tribunal later thought that some or all of these individuals must have witnessed much more than they admitted to, but wished to avoid being seen to take sides. One of the line managers provided a statement, which said that, when Mr Wasim came into the office, he had a red mark on the side of his face that was “clearly visible”.
Another manager carried out an investigation. During this, Mr Ahmed admitted that both he and Mr Wasim had used strong language, but said that the language used by Mr Wasim was more serious. He said that he pushed Mr Wasim away, but very gently, and denied hitting him. Mr Wasim told the investigating manager that Mr Ahmed had initiated the confrontation, and had sworn at and hit him. Mr Wasim denied swearing or using any force. The tribunal found that the investigation was thorough. The investigation report concluded that both men should face disciplinary proceedings.
On 19 May 2011, a disciplinary hearing for Mr Ahmed took place to address the charge of “unacceptable behaviour and conduct towards a work colleague”, which the company deemed to constitute gross misconduct. Mr Ahmed was accompanied by Mr Rashid, a shop steward. A disciplinary hearing for Mr Wasim took place the same day. After further investigation, the disciplinary officer resumed both hearings, and concluded that both employees were guilty of the same offence and should be summarily dismissed. He considered them equally blameworthy.
Both employees appealed against their dismissal. Mr Wasim’s appeal took place on 6 June 2011, and he was accompanied by a full-time trade union official. The appeal officer was the manufacturing manager, Mr Sarwar, who adjourned the hearing pending Mr Ahmed’s appeal.
There were difficulties securing the attendance at Mr Ahmed’s appeal of the full-time union official, and in the end the hearing took place on 26 July 2011 with him accompanied by Mr Rashid. Mr Sarwar conducted further enquiries after the hearing, re-interviewing all the witnesses, and his evidence was that nothing significant came of this. In particular, he said that nothing that amounted to new evidence emerged.
Mr Ahmed’s evidence at the tribunal hearing was that Mr Rashid visited him on the evening of 26 July. He claimed that Mr Rashid said that the union official who had represented Mr Wasim had decided that they could save the job of only one of the two men and that, because the union official was more senior than Mr Rashid in the union hierarchy, it had to be Mr Ahmed who lost his job. This evidence was not challenged at the tribunal hearing.
On 27 July 2011, Mr Rashid met Mr Sarwar and told him that he had new evidence. This evidence was that Mr Ahmed had admitted to Mr Rashid that he had struck Mr Wasim. Mr Sarwar asked Mr Rashid to confirm this in writing and he did so by a letter dated 27 July.
The letter stated that Mr Rashid had himself seen Mr Wasim shortly after the altercation, and that Mr Wasim was “shaking uncontrollably and had a red mark on his face”. On the night of the incident, unidentified individuals had told Mr Rashid that Mr Wasim had been assaulted by Mr Ahmed. After the two employees had been dismissed, Mr Rashid had carried out his own investigation. Mr Ahmed had admitted to Mr Rashid that he had assaulted Mr Wasim, but that he had expected “to say sorry afterwards and shake hands”. The letter was not shown to Mr Ahmed, and its contents were not communicated to him. In fact, Mr Ahmed did not know of the letter’s existence until his tribunal proceedings had begun.
Mr Sarwar wrote to Mr Ahmed dismissing his appeal, and referred to “new evidence submitted supporting the allegation”. He decided that Mr Wasim’s appeal should be allowed because he considered him less blameworthy than Mr Ahmed, and reinstated Mr Wasim with a final written warning.
Mr Ahmed claimed unfair dismissal. The tribunal found that the disciplinary officer had reached a decision that had been reasonably open to him on the evidence that was before him. The tribunal was “more hesitant” about whether or not Mr Sarwar’s belief in Mr Ahmed’s guilt was reasonable but, leaving aside the evidence from Mr Rashid, concluded that the evidence before him enabled him reasonably to differentiate between the two employees and conclude that there was a greater degree of fault on the part of Mr Ahmed than on that of Mr Wasim.
The tribunal found that, had it not been for the matter of Mr Rashid’s letter, it would have concluded that the disciplinary process was reasonable. Mr Sarwar told the tribunal that he had reached his decision about Mr Ahmed’s appeal before he had heard from Mr Rashid and that he had disregarded both Mr Rashid’s information and his letter. He said that the reference to “new evidence” in the appeal outcome letter was a mistake on the part of the HR person who had drafted the letters. The tribunal rejected Mr Sarwar’s evidence on this point as “wholly incredible”; there was, on Mr Sarwar’s own account of the matter, no new evidence apart from the letter from Mr Rashid.
Although not every piece of re-investigation or new information received at the appeal stage without notice to the employee will render a disciplinary process unfair, here Mr Sarwar had received a completely new piece of evidence from a “most extraordinary” source. None of the members of the tribunal had “ever encountered a case in which a person [had] been betrayed…by a letter written contrary to his interests by his trade union official”. The tribunal found that, had Mr Sarwar given Mr Ahmed the opportunity of commenting on the new evidence, Mr Ahmed would have told him that Mr Rashid had admitted that there was a union agreement to abandon him to attempt to save Mr Wasim’s employment. Mr Sarwar might or might not have accepted that information, but at least he would have been in possession of it. Instead, he had proceeded to reach his conclusion. The tribunal was satisfied that he had been “strongly influenced” by Mr Rashid’s letter, and that rendered the process “wholly and irredeemably unfair”.
The tribunal held that the dismissal was outside the range of reasonable responses, and unfair. Once Mr Sarwar had decided to make a distinction between the two employees, it was necessary that the distinction should be rationally justified. The tribunal was satisfied that “the major if not the sole reason” for the distinction was Mr Rashid’s evidence. That was not a basis on which a reasonable appeal officer could make such a distinction.
Additional resources
- How to handle appeals against disciplinary decisions While there is no statutory duty for employers to provide employees with the right of appeal against a disciplinary penalty, it is an important part of a fair disciplinary procedure. A failure to provide the right of appeal would amount to a breach of the Acas code and could result in a finding of unfair dismissal.
- Get more information on disciplinary appeals in the XpertHR FAQs section:
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