In the employment tribunals: June 2011

XpertHR provides summaries of recent employment tribunal rulings. 

Police force's disciplinary action against officer on maternity leave was sex discrimination
Indian telesales employee instructed to adopt anglicised alias at work
Mormon excommunicated after extramarital sex with church member was not forced to resign
Employer harassed and victimised employee after she underwent IVF treatment
Employee identified by handwriting experts as responsible for toilet graffiti was unfairly dismissed
Text message accidentally sent to employee led to her unfair dismissal
Company harassed diabetic employee by suggesting she inject insulin in toilet
Traffic warden fairly dismissed for staying inside during inclement weather
Manager's internal email accidentally sent to disabled job applicant constituted harassment
Law firm unfairly dismissed office manager who did not deny harassing colleague
Employee unfairly dismissed for frequent use of mobile phone at work
Employer deliberately falsified employee’s disciplinary record
Employee who did not return from India on time was fairly dismissed

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. 

Police force's disciplinary action against officer on maternity leave was sex discrimination

Haque v Chief Constable of Hampshire Constabulary ET/3104105/08 & ET/3101527/09

Date added: 30 June 2011

sex discrimination | maternity leave | disciplinary action

This case is an example of an employer that needed to deal with the extremely difficult issue of having a disciplinary matter pending against a member of staff on maternity leave. 

Practical tips

There is nothing that specifically prevents an employer from taking disciplinary action against an employee on maternity leave. 

However, the employer should give serious consideration to whether or not it might be possible to delay the proceedings until the employee returns. 

If the employer decides to go ahead with the proceedings, it should consider carrying out a risk assessment and ensure that the employee is offered the appropriate facilities. 

Mrs Haque was a police officer. She and her husband were the subject of criminal proceedings after they conducted an off-duty arrest in August 2006. They were acquitted in March 2008 after two lengthy court cases but, following the criminal proceedings, the Professional Standards Department decided to take internal disciplinary action against them. By the end of March 2008, Mrs Haque was on maternity leave. She was around eight months pregnant and her expected date of childbirth was 2 April 2008. Because she was combining her full 52-week maternity leave entitlement with a substantial amount of accrued annual leave, she was not due to return until 5 June 2009. 

The police force decided to go ahead with the disciplinary charges, notwithstanding that Mrs Haque was on maternity leave. She complained that she should not have been required to attend the proceedings, but she did in fact attend a preliminary hearing on 17 July 2008 after the police force rejected her argument that it was prejudicial for her to be disciplined while on maternity leave. Mrs Haque complained about the "woefully inadequate" facilities for new mothers at the location of the preliminary hearing, in particular the lack of breastfeeding facilities. She also argued unsuccessfully that it is impossible for a woman on maternity leave to concentrate sufficiently on the disciplinary proceedings, an argument that the police force's representative described as being "offensive in the extreme, absurd and a try on". 

The substantive disciplinary hearing was scheduled to take place from 6 January to 23 January 2009 in a hotel in Winchester. On 19 November 2008, Mrs Haque's representatives sent a "forceful" written objection to the misconduct hearing going ahead, citing the inadequate childcare facilities at and near the hotel and the distance that she would have to travel from her home. The police force rejected this complaint, and the substantive hearing took place as planned, with Mrs Haque in attendance. In the event, the disciplinary panel did not reach its decision to dismiss Mrs Haque until 11pm on 5 February 2009. Mrs Haque claimed, among other things, direct sex discrimination. 

The tribunal noted that the police force had confirmed, in July 2008, that it would treat any requirement for Mrs Haque to attend a disciplinary hearing in the same manner as if she were attending court during her maternity leave. The police force's policy on an officer attending court during maternity leave provides that she will be treated as being on duty, and that the force will conduct a risk assessment for her. 

The employment tribunal stressed that, although women who are pregnant or on maternity leave go through a "protected period" during which they are entitled to be treated in a different and more "privileged" way, there is nothing that specifically requires an employer to refrain from instituting disciplinary proceedings against an employee who is pregnant or on maternity leave. 

However, the tribunal held that, once a decision is made to take disciplinary proceedings against an employee who is pregnant or on maternity leave, the employer has a duty to:

  • do its best to preserve her rights during the process;
  • undertake a risk assessment; and
  • ensure that she has the proper facilities during the proceedings. 

The employment tribunal said that, because the police force should have anticipated that Mrs Haque was likely to attend the preliminary hearing, it should have carried out the appropriate risk assessment and ensured that adequate childcare facilities were available. The tribunal held that the failure to take these steps amounted to direct sex discrimination. 

The tribunal went on to say that, just because there is no specific prohibition on taking disciplinary action against a woman who is pregnant or on maternity leave, this does not mean that it was right for the police force to proceed in this case. On the one hand, there may be cases where an officer is anxious for the proceedings to commence and be concluded as swiftly as possible, even though she is on maternity leave. On the other hand, there may be circumstances in which it is appropriate to postpone the proceedings. 

The tribunal felt that, as the disciplinary hearing took place a very long time (more than two years) after the events at issue, a delay of a few more months would not have made any difference to the police force's ability to present its case against Mrs Haque or witnesses' ability to recall the events in question. The tribunal could see no overriding reason for the police force's insistence on going ahead with the disciplinary procedure and considered that Mrs Haque had put forward very good reasons for the disciplinary hearing to be postponed. The tribunal felt that the police force's actions constituted "an unnecessary interference" with Mrs Haque's rights while on maternity leave. 

View the full transcript of the case 


Additional resources

Indian telesales employee instructed to adopt anglicised alias at work

Jain v Teachers 2 Parents Ltd ET/1900007/11

Date added: 28 June 2011

race discrimination | direct discrimination | indirect discrimination

In this case, an Indian employee alleged that his employer had instructed him to adopt an anglicised alias at work. 

Practical tips

There are some jobs, such as those involving counter-terrorism or espionage, where it may be reasonable for the employer to ask an employee to use a false name or alias. A position in telesales for a software company is not one of these jobs. 

It is perfectly acceptable for employers to allow employees to use shortened versions of their birth names. As a matter of good practice, many employers ask new employees if they would like to be referred to by a name other than their birth name. 

It is also legitimate for an employer to try to reduce the chances of a third party misspelling an employee’s email address. One method is to use only first names in email addresses. The company in question took this step, but by asking employees to adopt anglicised aliases it was destined to lose any discrimination claim brought on the issue. 

Teachers 2 Parents Ltd is a technology business, supplying software products to schools. Mr Jain, who is of Indian ethnic origin, was employed by the company as a telesales operator on 3 September 2009. On his first day at work, he was inducted with around nine other new starters. Part of the inductees’ training was shadowing other members of staff. However, before they were allowed to do this, Mr Naik (one of the company’s directors) told them that some of their colleagues had adopted anglicised names. 

Mr Jain explained that he had operated successfully in sales using his own name, Rahul Jain, which was easily spelt. Mr Naik informed him and the other inductees that they needed to pick anglicised names before they could start work on the phones. Mr Jain was unhappy about having to change name, being proud of his birth name, but chose the alias “Rob”. He realised, soon after starting his telesales work under the alias “Rob”, that it would be very difficult to revert to his birth name, even if that was an option. Potential customers came to know him as Rob, and he would have lost credibility reverting to his real name. However, Mr Jain did not raise any formal objection until September 2010. 

Several new employees joined the company after Mr Jain:

  • Mr Alan Diprose, who is white, was employed as a field sales representative and was not asked to change his name. 
  • Miss Deepa Soni, a telesales employee, adopted “Dee” as her name, and was happy to do so, because this was a usual shortening of her name. 
  • Miss Alpa Parekh, another telesales employee, retained her first name, having explained that, because it was so easy to spell, she had not encountered any email spelling problems in the past. 
  • Miss Angali Bharakha, a telephone trainer, adopted the name Amy, having previously experienced problems with people misspelling her name. 
  • Miss Majinder Patel, who was employed in the same role as Mr Jain, was happy to use the name “Mandy”. 
  • Mr Alan Griggs, a field sales representative, kept his full name, despite being given the chance to change his name because there was already an employee named Alan. 
  • Mr Craig-West, who had a field role, was not asked to change his first name (which was not reported in the tribunal decision). 

All of these individuals gave tribunal evidence in support of the company except Mr Diprose and Mr Craig-West, who were witnesses for Mr Jain. 

Around January 2010, Mr Jain was asked by a potential customer for his surname. He was “taken aback” and faltered because he did not think that he could use his real surname, as it did not sound right. He decided to adopt the surname of “Matthews”. He told Miss Patel (“Mandy”) about the incident, and that she should adopt a false surname too. She did so, and her full alias became “Mandy Richardson”. 

In March 2010, Mr Piush Desai joined the company as operations manager, and adopted “Edward” as his alias. He gave evidence that he regarded it as a relief not to have to spell his name when on the telephone or giving out his email address. At a company social event in early 2010, Mr Jain and Mr Desai discussed the use of alias names and both laughed about the practice. Mr Jain mentioned the alias issue when objecting to a proposed pay cut in September 2010, but it was not taken further by either party. 

In November 2010, Mr Jain was informed that his position was at risk of redundancy. In a letter of 8 November in which he alleged that the redundancy was a sham, Mr Jain said he was sure that “a company policy forcing staff of Indian race to change their names to English names may be seen as racial discrimination in court”. The company held a meeting with Mr Jain to address the redundancy grievance, but the alias issue was not addressed. 

Mr Jain was dismissed for redundancy on 10 November 2010, and claimed race discrimination (both direct and indirect) and unfair dismissal. 

At the hearing, the company’s explanation for the use of aliases was that, in the company’s early days, emails from customers had gone missing, and on investigation it was discovered that customers had misspelt employees’ email addresses. Because of this, the company alleged, it permitted staff to use alias names instead of their birth names. Examples included Mehul (Max), Faizal (Fred), Sarbjit (Sally) and Prakhash (Terry).  The aliases were used not only as email addresses, but also by staff in making calls and around the office when speaking to each other. Ninety percent of Indian or Asian ethnic origin staff in training and telesales positions at the company used anglicised names. In contrast, all programming and developing staff of Indian or Asian ethnic origin used their birth names. 

However, the tribunal accepted Mr Jain’s account of his first working day, and that he was required to adopt an anglicised name. The tribunal did not find the number and proportion of Indian-origin staff that adopted alias names consistent with the company’s explanation that it was simply a matter of choice for them. It also noted that not all of the company’s current employee witnesses were comfortable when giving evidence on the matter. 

With regard to the direct discrimination claim, the tribunal found that the instruction to pick an anglicised name, before commencing telephone work, amounted to a continuing act until that instruction was withdrawn by notice to each individual to whom it was given. Although this was not a case involving a contractual term that continued throughout the life of Mr Jain’s employment contract, the reality was that he had to “live” with his alias name every day at work. If he did not, his conversations with potential customers would come unstuck. 

The tribunal found that, if the company considered that all of its staff could use their birth names if they wished, it was incumbent on it to communicate that fact, as well as the measures in place to deal with the issue of loss of credibility with customers and contacts.  The company did neither of those things. 

The tribunal held that the correct comparator for the direct discrimination claim was a white, British-origin telesales employee. It found that the company would not have required such a person to adopt a name other than his or her birth name, and that the instruction that Mr Jain do so was made because of his ethnic origin. The tribunal stated that the correct use of an employee’s given or birth name is, very often, a fundamental step in building respect within working relationships. The use of a nickname or other shortening is “usually only tolerable when invited”. Mr Jain was unhappy about the matter at the start of the arrangement, but felt that he had no choice. The tribunal upheld the direct discrimination claim. 

The tribunal also upheld Mr Jain’s indirect discrimination claim, stating that requiring staff to adopt an anglicised alias is not a proportionate means of achieving the aim of reducing the risk of emails going astray due to misspelling of names. Finally, the tribunal held that Mr Jain’s dismissal was unfair, on the basis that there was a lack of any real consultation regarding his redundancy. 

View the full transcript of the case 


Additional resources

Mormon excommunicated after extramarital sex with church member was not forced to resign

Smith v Church of Jesus Christ of Latter-Day Saints (Great Britain) ET/2407936/10

Date added: 27 June 2011

resignation or dismissal | religion

In this unusual case, a Mormon claimed that he was forced to resign from his Mormon Church-related position after he was excommunicated for engaging in extramarital sex with a member of the church. 

Practical tips

An employer wishing to offer an employee the option of resigning rather than facing disciplinary proceedings must be careful. The company in this case handled the matter perfectly, putting no pressure on the employee to resign, and taking care not to prejudge the outcome of the disciplinary procedures. 

Where an employee attempts to retract his or her resignation, there is no obligation on the employer to accept it. However, if the resignation was made in the heat of the moment, or if the employer put pressure on the employee to resign, a tribunal may find that the real reason for dismissal was termination. 

Mr Smith was employed by the Church of Jesus Christ of Latter-Day Saints (Great Britain), which is a company incorporated for the purpose of furthering the objectives of the Mormon Church. All of the company’s employees are members of the Mormon Church, and Mr Smith’s contract provided that he had to be worthy of a “temple recommend” to remain in employment. 

The church’s policies and procedures provide that any employee who is excommunicated from the church will be “terminated from Church employment”, and the company’s disciplinary procedure states that a failure to comply with “Church worthiness standards” constitutes gross misconduct. Sexual activity outside marriage is well known by members of the church to be unworthy conduct. As a former Bishop of the church, Mr Smith was aware of the disciplinary procedures and the possible consequences of a failure to maintain the standards required of church employees. He knew that extra-marital sex was likely to result in dismissal. 

Around March 2010, Mr Smith, after separating from his wife, engaged in sexual intercourse with a female member of the church, outside marriage. Through unspecified means, the church became aware of this and excommunicated Mr Smith on 1 July 2010. 

Mr Smith had considered resigning before the meeting of 1 July and, on 2 July, telephoned Mr Lucas (HR officer) to ask what his excommunication would mean for his employment, and what his options were. Mr Lucas informed him that the company would need to follow its disciplinary procedure, but agreed to explore possible alternatives. Mr Lucas agreed with Mr Smith’s line manager, Mr Whitehead, that they would offer him the opportunity to resign and receive three months’ pay in lieu of notice. 

Later on 2 July, Mr Lucas telephoned Mr Smith to inform him of the option of resigning and receiving pay in lieu of notice. He did not say that Mr Smith’s dismissal was a certain outcome, but explained that any dismissal would likely be without notice. The conversation was amicable. 

That morning, Mr Smith also spoke with Mr Whitehead on the phone. Mr Whitehead gave evidence in the tribunal hearing that, at that time, he felt that he would need to suspend Mr Smith and begin disciplinary proceedings, but did not discuss this with him. Mr Whitehead confirmed to Mr Smith the option to resign, and confirmed that he and Mr Lucas would visit late that afternoon. During this conversation, a colleague of Mr Smith, Mr Teal, who had come over to support him, gave him a piece of paper with the words “take the money” written on it. He was not acting on the company’s instructions, and believed that the offer presented to Mr Smith was a good one. 

During their conversations with Mr Smith, neither Mr Lucas nor Mr Whitehead used the explicit words “resign or be dismissed”. Late in the morning on 2 July, Mr Smith decided to resign, and tendered his resignation by email at 11.23am, which Mr Whitehead accepted. Later that day, there was an amicable meeting between Mr Smith, Mr Lucas and Mr Whitehead, where Mr Smith handed back company property and signed a company letter accepting his resignation. 

On the following working day, Monday 5 July 2010, Mr Smith sought to retract his resignation. The company refused to accept the retraction, and he claimed unfair dismissal and religion or belief discrimination. 

The tribunal had to decide whether it was more likely than not that Mr Smith’s contract of employment was terminated by dismissal rather than resignation. It found that Mr Smith was not forced to resign, and that he was not dismissed. He had considered the possibility of resignation before 2 July 2010, and chose to resign rather than face disciplinary action. The choice of resigning or facing disciplinary action was a stark one, but it was freely open to him. No pressure was put on him to resign. 

The tribunal also found that it was reasonable of the company to refuse to accept Mr Smith’s retraction of his resignation. The resignation was not made in the heat of the moment, and although Mr Smith was extremely upset about his excommunication, there was no satisfactory evidence that he was incapable of making a rational decision that day. He had the opportunity to reconsider and retract his resignation at the meeting on the afternoon of 2 July, and there was no suggestion that Mr Lucas or Mr Whitehead put pressure on him to sign the letter that confirmed his resignation. 

Regarding the discrimination claim, the tribunal found that the appropriate comparator was a non-Mormon employee who engaged in consensual extramarital sex. It found that such a comparator would have been treated in the same manner as Mr Smith: he or she would have committed an act of gross misconduct and would face disciplinary proceedings with dismissal as the likely outcome. The tribunal also found that the discrimination claim was not well founded. The issue was one of conduct - that Mr Smith had engaged in consensual extramarital sex - not belief. 

View the full transcript of the case 


Additional resources

Employer harassed and victimised employee after she underwent IVF treatment

Benton v Care Needs Ltd ET/2406088/2010

Date added: 23 June 2011

IVF treatment | sex discrimination | pregnancy discrimination

This case is a prime example of the problems that can occur in a workplace when a member of staff is undergoing IVF treatment in a bid to get pregnant. 

Mrs Benton began work as an office assistant in one of Care Needs Ltd's two offices in July 2009. Her duties expanded to cover important tasks such as organising staff rotas, but a second office assistant was recruited to work in the company's second office a month after Mrs Benton started. 

Practical tips

While there are technical differences in the claims that an employee can bring at the different stages of IVF treatment, managers should always treat the issue sensitively, for example keeping the treatment confidential and not making comments based on assumptions about the employee's future attendance record. 

Employers are entitled to require employees to take time off for IVF treatment (and elective surgery) out of their normal holiday entitlement. Larger employers might have a policy that allows employees a number of extra days' leave (typically, two to five days) for elective treatment. 

In November 2009, Mrs Benton and her husband were accepted for fertility treatment. Initially, she did not tell anyone at work, fearing a negative reaction. In December 2009, Mrs Benton told the assistant manager, Ms Burgess, that she would need four days off work for IVF treatment. It was agreed that she would take these days as annual leave. Although Ms Burgess had agreed that this was a confidential matter, one of the company directors approached Mrs Benton a few days later and asked her if this was her first attempt at IVF treatment. 

Mrs Benton suffered a miscarriage in January 2010, in the early hours of the morning. She could not get hold of Ms Burgess by telephone that morning so went to the office and explained to another member of staff, Ms Ralphs, what had happened and that she had to return to the hospital that day for further tests. Ms Ralphs appears to have told others about the miscarriage, including the business owner, Mrs Westwell, who was alleged (although it was never proven) to have said "Oh well, she's got to pull herself together and get on with it". 

The following week, Ms Burgess told Mrs Benton that, if she wished to take any more time off for IVF treatment, she would have to take the days as holiday. Mrs Benton also noticed that her wages were less than usual that week and, after querying the matter on several occasions, she was told that she had taken more days off than her holiday entitlement allowed. After an exchange of emails and, according to the tribunal, "a great deal of confusion", Mrs Benton dropped the matter, despite not receiving an explanation with which she was satisfied. 

Mrs Benton made numerous complaints about the way in which she was treated from that point until the end of her employment in June 2010. These included allegations that:

  • soon after her miscarriage, Mrs Westwell called her "upstairs" and began to berate her about numerous issues with her work;
  • Mrs Westwell told her that she looked ill and awful, with bags under her eyes;
  • she was told "that must hurt", when discussing Ms Burgess's subsequent pregnancy;
  • there were suggestions that the company was being "kind" in allowing her to take time off for IVF treatment, even though she had taken the days as holiday;
  • she was told that she was not interacting enough with colleagues, even though her explanation was that she was very busy;
  • Mrs Westwell queried what would happen if Mrs Benton became pregnant again and said that there was "a business to think about"; and
  • she overheard Mrs Westwell calling her a "dippy twat" when she made a mistake. 

By the middle of May 2010, Mrs Benton had been told that she was at risk of redundancy because her office was closing and the remaining staff were moving to the company's second office. Mrs Benton was made redundant in June 2010, although no process was followed and she was simply told by the general manager, Ms Frisby, that she was entitled to two weeks' pay in lieu of notice, but not an explanation of the reasons for her redundancy because she had less than one year's service. 

Shortly after her dismissal, Mrs Benton went to the Citizens' Advice Bureau and formed the opinion that she had been made redundant because of her first pregnancy and her decision to continue with the IVF treatment after she had miscarried. Around the same time, Mrs Benton asked Ms Frisby for a spreadsheet of all her earnings, because she had not received her last payslip. Ms Frisby told her that she should have received her last payslip and, after taking legal advice, that she could not have the spreadsheet information. Mrs Benton brought employment tribunal proceedings. 

The employment tribunal more or less accepted the account of events given by Mrs Benton, who had kept notes of what had happened. The tribunal considered whether or not, in relation to her redundancy dismissal, Mrs Benton should be afforded the special protection afforded to women who are pregnant. The European Court of Justice in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] IRLR 387 ECJ and the Employment Appeal Tribunal in Sahota v Home Office and Pipkin EAT/0342/09 held that a woman who is undergoing IVF does not benefit from the special protection afforded to pregnant women until the fertilised ova are transferred to her uterus. The employment tribunal concluded that, as Mrs Benton was due to have her eggs removed a few days after she was dismissed, she could not claim pregnancy discrimination. Her discrimination claim had to be limited to a sex discrimination claim in which she would have to compare herself with a hypothetical male. 

The tribunal first had to decide whether or not the fact that Mrs Benton was having fertility treatment and might get pregnant in the future was the actual reason for her dismissal. Although the tribunal found that the comments from members of staff about her attempts to get pregnant and the disputes about her absences for IVF treatment raised a prima facie case that this was the reason for her redundancy, it balanced this against the credible evidence that, with one of the company's offices closing, there was a genuine redundancy situation. The tribunal concluded that Mrs Benton was genuinely redundant. The tribunal also found that the reduction in Mrs Benton's pay after she took time off for IVF treatment was a result of confusion as to her holiday entitlement, and that her absences to have IVF treatment were irrelevant to the calculation. The tribunal pointed out that Mrs Benton had not pursued the matter at the time. 

However, the tribunal did conclude that Mrs Benton had been harassed and victimised. It found that most of the comments made about her were not because of her IVF treatment, but related to her perceived poor performance (for example, that she was a "dippy twat"). It also found that the business owner, Mrs Westwell, had a forceful personality and could be brusque. However, it held that Mrs Westwell's initial berating of Mrs Benton when she was called upstairs soon after her miscarriage constituted harassment. 

The tribunal went on to find that the company's failure to provide Mrs Benton with the pay information that she requested was victimisation. The tribunal believed that this was a direct result of her tribunal claim and it was unconvinced by Ms Frisby's explanation that the information was not provided after she had taken legal advice. Ms Frisby had "stonewalled" Mrs Benton's simple request for her payslip. 

View the full transcript of the case 


Additional resources

Employee identified by handwriting experts as responsible for toilet graffiti was unfairly dismissed

Whitehouse v Komfort Workspace plc ET/3100408/10

Date added: 23 June 2011

unfair dismissal | gross misconduct | graffiti | expert evidence

This case involves an employer’s use of handwriting experts to ascertain which employee was responsible for graffiti in its factory toilets. 

Mr Whitehouse was employed by Komfort Workspace plc as a technician, working at its factory in Birmingham. Until the events that resulted in his dismissal, he had an unblemished disciplinary record. In December 2008, he was involved in a road traffic accident. His solicitors wrote to the company regarding a personal injury claim, asking for the dates on which he had been absent from work as a result of the accident. In fact, Mr Whitehouse had not taken any time off work in connection with the accident. This letter subsequently became a key factor in the company’s decision to dismiss him. 

In August 2010, an altercation took place at the factory between two employees, Mr Rockcliffe and Mr Hooper. During the company’s investigation of the incident, Mr Hooper stated that there had been racist graffiti in the men’s toilet, and produced some photographs of it that he had taken on his mobile phone. The company investigated and found that some graffiti was still there. It interviewed all permanent shopfloor employees about the graffiti, but all - including Mr Whitehouse - denied having written it. 

Practical tips

An employer that chooses to obtain expert evidence as part of a disciplinary investigation must not accord it undue weight. Evidence that is specialist in nature is not automatically more important than employee evidence, particularly that of the employee accused of misconduct. 

An employer should also not place undue emphasis on minor inconsistencies in an employee’s evidence, particularly where he or she is not particularly articulate. An employee subject to disciplinary proceedings is likely to be stressed and worried, and unlikely to present his or her defence in the most eloquent or clear manner possible. 

The company instructed a certified document examiner to help in the investigation, and asked all employees to consent to providing a sample of handwriting for analysis. All gave their consent and provided samples, which were examined by the specialist, who compared them with the (mostly blurry and indistinct) photographs of the graffiti. 

The 53 employees who had submitted handwriting samples were anonymised for the purposes of the report. The expert’s report concluded that there was “strong support” that the majority of the graffiti was authored by employee K11 (a Mr Deeming), and that part of it (including part of the phrase “Hooper going 2 get it [sic]”) was written by employee K47 (Mr Whitehouse). The report also noted many similarities between the writing of employees K11 and K47. 

The company suspended both Mr Whitehouse and Mr Deeming. On 14 December 2010, it held a disciplinary hearing with Mr Whitehouse to address the charge of “why [he] denied [his] involvement in graffitist comments deemed as wholly unacceptable and racist”. Mr Whitehouse “vigorously denied” any involvement in writing the graffiti. Despite this, the disciplinary officer said that the expert report was “clear” and (erroneously) that it stated that “most” of the graffiti was written by Mr Whitehouse (although the dismissal letter used the word “some”). The officer decided to dismiss Mr Whitehouse for gross misconduct, and in doing so took into account his opinion that the 2008 letter, regarding the personal injury claim, cast doubt on Mr Whitehouse’s integrity. The employer did not raise this point with Mr Whitehouse during the investigation or disciplinary hearing. Mr Deeming was also dismissed on the same day for gross misconduct. 

Mr Whitehouse appealed, and in light of the strength of the views expressed in his letter, the company instructed a second expert - a forensic handwriting examiner - to investigate. His report of 15 January 2011 did not agree with all the conclusions in the first report. The report concluded that there was “moderate evidence” to support the view that Mr Whitehouse was responsible for some of the words in the graffiti (including the phrase “Hooper going 2 get it [sic]”). The report confirmed that “moderate evidence” satisfied the civil burden of proof, which is the balance of probabilities. 

Following an appeal hearing on 24 January 2011, the appeal officer upheld the decision to dismiss Mr Whitehouse. In doing so, the appeal officer took into account his belief that the letter of 2008 reflected adversely on Mr Whitehouse’s integrity, as well as an alleged inconsistency in Mr Whitehouse’s evidence as to when he became aware of the graffiti (recently or nine months earlier). The appeal outcome letter described Mr Whitehouse’s offence as being “an act of racial graffiti”. It said that the second expert report had “confirmed the original findings”. 

Mr Whitehouse claimed unfair dismissal. The tribunal found that the disciplinary and appeal officers were honest witnesses, and genuinely believed that Mr Whitehouse was guilty of misconduct. However, it found that the dismissal was unfair for a number of reasons. 

The core of the charge against Mr Whitehouse was that he wrote “racist” graffiti. However, none of the graffiti attributed to him by the second expert’s report used language with any racial connotation. Although there may have been some racial element to the dispute between Mr Rockcliffe and Mr Hooper, there was “simply no evidence at all” of any link between that and the alleged graffiti writing by Mr Whitehouse. It may be true that the phrase alleged to have been written by Mr Whitehouse was threatening and contrary to the company’s dignity at work policy, but that was not the basis on which he was disciplined. 

The tribunal also found that the disciplinary and appeal officers were wrong to take the 2008 letter into account. It was a “quite extraordinary leap” to draw, from the letter and the fact that Mr Whitehouse had not taken any time off in respect of the accident, an inference that he was dishonest on that particular occasion, let alone that he had a general propensity to be dishonest. The most likely explanation for the letter was that it was a standard lawyer’s letter that had not been tailored to fit the particular circumstances. 

The tribunal found that Mr Whitehouse had not been inconsistent in his evidence as to when he became aware of the graffiti. Although the two accounts that he gave during the investigation and disciplinary process were not identical, he is “not an especially articulate man, or one much given to making fine linguistic distinctions”. 

The company had also erred in assuming that, because the expert reports used scientific language, the evidence was in some way different from, and superior to, other evidence, including that of Mr Whitehouse. Such evidence is in fact “evidence of opinion”, and its value depends in part on the experience and skill of the expert, and the quality of the material on which it is based. The photographs on which the reports were based were of poor quality. The tribunal held that a reasonable employer would have considered that the evidence, taken as a whole, did not establish on the balance of probabilities that Mr Whitehouse had written the graffiti. 

As a result of these problems with the company's approach, the tribunal found that it lacked reasonable grounds to sustain its belief in Mr Whitehouse’s guilt. The tribunal went on to find that, even if it was wrong on that point, the company’s investigation was not reasonable. A reasonable employer would have taken into account his long service and previously unblemished disciplinary record. It stated that “writing rude words on a lavatory wall is both juvenile and reprehensible”, but would not alone be considered a ground for dismissal by a reasonable employer. 

View the full transcript of the case 


Additional resources

Text message accidentally sent to employee led to her unfair dismissal

Pawlicka v The Pier Trading Company Ltd ET/3100408/10

Date added: 21 June 2011

unfair dismissal | communication of dismissal | text message

In this case, the tribunal did not believe the employer’s “innocent” explanation for the text message that it had sent the employee by accident, which referred to the timescale for her departure from the company. 

Practical tips

It is easy, when using virtually instant communication methods such as text messages or email, for a message to be sent to the wrong person - often to an individual who is the subject of the communication. 

Managers should take as much time and care when sending a confidential email or text as they would if they were writing a letter, to reduce the chances of a mistake. 

In June 2008, Miss Pawlicka started work for The Pier Trading Company Ltd, which operates a number of cafes in Brighton. In January 2009, she was promoted to manager of the company’s Kensington Garden Cafe. In June that year, she was informed that the cafe’s owner, Mr Whelan, was planning on selling it to his friend, Miss Parker. 

In July 2009, Miss Parker started working at the cafe as an employee, and became Miss Pawlicka’s line manager. As far as Miss Pawlicka was concerned, Miss Parker had the authority to “hire and fire”. 

On Thursday 29 October 2009, Miss Pawlicka received a text message from Miss Parker that was intended for Mr Whelan. The text confirmed that Miss Parker was interviewing a potential new employee that morning, and asked “What do you think the timescale is for [Miss Pawlicka] going?” Shortly after, Miss Pawlicka received a second text message from Miss Parker, in which she apologised for her first text, but said that she and Mr Whelan had been discussing Miss Pawlicka’s position. 

Miss Pawlicka was confused by the messages and decided to talk to Miss Parker when she next attended work on the Saturday. However, Miss Pawlicka received a voicemail from Miss Parker that said that she could have the weekend off, and that “it would be better for the business and all of us if we had a chat on Monday about the situation”. Miss Pawlicka decided not to wait until Monday, and went to see Miss Parker on Friday 30 October. 

The meeting lasted only 10 minutes, although there was a conflict of evidence over what took place. Miss Pawlicka alleged that Miss Parker told her that:

  • the two of them could not work together, and the situation was “awkward”;
  • she had talked to Mr Whelan and thought that it would be better to “settle” Miss Pawlicka’s contract; and
  • Miss Pawlicka should speak to Mr Whelan or Mr Webb (the company secretary) about the details. 

Miss Pawlicka concluded that she had been dismissed at the meeting. Miss Parker alleged that there was no dismissal and that her first text message was “perfectly innocent”. She claimed that she used the meeting to address unspecified “issues” that arose because she and Miss Pawlicka did not have a good working relationship. 

Mr Webb gave evidence that, after the meeting, he called Mr Whelan and said that he wanted to meet Miss Pawlicka and try to get her to “go back in”, having been led to believe by Miss Parker that she intended to leave. He gave evidence that his gut feeling was that the outcome of the meeting of 30 October “was not good”. 

On 2 November, Miss Pawlicka met with Mr Webb. Her evidence was that the purpose of this meeting was to “settle” her contract. She alleged that Mr Webb gave her wages for October to her and offered her the option of finishing her contract at one of the company’s other two cafes, although he could not guarantee any minimum number of hours. He then discussed a settlement payment for her. 

Miss Pawlicka claimed unfair dismissal. The tribunal found that she came across as “honest, straightforward and sensible” and was a credible witness. In contrast, it found that the company’s evidence undermined its overall credibility. 

The tribunal did not believe the company’s “innocent” explanation for Miss Parker’s accidental text message to Miss Pawlicka, noting in particular that it conflicted with the instruction for her to take the weekend off. Looking at the situation preceding the meeting and what followed it, the tribunal found that it preferred Miss Pawlicka’s interpretation of the accidental text message and evidence of what took place at the meeting on 30 October. It found that any reasonable employee in the same circumstances would have reached the conclusion that he or she had been dismissed. 

With regard to the meeting on 2 November, the tribunal could not understand why, if Miss Pawlicka had not been dismissed at the meeting on 30 October, Mr Webb had given her wages to her. It preferred Miss Pawlicka’s account of the meeting, and found that settlement was indeed discussed. 

The tribunal found that the company had not established the reason for dismissal, and held that Miss Pawlicka had been unfairly dismissed. It awarded her just under £11,000. 

View the full transcript of the case 


Additional resources

Company harassed diabetic employee by suggesting she inject insulin in toilet

Clark v Newsquest Media (Southern) Ltd ET/3100102/10

Date added: 15 June 2011

disability discrimination | reasonable adjustments | harassment

In this case, the employer’s unjustified assumptions about a diabetic employee led to a £25,555 compensation award to her for disability discrimination. 

Miss Clark is diabetic, and must monitor her blood sugar levels and inject herself with insulin regularly throughout the day. She administers her insulin using a device that looks like a bulky fountain pen with a very small needle on the end. On an average day, she might have to inject herself four times during working hours. She does so in the stomach area, and the procedure takes a matter of seconds. Miss Clark’s testing and injecting cannot be precisely scheduled, and she carries out the process wherever she happens to be, including in public. 

On 2 September 2009, Miss Clark was offered, and accepted, a job with Newsquest Media (Southern) Ltd as a senior new business executive. She began a training course with the company on 6 October 2009. At this point, her diabetes had not been mentioned to the company, save on a driver information form that her immediate managers did not see. 

Practical tips

This case is a clear example of how an employer should not make any assumptions about how a disabled employee’s condition may affect him or her or other employees. 

An employer should obtain medical information and discuss this with the employee before taking any decisions as to how to help him or her manage the condition in the workplace. 

On 7 October 2009, Miss Clark was part of a group being trained in a room by Miss Duckworth. At one point in the training, Miss Duckworth saw Miss Clark “doing something turned or half-turned away from her”. She asked Miss Clark if she was going to join in with the group. Miss Clark told her that she was testing her blood because she is diabetic. Miss Duckworth later gave evidence that the incident was “very embarrassing” for her, and that she did not consider it appropriate for Miss Clark to carry out a blood test or inject herself in the training room with others present. However, Miss Duckworth did not say this to Miss Clark, but reported the matter to Miss Gorham, another manager. 

On 8 October, Miss Gorham attended the training course. She saw Miss Clark return from a coffee break, lift up her top and inject herself. After the session, Mr Gorham told Miss Clark that she did not think that it was appropriate to inject herself in front of everyone in the room. She suggested that Miss Clark go somewhere more private, such as the toilet. Miss Clark was upset by the incident, as all of her previous employers had been sympathetic to her condition. 

On 9 October, Miss Clark left a training session early because she needed to eat. She was joined in the canteen by Miss Gorham, who reiterated her concerns about where she injected insulin. Miss Gorham agreed that a toilet cubicle would be inappropriate, and said that she had meant the sink area. Miss Clark was again upset during the exchange. 

On 10 October, Miss Clark wrote to Miss Gorham asking for advice regarding where she could self-inject, as the toilet was not a practical solution and she was feeling “very awkward and uneasy” at work. Miss Gorham told Miss Clark that she could self-test and inject at her desk “as long as everyone else was OK about it”. Miss Gorham apologised for having suggested the toilet. 

The company treated Miss Clark’s letter as a formal grievance, but did not uphold it, and dismissed her appeal. The tribunal found that the grievance and appeal outcome letters conveyed an “unequivocal message” to Miss Clark that she had to perform her injections in private according to an agreed system, except in “extreme situations”. 

On 1 December, Miss Clark, who had been signed off sick with stress since 14 October, resigned. She claimed disability discrimination, arguing that the company had:

  • failed to make reasonable adjustments for her;
  • harassed her; and
  • directly discriminated against her. 

The tribunal found that the company had proceeded on a number of “quite unjustified” assumptions. It believed that Miss Clark might be embarrassed or inhibited about self-testing and injecting in front of others, when in fact this was not the case. It also appeared to believe that other employees might be embarrassed or offended, or even caused harm, if any of them suffered from needle phobia or if Miss Clark carelessly discarded a needle. The tribunal found that there was no basis for these fears: no other employee had expressed concern, and there was no risk to other employees from needles. Further, the company had not ascertained, from either Miss Clark or through obtaining medical evidence, exactly what her regime involved, or the extent to which it was practicable or safe to prescribe or agree a system for it. 

The tribunal upheld the reasonable adjustments claim. The relevant provision, criterion or practice (PCP) was that Miss Clark had to agree to a regime for self-testing and injecting that was to be carried out in private except in extreme circumstances. The tribunal found that the PCP put Miss Clark at a disadvantage, and that it was humiliating for her and disruptive to her work. The tribunal held that it would have been reasonable not to apply the PCP. 

The tribunal accepted that the company’s duty to its other employees might, in some circumstances, have required suggesting or imposing restrictions on Miss Clark’s regime. It gave the examples of an employee with a genuine needle phobia, or with a “Victorian horror of the sight of the small area of skin exposed to allow the injection”. However, these examples were entirely hypothetical in this case, and there was no basis for the blanket restrictions that the company sought to impose. 

The tribunal also upheld Miss Clark’s harassment claim in respect of the exchanges on 8 and 9 October and the grievance and appeal outcome letters. The tribunal accepted that the managers concerned were “well-intentioned”, but nevertheless sought to impose on Miss Clark an unjustified series of restrictions that “interfered with a core aspect of her life as a disabled person”. The tribunal found that the suggestion that Miss Clark inject in the toilet was particularly inappropriate and offensive. It also stated that the records of the grievance process made for “uncomfortable reading”, reading in some places as though “it were a disciplinary hearing”. 

The tribunal stated that Miss Clark had felt that she had no choice other than to resign. It said that, if necessary, it would also have upheld the direct discrimination claim. However, because Miss Clark’s constructive dismissal was an unlawful act of discrimination by reason of the company’s failure to make reasonable adjustments, the claim added nothing to the successful reasonable adjustments claim. 

The tribunal awarded Miss Clark a total of £25,555 in compensation, which included £8,000 for injury to feelings. 

View the full transcript of the case 


Additional resources

Traffic warden fairly dismissed for staying inside during inclement weather

Price v NSL Ltd NIIT/01827/10

Date added: 15 June 2011

unfair dismissal | misconduct | falsifying work records

The employer in this case did not have absolute proof that the employee had committed misconduct, but carried out a thorough investigation that showed that it was highly likely that he had. 

Practical tips

Modern technology makes it relatively easy for employers that have staff who work "out and about", or drive as part of their job, to track their movements and gather evidence if they are suspected of not working when or where they should be. 

The employer in this case carried out a model investigation which stacked the evidence against the employee, even though it was not able to produce unarguable proof of his alleged misconduct. 

Mr Price was employed as a traffic warden from November 2006 until April 2010 in Newtownards, Northern Ireland. He was dismissed after allegations of misconduct. The company alleged that Mr Price had falsified company records on five occasions between the end of January 2010 and the beginning of March 2010. It alleged that, on these five occasions, Mr Price was staying inside during inclement weather at times when his recording device and pocket-book records showed that he was out on patrol. 

The company's suspicions were aroused when a manager, Mr Goddard, noticed that the entries in Mr Price's recording device and pocket book, although consistent with each other, were inconsistent with his observations as to when Mr Price was entering and leaving the company's base. The company accepted that the times of the entries in the recording device were accurate, because the device recorded the time when entries were made and these times could not be altered. However, the company's case against Mr Price was that he was not at the locations where he claimed he was when he made the entries, but was indoors to escape bad weather. 

On becoming suspicious, Mr Goddard began to observe Mr Price when he entered the front of the building, although he could not see the rear exit from where he was. Mr Goddard gathered information on five occasions when Mr Price had entered but not left the building by the front entrance, even though the record on the device said that he was out on patrol. 

Mr Price was suspended two days after the fifth incident, pending a disciplinary investigation. On the same date, Mr Price attended an investigatory interview, which was conducted by Mr Goddard. A second investigatory interview took place a few weeks later after Mr Goddard had carried out what the tribunal later described as an "exhaustive" investigation. At the subsequent disciplinary hearing, Mr Price's main argument was that he had a habit of leaving the premises using the rear exit. The disciplinary officer, Mr Smyth, decided that Mr Price should be dismissed for gross misconduct. This decision was upheld in the disciplinary appeal hearing, which was conducted by another manager, Mr McFadden. 

The industrial tribunal found that the company had carried out as much investigation into the matter as was reasonable in the circumstances. That investigation had led the company to have a reasonable suspicion of Mr Price's guilt. First, Mr Price never provided the company with any convincing explanations for his decision to enter by the front door, but leave by a back fire door, on each occasion. Second, if Mr Price had exited the premises by the back entrance, he would have begun or resumed his patrols in Mill Street, a street that, on several relevant occasions, he did not record passing through electronically or on paper. Third, during each relevant period, Mr Price did not issue any parking tickets. Fourth, on some of the relevant occasions, Mr Price recorded himself as being in streets some distance from the base, at times very close to the times at which he was seen by Mr Goddard to be entering or leaving it. 

Having established that these factors made the decision to dismiss fair, the tribunal went on to look at the procedural aspects of the disciplinary procedure. It concluded that, while information on certain records or sightings was not made available to Mr Price, this had no significant effect on his ability to defend himself in the context of the disciplinary proceedings. 

The tribunal concluded with a reminder that it was not its job to decide whether or not Mr Price was guilty of the relevant misconduct. Its decision-making role was confined to the question of whether or not, in arriving at its conclusion that Mr Price was indeed guilty of the misconduct, the company acted within the "range of reasonable responses". It held that the company had dismissed Mr Price fairly. 

View the full transcript of the case 


Additional resources

Manager's internal email accidentally sent to disabled job applicant constituted harassment

Quigley v London Borough of Lewisham ET/2300679/09

Date added: 14 June 2011

disability discrimination | harassment | duty to make reasonable adjustments

The employment tribunal in this case made the unusual finding that a job applicant was subjected to harassment when he was accidentally sent an internal email that he felt was dismissive of his application. In addition, the decision provides a good example of a very simple reasonable adjustment that the employer should have made: giving the applicant a few extra minutes to prepare for his interview. 

Mr Quigley has dysphasia, which is a condition caused by a brain injury that impairs ability to communicate or concentrate. He applied for the position of senior conservation officer with the London Borough of Lewisham. Mr Quigley's application was made after the official closing date because his disability had caused him to be unwell. 

Mr Ashford, the manager at the council who had advertised the position, initially refused to consider the late application, but Mr Quigley emailed him to ask him to reconsider. Mr Ashford accidentally replied to Mr Quigley, rather than forwarding the email to the recruitment team. His email stated that "a few lines explaining [the council's] rules and why [it] cannot make an exception would be useful to respond". On receipt of this email, Mr Quigley responded that he was "obviously disappointed" that Mr Ashford had decided that he could not make an exception and was "now looking for rules to justify it". Mr Ashford replied that he thought that Mr Quigley had misinterpreted the email that he had sent him "in error", and allowed him to submit his application within a deadline of a few days. 

Practical tips

There is nothing that the employer could have done to prevent the human error of a manager accidentally sending an email to the wrong person. 

However, if the employer had ensured that the manager had bought into its disability policy, perhaps by providing equal opportunities refresher training, the email may not have been written in the first place. 

Simple adjustments that employers can make to a recruitment process include giving a disabled employee a few extra minutes to do a test. This is something that an employee with a condition such as dysphasia or dyslexia would be quite entitled to request. 

Mr Quigley submitted his application, in which he explained that he would need special help at the interview. He asked to see any questions at the interview between five and 10 minutes in advance as an adjustment to assist him. Mr Quigley was shortlisted for the position and invited to attend a test, which was to consist of a period where he examined a planning application and a list of topics that would be discussed in an interview afterwards. 

The recruitment team leader, Mr Maggio, agreed the requested adjustment in a telephone conversation with Mr Quigley. However, when Mr Quigley arrived for the interview, he was simply told that he had 20 minutes to examine the planning application and topics. The council gave no acknowledgment of Mr Quigley's request for extra time. Mr Quigley was placed in a glass cubicle in the reception area to study the test material, an environment that he said was noisy and resulted in "continual visual and audible disturbances" that affected his concentration. 

Mr Quigley completed the test and interview, but later alleged that the limited time and the test environment put extra pressure on him because of his dysphasia, and that he was left "confused and intimidated" immediately prior to the interview. Mr Quigley's application was unsuccessful. Mr Ashford discussed with him the reasons for his failure to get the job, maintaining that another applicant had "demonstrated particularly strong conservation skills and experience" and that he had "looked at [the] notes and she came across stronger at the interview". Mr Quigley sent a letter of complaint to the council's executive director, but was not satisfied with the response. He brought various tribunal claims, which included:

  • direct and indirect disability discrimination;
  • disability harassment; and
  • failure to make reasonable adjustments. 

The employment tribunal found that Mr Ashford's accidental sending of the email intended for the council's recruitment team was an act of harassment. Mr Ashford was aware of Mr Quigley's disability by the time that he sent the email, and Mr Quigley reasonably maintained that receiving the email "distressed him greatly and caused him upset". Although the email had not been sent with the intention of violating Mr Quigley's dignity, that was the result that it had had on him. Looked at objectively, the email conveyed a "harsh and hurtful" message that was dismissive of Mr Quigley's application. Mr Ashford's stance also appeared to be contrary to the council's policy of encouraging applications from those with disabilities and considering reasonable adjustments in its recruitment process. The tribunal also took into account Mr Ashford's failure to offer an apology or explanation for erroneously sending the internal email to Mr Quigley. 

The tribunal upheld Mr Quigley's claims that the council failed to make reasonable adjustments. It noted that Mr Maggio had used a standard template letter inviting Mr Quigley to the interview and that no care was taken to ensure that the letter was amended to take account of his request for an adjustment. Mr Quigley had also made several telephone calls to Mr Maggio to confirm that he would be given extra time during the interview. At the actual interview, the council had largely ignored or treated in a cursory manner the request for what was a reasonable adjustment of a few extra minutes to look at the test questions. 

However, the tribunal found that the allocation of a cubicle in the reception area to study the questions did not constitute a failure to make reasonable adjustments. There was no evidence that Mr Quigley had made a request for a quiet space to prepare and the council could not reasonably have known of any substantial disadvantage that he would suffer. 

The tribunal held that Mr Quigley had also been subjected to direct discrimination. It drew an adverse inference from Mr Ashford's decision to amend all the candidates' scores after the interview panel had met to discuss their performance. The tribunal suggested that Mr Ashford had determined not to recruit Mr Quigley, perhaps as a result of embarrassment over their earlier run-in over the erroneously sent email. A non-disabled comparator would not have been treated in the same way. 

The tribunal was singularly unimpressed with two aspects of this case. First, it was surprised at Mr Maggio's extraordinary use of words when he said that he had "googled" dysphasia to see if the Mr Quigley was "pulling a fast one". This phrase suggested that Mr Maggio viewed Mr Quigley's claims that he has a disability with suspicion. Second, the tribunal was highly critical of the failure to retain the notes taken by the panel during the interview process. 

View the full transcript of the case 


Additional resources

Law firm unfairly dismissed office manager who did not deny harassing colleague

Pacheco v M Reale Solicitors ET/2340553/09

Date added: 9 June 2011

unfair dismissal | disciplinary procedure

In this case the employer was found to have unfairly dismissed the employee, even though she did not deny the serious allegations of misconduct made against her. 

Practical tips

An employee must be able to understand disciplinary allegations against him or her, and be given the opportunity to respond to them, before the employer makes a decision over whether or not to impose a sanction. 

If an employee succeeds in claiming unfair dismissal on a procedural point that would have made no difference to the outcome of the disciplinary proceedings, he or she is unlikely to receive much in the way of compensation. However, the employer will still, at the very least, have spent a great deal of management time and money defending the case. 

Mrs Pacheco was employed by M Reale Solicitors in January 2008. The firm had been set up by Mr Reale, the principal solicitor, and she was his only employee during 2008. Over the course of that year, Mrs Pacheco caused Mr Reale a number of problems relating to insubordination, bad temper and an arrogant attitude. After a disciplinary hearing in December 2008, he issued her with a formal warning. 

By April 2009, Mrs Pacheco was having problems communicating with clients. With her consent, Mr Reale changed her role to that of office manager. The role came with more responsibility and a higher salary, but he warned her that this was her last chance. 

During 2009, Mr Reale employed more staff. Mrs Pacheco complained about them and, the tribunal found, made their working life very difficult. At the tribunal hearing, these staff gave evidence that Mrs Pacheco was “unpleasant”, “very moody” and rude to clients. She targeted one member of staff, Ms Marchioro, in particular, calling a meeting for all staff except Mr Reale and Ms Marchioro, at which Ms Marchioro was the subject. Another member of staff resigned shortly after Mrs Pacheco said that she needed to have a serious talk with her. 

Matters came to a head when one employee, Ms Gimzuinalte, decided to talk to Mr Reale about Mrs Pacheco’s behaviour, and suggested that he talk to the other staff. Mr Reale did so, and obtained written statements from them. He discovered during this investigation that Mrs Pacheco had, allegedly, harassed a colleague by forcing her to disclose her sexual orientation to her colleagues, and humiliating her in front of them by asking her to kiss her. This allegation was corroborated by several members of staff. 

On 24 September 2009, Mr Reale approached Mrs Pacheco to inform her that complaints had been made against her, and that he would be holding a disciplinary hearing to address them. The tribunal found that Mr Reale had not intended to give details of the allegations, but that Mrs Pacheco insisted that he do so. He verbally summarised the complaints, including the harassment allegation. Mrs Pacheco made excuses about her behaviour, but did not deny the allegations, saying that she was surprised that he was “making such a fuss” about it all. 

During this conversation, Mr Reale asked Mrs Pacheco to apologise to the employee she had allegedly harassed. His evidence was that she had responded by saying “you are defending this vulgar creature because you are also gay”, and that she was moving back to Brazil. The meeting was interrupted when a client arrived for Mr Reale, who asked Mrs Pacheco to wait. She did not, and went home. 

When Mrs Pacheco came into work the following day, 25 September, Mr Reale told her that he was going to dismiss her for gross misconduct. The firm’s office manual states that, where Mr Reale is the dismissing officer, the employee can appeal to an independent adjudicator. However, the letter confirming Mrs Pacheco’s dismissal made it clear that Mr Reale would hear any appeal, and on that basis she declined to do so. 

Mrs Pacheco claimed unfair dismissal, arguing that she had had no opportunity to challenge the allegations against her or the decision to dismiss her. The firm argued that it had followed the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website). It claimed that the discussion between Mr Reale and Mrs Pacheco on 24 September 2009 turned, at her behest, into a disciplinary hearing, at which she admitted all of the allegations. 

The tribunal was satisfied that Mr Reale believed that Mrs Pacheco was guilty of the allegations, which were serious. It considered whether or not that belief was based on a reasonable investigation. It found that the purpose of the meeting on 24 September 2009 was to arrange a disciplinary hearing. At that stage, the allegations had not been put to Mrs Pacheco, and she had not seen the statements produced in the investigation or the notes that Mr Reale had taken of meetings with staff. After that discussion had taken place, and before dismissing her, Mr Reale did not carry out any further investigation. 

The tribunal took into account that Mr Reale was in a situation where 75% of his staff had told him that there was a “desperate” situation with Mrs Pacheco, involving serious allegations of harassment. However, the tribunal felt that it could not “get away from” the fact that Mrs Pacheco was not given a chance to see the witness statements to ascertain precisely what had been alleged against her or to consider rationally or calmly what her response would be. It found that a reasonable employer would have put the allegations to her before dismissal. 

The tribunal was also concerned that, contrary to what the firm’s office manual provided, Mrs Pacheco’s dismissal letter was written in such a manner as to make it clear that Mr Reale would deal with any appeal. 

Taking everything into account, the tribunal found that Mrs Pacheco had been unfairly dismissed, and upheld her claim. However, it also found that a proper disciplinary process would have made no difference to the outcome. Accordingly, it declined to make a compensatory award, leaving her with a basic award of £700. 

View the full transcript of the case 


Additional resources

Employee unfairly dismissed for frequent use of mobile phone at work

MacFadyen v Flexible Engineered Solutions Ltd ET/2503231/2010

Date added: 8 June 2011

unfair dismissal | personal mobile phone use | refusal to work overtime

This case involves an employer that, rather than deal with problems with an employee's behaviour and attitude by giving him a series of warnings, used them as an excuse to dismiss him. 

Practical tips

Employers should have a clear policy on the use of personal mobile phones in the workplace. If employers do not place an outright ban on employees using mobile phones during working hours, they may wish to set out when personal use will be allowed (for example, during breaks or in the case of an emergency). 

There is no general requirement for employees to work overtime when asked to do so by their employer. Employees can be required to work overtime only if this is provided for in their contract of employment. 

Since 2005, Mr MacFadyen had worked as a fitter for Flexible Engineered Solutions Ltd, a small employer with around 20 employees. Employees were allowed to use their mobile phones in the workplace and Mr MacFadyen said that he often did so to do work-related calculations, but also to receive phone calls from his mother. He did a lot of overtime when the company had a lot of work on. The company's staff handbook does not require employees to do overtime. 

In 2009, the company's management noticed a serious change in Mr MacFadyen's attitude to his work after a new workshop manager, Mr Poynter, was appointed. This change in behaviour seems to have been prompted by Mr MacFadyen's resentment at being passed over for the manager's job. Mr MacFadyen felt that Mr Poynter had been appointed only because he was a friend of Mr Latimer, one of the company's directors. 

Issues about Mr MacFadyen's behaviour that arose after Mr Poynter was appointed included accusations that he had: 

  • taken a half-day's holiday without permission, despite being told when he was leaving not to go by Mr Anderson, the joint company owner; and
  • sent an inappropriate text to Mr Anderson on a work-related night out complaining about the failure of company directors to make an appearance at the social event, with one of Mr MacFadyen's colleagues allegedly having to take the phone off him to stop him from sending more texts. 

Mr MacFadyen had also been given an unofficial warning about his poor attitude and lack of respect for his colleagues, and been the subject of a complaint about his attitude in an email from Mr Poynter to the directors. 

Mr MacFadyen began to refuse to do overtime. When Mr Anderson asked him why he would not do overtime, Mr MacFadyen responded that, although he had always done extra hours in the past, he was not required to do overtime. He also told a colleague that he had a new puppy that had had an accident and he could not leave it unsupervised. 

It was clear that the atmosphere between Mr Poynter and the other workers had deteriorated. Mr Poynter made complaints about Mr MacFadyen's alleged constant use of his mobile phone. This problem culminated in an argument during which there was "shouting and swearing" and Mr MacFadyen was asked to leave the premises. Mr MacFadyen was suspended and he later claimed that he was given the option in a meeting (attended by, among others, Mr Oliphant (another director) of resigning with "a good reference and a settlement" or being dismissed for gross misconduct. 

A disciplinary hearing was held by Mr Oliphant. Mr MacFadyen said that, although he believed that he had been promised the job and was disappointed, he had been harassed by Mr Poynter. He gave the example of Mr Poynter following him around and calling him "huffy". Reference was also made to Mr MacFadyen's refusal to work overtime, with his explanation being that his puppy had been unwell. At the end of the hearing, Mr Oliphant indicated that he was going to make further enquiries, while Mr MacFadyen stressed that he had not been given any formal warnings and should be allowed the opportunity to improve his behaviour. 

After a further meeting with the directors, Mr Oliphant decided that Mr MacFadyen should be dismissed for the gross misconduct of persistent and long-term disruptive behaviour, insubordination and failure to follow reasonable management instructions. Mr Oliphant heard the appeal and upheld his original decision to dismiss Mr MacFadyen. 

The employment tribunal held that Mr MacFadyen's behaviour did not constitute gross misconduct. It referred particularly to Mr MacFadyen's frequent use of his mobile phone at work as an important part of the company's justification for his dismissal. The tribunal pointed out that the company permitted the use of mobile phones in the workplace. The tribunal felt that the management had already taken the decision to dismiss him before the disciplinary hearing, citing the option that Mr MacFadyen was given of resigning or being dismissed. 

In addition, the tribunal found the company's disciplinary process to have been procedurally flawed. Mr Oliphant had been at the meeting when Mr MacFadyen was asked if he would like to resign or be dismissed and had gone on to chair both the disciplinary hearing and disciplinary appeal hearing. The tribunal thought that, by the time of the appeal, it was "inconceivable" that Mr Oliphant might reverse his earlier decision to dismiss. The tribunal was not convinced that the size of the company justified one individual overseeing every stage of the disciplinary process. 

The tribunal did reduce Mr MacFadyen's compensation by 25% for contributory fault because he was aware that management had a problem with what it perceived to be excessive use of his mobile phone. Mr MacFadyen's total award for unfair dismissal came to £4,627.80. 

View the full transcript of the case 


Additional resources

Employer deliberately falsified employee’s disciplinary record

Bentley v Supertravel Omnibus Ltd ET/2102862/10

Date added: 7 June 2011

constructive dismissal | disciplinary sanctions | record of disciplinary process

This case concerns an employer accused of deliberately fabricating an employee’s disciplinary record. 

Practical tips

This decision is a clear example of how the tribunal can determine, on the balance of probabilities, that one witness’s evidence is more credible than another’s. 

In this case, it seems that the employer forgot to issue the claimant with a final written warning, and then attempted to rectify the situation by fabricating documents at a later date. 

It is good practice to require an employee to sign and return confirmation of any disciplinary sanction issued against him or her. 

Mr Bentley was employed as a bus driver by Supertravel Omnibus Ltd, which provides bus services in Liverpool. He did not have a particularly good disciplinary record and, in March 2009, was issued with a written warning. In accordance with the company’s disciplinary procedure, he was penalised with the loss of two weeks’ bonus pay. 

On 7 August 2009, Mr Bentley attended a second disciplinary hearing, regarding four allegations including performing a dangerous bus manoeuvre with passengers on board. The hearing was held by Mrs Bolderson (director) and her son, Mr Brown (transport manager), whose minutes of the hearing were inadequate. There was a conflict in the evidence regarding how the meeting was concluded. The tribunal found that, although Mrs Bolderson said that the outcome of the hearing could be a final written warning, she made it clear that no decision had been made and that she needed to consider the matter further. Whether or not Mr Bentley was issued with a disciplinary sanction in respect of this hearing was the crucial issue in his tribunal claim. 

Mr Bentley was on annual leave for two weeks after the disciplinary hearing, including on 12 August 2009. 

On 19 February 2010, Mr Bentley attended a third disciplinary hearing, to address four charges including reporting late for work. The hearing was held by Mr Blair (senior operations manager). During the hearing, Mr Blair made reference to a live final written warning on Mr Bentley’s file, and indicated that this had been issued on 12 August 2009. Mr Bentley immediately stated that he had been issued with a written warning, not a final written warning. Mr Blair adjourned the hearing to seek clarification on the matter. 

Mr Brown emailed Mr Blair stating that, with regard to the 7 August 2009 disciplinary hearing, three of the four allegations had been dropped. He said that, at the hearing, it was confirmed to Mr Bentley that he would be issued with a final written warning for the fourth (and most serious) allegation of manoeuvring his bus dangerously with passengers on board. He also said that, on Mr Bentley’s return from holiday, he was given the minutes of the hearing and a letter confirming the final written warning. 

The adjourned disciplinary hearing was reconvened on 1 March 2010. Mr Bentley’s union representative, who had been present at the 7 August 2009 hearing, insisted that no final written warning had been issued to Mr Bentley, and that no bonus had been deducted at the time, as required by the company’s disciplinary procedure. Mr Blair referred to written statements by Mrs Bolderson and Mr Brown stating that Mr Bentley had been told that he had been given a final written warning. Mr Brown’s statement said that he had personally given Mr Bentley a letter confirming the sanction. 

The hearing was adjourned again but, before Mr Blair made a decision on the outcome, Mr Bentley resigned. He stated that he had no trust in the company as a result of the “fabrication and falsification” of his conduct record by Mrs Bolderson. He claimed constructive dismissal. 

At the hearing, the company’s evidence included two key documents. The first of these was a letter, dated 12 August 2009, confirming Mr Bentley’s final written warning. The letter stated that it was delivered “by hand”, and did not refer to any loss of bonus in respect of the sanction. The second was a “review document”, which detailed, point by point, the disciplinary hearing of 7 August 2009. The document, written by Mrs Bolderson, was alleged by the company to have been produced at the end of 2009. It recorded that Mr Bentley was told that he would be issued with a final written warning, and that, on 18 August 2009, Mr Brown had given him the letter confirming this sanction. The tribunal also noted that Mrs Bolderson had recorded, on the minutes of the disciplinary hearing of 7 August 2009, “copy given with written warning 12/8/09”. 

The tribunal observed that this was a case where the outcome hinged on the evidence of Mr Bentley, Mrs Bolderson and Mr Brown, all of whom it found had given less than credible evidence at some stage during the proceedings. It made detailed findings as to whose version of events was more likely. 

On balance, the tribunal found that Mr Bentley had not been issued with a final written warning, and that Mr Brown had not given him the confirmation letter of 12 August 2009. It found that Mrs Bolderson’s review document had not been produced until “considerably” later than the company alleged, in response to Mr Bentley’s statement that he had not been issued with a final written warning. It also found that Mrs Bolderson’s note on the minutes of the 7 August 2009 disciplinary hearing had been made “at a much later date”. 

The tribunal found that Mrs Bolderson and Mr Brown had made false statements about Mr Bentley’s disciplinary record, and that these amounted to a fundamental breach of contract. By the time of the third disciplinary hearing, in February 2010, Mr Bentley was aware that he was in danger of being dismissed, and that his dismissal would be on the basis of the false statements that he had a live final written warning on his file. 

The tribunal found that Mr Bentley had been constructively dismissed, and upheld his claim. 

View the full transcript of the case 


Additional resources

Employee who did not return from India on time was fairly dismissed

Bhopal v Virgin Media Ltd ET/3201800/10

Date added: 2 June 2011

unfair dismissal | gross misconduct | holiday

This case involves a common problem for employers: an employee suspected of abusing his or her holiday entitlement. 

Practical tips

This case demonstrates that, regardless of whether or not an employee’s explanation for alleged misconduct is true, the crucial issue in an unfair dismissal claim is whether or not the employer’s decision to dismiss him or her was within the band of reasonable responses. 

As the tribunal in this case recognised, this means that, sometimes, innocent employees will be dismissed. 

Employers should always ensure that they make any disciplinary decisions based on a proper consideration of all the relevant circumstances and evidence. 

Mr Bhopal worked as a sales representative for Virgin Media Ltd. In February 2010, he requested two weeks' annual leave for a family holiday in India. The company approved the request, and he was due to return to work on 6 April 2010. 

However, Mr Bhopal did not return to work on 6 April. That afternoon, he telephoned his line manager, Mr Desscan, to say that he was still in India and unable to get a flight back to the UK. There was a conflict of evidence over whether Mr Bhopal stated that he had an open ticket or one with a fixed return date, and whether or not Mr Desscan made it clear that being absent without leave was a serious matter. 

The two men next spoke on 9 April 2010, when Mr Bhopal said that he had still been unable to obtain a return flight to the UK, and that there was no immediate prospect of his being able to do so. Mr Bhopal left a voicemail for Mr Desscan on 13 April, stating that he was still unable to get a seat on a flight. On 16 April, Mr Bhopal told Mr Desscan that he had tried to book a seat with a different airline, but that the ash cloud from an Icelandic volcano had resulted in all flights to the UK being grounded. 

Mr Bhopal eventually returned to work on 26 April 2010, and was questioned about the matter by Mr Desscan. He provided evidence of his ticket, which was fixed rather than open, and confirmed that he had flown to India knowing that he had a fixed return date of 30 April, which was three weeks longer than the leave period authorised by the company. Mr Bhopal’s explanation for not alerting Mr Desscan to this fact was that he had been assured by his travel agent that he could change his return ticket when he arrived in India. However, it became clear that Mr Bhopal had not tried to change his ticket on arrival, and had waited until the end of his authorised annual leave before doing so. 

Mr Desscan was not satisfied with Mr Bhopal’s explanation, and the matter proceeded to a disciplinary hearing on 28 April 2010, where Mr Bhopal maintained his version of events. He stated that the travel arrangements had been made by his father, and that he had become aware of the fixed return date only very shortly before he was due to leave the UK. 

The disciplinary officer, Mr Aydiner, concluded that the reason that Mr Bhopal had not immediately taken steps to change his return flight on arriving in India was because he had left the UK intending to remain on holiday beyond his authorised leave period. Mr Aydiner felt that Mr Bhopal had called Mr Desscan on 6 April 2010 to “legitimise” his extended absence, and that he had made real efforts to return only after being told by Mr Desscan that absence without leave was a serious matter. He concluded that Mr Bhopal had breached the duty of trust and confidence and effectively lied about his intentions and reasons for not returning at the end of his authorised leave period. 

Mr Bhopal was dismissed for gross misconduct. As part of his appeal, he presented two pieces of evidence that he did not have at the disciplinary hearing, which had been held only two days after his return from India. One of these was a letter from his travel agent stating that it had advised him that he would be able to change his return flight on arriving in India. The other was an email, purportedly from an airline, setting out his attempts to secure a flight home on “standby”. The appeal officer took the new evidence into account, but considered that Mr Bhopal’s actions regarding his holiday were premeditated and that he had lied in order to give a false impression of “innocence”. 

Mr Bhopal claimed unfair dismissal, arguing that it should have been apparent to the company that he had been telling the truth about his holiday arrangements and that he had no intention of overstaying his authorised period of leave. He alleged that the company had, by the time of the holiday incident, already decided to dismiss him for other reasons. 

The tribunal found that the company had carried out a fair investigation, and that the reason for dismissal was its genuine belief in Mr Bhopal’s misconduct. It also held that this belief was reasonable, and that the evidence that Mr Bhopal had produced at his appeal hearing was, though consistent with his version of events, also consistent with the company’s view of the matter. 

The tribunal held that, although a different employer might have given Mr Bhopal the benefit of the doubt, the company’s decision to dismiss him was within the band of reasonable responses. The tribunal made no finding as to whether or not Mr Bhopal was telling the truth regarding his holiday arrangements, which was irrelevant for the purposes of deciding whether or not he had been unfairly dismissed. 

View the full transcript of the case 


Additional resources