Failure to investigate renders dismissal unfair.
As an outsourced HR support Company we are used to clients overreacting sometimes and we understand that disciplinary events can sometimes become personal, sometimes at the expense of objectivity and good decision making. In this disciplinary case the employer’s investigating manager went completely overboard, leading to an inevitable finding of an unfair dismissal and possible disability discrimination. It makes good reading on a ‘what not to do’ when dealing with disciplinary cases view point.
Mr Raymond, a diabetic lorry driver worked for Asda for 15 years. He felt an urgent need to relieve himself and did so in what he called ‘a discreet corner’ of a North London lorry yard. A security guard saw him and reported the matter to his employer who appointed an investigating manager. The manager, after an inadequately cursory investigation, referred the matter to a disciplinary hearing for gross misconduct after which Mr Raymond was dismissed for, amongst other things, breach of health and safety policy, endangering himself and or others and bringing the Company into disrepute.
Did his diabetes contribute to the incident? How far was the nearest loo? What was his version of events? We’ll never know because these rather obvious questions were not asked, and this was a fatal flaw in this case. We presume that a different manager heard the hearing itself (acas recommends different people for the investigation & hearing stage) but if that was the case, the new manager clearly did not recognise or seek to correct the inadequacy of the investigation, and Mr Raymond was fired without any more ado.
What should the employer have done in these circumstances? As an HR outsourcing company providing HR support to some 100+ clients we frequently deal with disciplinary investigations, sometimes on behalf of clients and sometimes coaching our clients to do it for themselves. Here is our step by step guide to how it should have been done.
A thorough investigation should have involved:
- a statement from the security guard (and any other witnesses)
- a review of any CCTV footage
- an interview with Mr Raymond
- confirmation of where the nearest loo was, and how long it would have taken him to get there.
In Mr Raymond’s interview he should have been asked why he couldn’t make it to the loo, whether he had any medical conditions that impacted on his need to relieve himself that day (we presume his diabetes would have been raised at this point) and whether he had previous incidents of this nature – if so we would expect him to be able to give some real examples without too much difficulty.
If the investigating manager had any doubt about Mr Raymond’s testimony, he may also have decided to seek an occupational health opinion to establish where an urgent and uncontrollable need to wee was indeed something he might conceivably be suffering from as a symptom of his diabetes. We would not have suspended Mr Raymond while these investigations took place, as the offence was hardly one likely to cause further harm.
If the investigating manager concluded that Mr Raymond was simply being lazy, and therefore guilty of misconduct, he should at that point have written up his investigation and passed this on to the disciplinary hearing manager (sometimes myHRdept carry this out for our HR outsource clients.) He should not make a recommendation of an outcome, but should simply recommend that a disciplinary hearing seemed appropriate.
A well constructed and thorough investigation is essential for a fair eventual outcome, yet so many employers get this important stage so badly wrong. It can be time consuming and that is why our clients often outsource this task to myHRdept.
If a hearing is appropriate Mr Raymond should have been invited in writing (with a companion if he wanted one) with a copy of the investigation report and advice on the possible outcome. Weeing on a lorry tyre in a commercial compound (away from customers) does not feel like gross misconduct to the HR team here at myHRdept, though we think it could possibly be misconduct.
The disciplining manager should consider, amongst other things:
- Mr Raymond’s length of service and previous disciplinary history
- whether the investigation addressed all the obvious issues
- whether Mr Raymond had anything to say in mitigation of his actions
- any available medical evidence
The sanction (and any appeal)
In deciding the sanction the disciplining manager should consider, on the weight of the evidence and information available, whether it was more likely than not that Mr Raymond’s actions were as a result of misconduct. Misconduct is more likely to be the conclusion if a nearby loo was available and/or if medical evidence suggested that his actions were not likely to be attributed to his diabetes.
If misconduct was the conclusion then Mr Raymond’s previous history becomes relevant. With 15 years’ service we would expect the employer’s knowledge of him to be pretty comprehensive. If his record was clean, perhaps an informal warning might suffice on this occasion, but of course if he was already on a misconduct related final warning, this could have been the incident that resulted in his dismissal. Mr Raymond would then be entitled to appeal against any disciplinary warning and if he did, another manager not involved in the investigation or hearing stages should be tasked to chair the hearing.
The disciplinary hearing and appeal notes should be carefully written up and stored securely on Mr Raymond’s employee file in accordance with GDPR guidelines.