Employee who commits gross misconduct wins unfair dismissal and victimisation claims

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You should read this update if you conduct disciplinary proceedings

The 20 second summary

  • Just because an employee commits gross misconduct doesn’t automatically make the dismissal fair. The employer must still follow a fair procedure. However, an employee’s contributory conduct may reduce the amount of compensation received for unfair dismissal.
  • It is victimisation to dismiss someone who is regarded as a ‘problem employee’ because he has previously raised discrimination issues, when the employer would have shown leniency to someone else.

Employee dismissed for using non-kosher jam at a kosher bakery

In Carmelli Bakeries Ltd v. Benali, the employee was a pastry cook at a bakery. The bakery was licensed to sell kosher food which conforms with the requirements of Kedassia, a very strict authority requiring the highest standards of purity. Failure to adhere to those standards could result in the withdrawal of the bakery’s licence, with catastrophic effects on the business. The employee was caught using non-kosher jam. He was dismissed for gross misconduct.

The EAT confirms that the employee was unfairly dismissed…

Even though the employee admitted using non-kosher jam, the disciplinary process conducted by the employer was cursory, and therefore unfair. In particular, the bakery did not investigate the employee’s claims that the shift manager had authorised the use of non-kosher jam. The bakery also didn’t conduct a fair appeal hearing. This rendered the dismissal unfair. However, the EAT said that the employment tribunal should consider whether to reduce the £35,500 compensatory award (one year’s loss of earnings) to take account of the employee’s contributory fault in his dismissal.

… and was also victimised

The employee was regarded as a ‘problem employee’ for having previously making disability-related requests and complaints. The bakery was not prepared show leniency in the way it would have done with a different employee. The employee’s treatment was therefore victimisation, for which he received £14,000 injury to feelings.

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