Disciplinary Investigations – Well-Resourced Employers Have to Do More
Workplace disciplinary investigations may not have to attain the high standards of a judge and jury, but the scale of resources available to a big employer is relevant to the question of fairness. An Employment Tribunal (ET) made that point in upholding an unfair dismissal claim brought by a supermarket cashier who was accused of being rude to a customer.
In the incident, the cashier was soaked with sticky liquid after a customer’s can of drink fell off her conveyor belt and exploded. The customer, who could lip read, had witnessed the cashier using an offensive term towards her.
Following the incident, she engaged in a lengthy and inappropriate dialogue concerning the incident with other customers. She denied having sworn at the customer but, following an investigation and disciplinary hearings, she was summarily dismissed. The cashier was, at the time, in remission from breast cancer and suffering other health and personal difficulties.
In ruling on her complaint, the ET found that the two managers who presided over the disciplinary process genuinely believed that she was guilty of gross misconduct. The investigation was not judicial or quasi-judicial in nature. However, the chain’s resources were far greater than those available to a small employer, as she was one of over 100,000 people employed by the supermarket chain.
In upholding her claim, the ET found that there had been no investigation of the context of the incident. No reasonable employer would have failed to interview the woman’s supervisor and other customers who were present at the scene and who had expressed a willingness to speak in her support.
The failure to do that was a breach of the chain’s published disciplinary policy and the investigating manager did not appear to have approached the matter impartially, with an open mind. On that basis, the ET found that the woman’s assertion that her guilt had been pre-judged was substantially correct.
Noting, however, that she had clearly raised her voice and, on her own admission, lost her temper, the ET found that her compensation should be reduced by 50 per cent. This would take account of her own share of responsibility for her dismissal. Her award was assessed at £5,124.