Employers can define their own policies, noting what types of behaviour will be classed as gross misconduct, however it is important to consider what is perhaps a zero-tolerance type conduct, e.g. theft, use of drugs or breaches of safety procedures or a lesser offence that could be classed as misconduct. It is important that these policies are well publicised.
Where an employer concludes using its own policies, after a reasonable investigation and fair disciplinary process, that an employee has committed an act of gross misconduct, it will be in a strong position to defend an unfair dismissal claim.
It is helpful to look at some cases, where perhaps procedurally there were some mistakes in the process, but employees knew what was gross misconduct, whether it be the Health and Safety Procedures or an Expense Policy.
Doors opened on wrong side of tube train
Gritton v London Underground Ltd ET/3204049/22
Ms Gritton was summarily dismissed following a disciplinary process, Ms Gritton appealed the decision unsuccessfully. She brought a number of employment tribunal claims, including for discrimination arising from disability and unfair dismissal.
An employment tribunal refused to compensate the long serving train driver despite finding her dismissal procedurally unfair.
Failed drugs test caused by cocaine in Peruvian tea
Glenholmes v Network Rail Infrastructure Ltd ET/2602425/22
An employment tribunal refused to compensate a technician who was dismissed after inadvertently drinking tea containing cocaine.
During a periodic drug and alcohol test, Mr Glenholmes tested positive for recent cocaine use. He was suspended and an investigation was carried out. He claimed that the likely cause of the result was the tea. Having researched it after failing the drugs test, he had found out that it contained cocaine. He said that he would not have bought or consumed it had he known. Following a disciplinary hearing, the company dismissed him for gross misconduct, he brought a claim for unfair dismissal.
The tribunal took into account that Mr Glenholmes worked in a safety critical environment and that he was aware of the company’s zero tolerance approach to the use of certain drugs. The company’s drug and alcohol policy was incorporated into his contract.
Although the dismissal was procedurally unfair, the tribunal decided that any compensation should be reduced by 100%.
Failure to rectify expenses claim that included partner’s meals
Fekete v Citibank NA ET/3200775/23
An employment tribunal held that a senior analyst who had wrongly claimed expenses for his partner’s meals and then failed to own up to his mistake was fairly dismissed. The bank held that Mr Fekete had breached the expenses policy and that his repeated misrepresentations during the investigation constituted serious non-compliance with the bank’s code of conduct. He was dismissed for gross misconduct.
Mr Fekete brought a claim for unfair dismissal. The tribunal held that the bank’s decision to dismiss him was within the band of reasonable responses.
Do you know what policies you need to support your business and reflect the sector you operate within? Guildford HR works within a number of different sectors and can supply you with bespoke disciplinary and conduct policies, or we have excellent templates that you can amend to reflect your day to day operation. Contact us today on 01483 362732 or hello@guildford-hr.co.uk to arrange a free of charge discovery call.
