Tribunal cases - The important of HR policies

In our most recent newsletter, we discussed Unfair Dismissal and the potential consequences for employers.

Here, we consider a couple of cases which highlight the importance of having well defined policies in place in order to defend a claim for Unfair Dismissal in the Employment Tribunal.

In Fekete v Citibank, the employment tribunal found that a senior analyst who included his partner’s meals on his expenses was fairly dismissed. Mr Fekete had been employed by Citibank since July 2015.

He had a business trip to Amsterdam on which he took his partner. Upon his return, he submitted an expense claim which, amongst other items, included a meal for two people.

His employer asked him about the claim but he was vague in answering. There was then an investigation during which he was asked the direct question as to whether the expense was in respect of two people to which he answered that it was not.

Subsequently, he admitted that in fact it was, and a disciplinary meeting was convened. Mr Fekete was summarily dismissed for Gross Misconduct. The employer had a very clear expenses policy in place which stated that a list of all people for whom expenses were being claimed was required, and specifically that expenses for accompanying partners were excluded. They therefore found that he had breached the expenses policy; in addition, as he had failed to admit to this when originally questioned, this constituted serious non-compliance with their banking code of conduct. Mr Fekete brought a claim for unfair dismissal.

The Employment Tribunal found that the wording of the expenses policy meant that he would have been well aware that he could not claim expenses in respect of his partner’s meal. Whilst this may have been an initial error in submitting the claim, he had opportunities to correct this but had failed to do so. Summary dismissal fell within the range of reasonable responses and was therefore fair

In Glenholmes v Network Rail Infrastructure Ltd, the Tribunal found that a train technician who inadvertently took cocaine was unfairly dismissed, but not entitled to compensation.

Mr Glenholmes had been employed by Network Rail Infrastructure Ltd since July 2014. He tested positive for cocaine in a routine drugs test at work and was suspended. There was an investigation during which Mr Glenholmes stated that he had bought some “Peruvian tea” from a market stall; no ingredients were listed for the tea but subsequent to the failed drugs test he had researched it and found that it contained cocaine. He further stated that he would not have bought it had he known.

A disciplinary meeting was convened and Mr Glenholmes was summarily dismissed for Gross Misconduct.

The employer had a very robust policy in place which clearly stated that, due to the safety critical nature of their work, they had a zero tolerance approach to the use of illegal substances, The policy was also contractual. Mr Glenholmes brought a claim for unfair dismissal.

The Employment Tribunal found that there had been some procedural errors made by the employer and that on this basis the dismissal was unfair. The Tribunal held, however, that the employee had contributed to his dismissal by failing to research the tea prior to consuming it, knowing the approach which his employer had in their drugs policy. For that reason, whilst the claim for unfair dismissal was upheld, there was a 100% reduction in the compensation which would be awarded.

Employers should have well-defined policies in place to make clear to employees what actions or behaviours will be considered to be gross misconduct. Such policies must be easily accessible to employees and their existence communicated in order for the employer to be able to rely on them to dismiss. Provided that the employer conducts a fair procedure, it will be able to demonstrate that summary dismissal falls within the range of reasonable responses.

Employers should have well-defined policies in place to make clear to employees what actions or behaviours will be considered to be gross misconduct. Such policies must be easily accessible to employees and their existence communicated in order for the employer to be able to rely on them to dismiss. Provided that the employer conducts a fair procedure, it will be able to demonstrate that summary dismissal falls within the range of reasonable responses. HR Solutions can provide policies for you including Expenses, and Drugs and Alcohol policies, and can advise you on how to conduct a fair procedure when addressing an issue of potential Gross Misconduct.