An unusual disciplinary case where there really was smoke without fire.
Published 18 November 2020
Surveillance cameras are everywhere, so we know if we do something wrong there is a good chance it may be caught on film.
Employees have been fired for wrongdoing captured on video, which means the evidence is usually irrefutable.
Funeral service operative Jason faced the threat of dismissal after being filmed committing what was said to be a serious breach of one of his employer’s rules.
Although the evidence was conclusive, it was successfully argued that it would be unfair to formally sanction him. He was cleared of any wrongdoing.
Jason was said to have been caught on camera breaching his employer’s smoking policy.
Staff could take cigarette breaks off the premises and out of sight of visitors to the funeral director.
Camera footage showed Jason, who had three years’ service, walking out of the entrance to the car park while talking on his mobile phone.
He then stops, just a few yards beyond the car park entrance and lights a cigarette ten seconds before he ends the call and walks out of sight.
Jason was shocked when he was summoned to his manager’s office two weeks later and suspended from work for breaching the smoking policy.
He was oblivious to what he had done and protested his innocence. Jason was informed there was camera footage to support the allegation.
Jason attended an investigation/fact finding meeting as part of a disciplinary investigation.
It was revealed at the meeting that Jason had been caught on dash cam - a video camera mounted on the dashboard or windscreen of a vehicle and used to continuously record the view of the road.
The employer refused to say who the vehicle belonged to or how it obtained the footage. Jason accepted the allegation when confronted with the video.
He explained it was a momentary lapse after taking a phone call about his mum being taken to A&E.
He insisted that he lit the cigarette without thinking, but quickly walked off and did not stand outside the building smoking it.
Jason was later invited to a disciplinary hearing to face an allegation of breaching the smoking policy.
The letter inviting Jason to that hearing warned that the allegation was very serious and could lead to his dismissal. He was also provided with a copy of the footage.
Jason accepted the allegation but felt dismissal would be unduly harsh. He contacted the Castle Associates Employee Support Centre for help.
He discussed his case with our representative and shared the footage with him.
Our representative was concerned about the evidence in the case. He felt the use of dash cam footage and secrecy around how it was obtained was extremely unfair.
At the disciplinary hearing our representative acknowledged that an employer can monitor its employees.
The hearing was told that an employer must meet its requirements on the use of data, and that the use of what can be considered surveillance camera footage breached those rules and cannot be justified or considered fair.
He argued that the manner in which the footage was obtained, the mystery around it and how it was being used was grossly unfair.
It was also explained that Jason made a genuine mistake in lighting the cigarette after receiving upsetting and worrying news. It was highlighted how quickly he moved away after lighting the cigarette.
The hearing was told he wished to apologise for what he did and that he had taken appropriate learning from it.
It was also pointed out that the ACAS Code of Practice advises employers to use the discipline process to correct rather than punish and to encourage the employee rather than sanction them, which would be appropriate in this case.
The disciplinary hearing chair later dismissed the allegation. He issued Jason with informal words of advice about smoking breaks – and the benefits of kicking the habit.
“A reputation built on success”
For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611