Case Studies

Case Studies

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Successfully manoeuvring out of a tight spot in a disciplinary process

Published 06 October 2021

We all like a good laugh at funny video clips, but if they are work-related the joke can sometimes fall flat.

Retail worker Joan filmed a motorist repeatedly trying, and failing, to reverse into a parking space outside the store where she worked.

Joan, who had worked for her employer for just over a decade, posted the clip on her personal Facebook page. It included brief commentary about what she was witnessing.

Unfortunately for Joan, the clip was brought to the attention of a manager. Apologetic Joan admitted that what she did was wrong.

She was later dismissed for breaching her employer’s social media policy and bringing the company into disrepute.

Distraught Joan believed the decision was unfair. She contacted the Castle Associates Employee Support Centre for help to challenge it.

Joan initiated the disciplinary appeal process with the help of our representative.

Our representative quizzed Joan about her desired outcome to her appeal. She originally said it was to clear her name and to be able to leave without a dismissal on her record.

In discussing the options available, Joan originally felt a settlement agreement was her preference.

However, Joan later changed her mind and said she wanted to be reinstated.

The reason for the change of heart was that Joan had successfully submitted a flexible working request, which allowed her to provide care for a disabled relative. On reflection Joan felt it was unlikely that a new employer would allow her to work the same hours.

At the disciplinary appeal hearing our representative asserted the decision to dismiss Joan was unfair and unduly harsh.

He highlighted the fact Joan was genuinely remorseful from the outset  and apologised immediately when she was suspended from work.

Key in the appeal was the disciplinary process conducted, which our representative maintained was unfair. This included: highlighting evidence from the disciplinary hearing to support the belief the outcome was predetermined; emphasising that the disciplinary investigation was flawed and unfair; showing that the hearing chair repeatedly expressed her personal opinion; and that she was dismissive of mitigating factors.

Our representative made the point a decision to dismiss can be found to be unfair if the process conducted was unfair.

 The ACAS Code of Practice on disciplinary and grievance procedures is the minimum an employer should follow when conducting disciplinary cases.

Our representative presented evidence from the case to show a number of breaches of the Code, and of the employer’s own disciplinary policy.

Included in this was what was described as an inconsistent approach to disciplinary matters regarding social media posts. The ACAS Code advises employers to act consistently.

Joan had informed our representative of two colleagues who had received informal warnings for social media posts, which were much more serious. One of those posts had received local media attention.

Our representative said as a result of being treated differently, Joan was justified in feeling victimised and that she had been treated unfairly

The appeal hearing chair was reminded that where an employer fails to adhere to the ACAS Code, an employee will be able to claim an uplift of up to 25 per cent on any compensation awarded by an employment tribunal in any subsequent claim for unfair dismissal.

The point was also made that no evidence had been presented to support the allegation the employer had been brought into disrepute.

This was backed up by the fact the driver had not complained, there was no negative publicity or any other complaints.

In mitigation the hearing was told: Joan had shown real remorse from the outset, taken appropriate learning from what occurred, her actions were out of character and she had long service and an exemplary disciplinary record prior to the incident.

It was argued by our representative that dismissal appeared an automatic outcome and a lesser sanction was not considered, as it should have been.

Joan was later reinstated and the disciplinary sanction downgraded to an informal warning.

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. 


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