Partner Article

Playing fair with ‘troublesome’ employees

It’s HR focus week on Bdaily. Here, Sara Barrett, partner at Mills & Reeve, analyses the issues surrounding unfair dismissal.

The majority of managers, if asked, would be able to identify an employee who they would regard as ‘troublesome’.

However, employers must be scrupulous in treating all members of staff, including those who may have complained in the past or have raised issues, in exactly the same manner as they would other staff who have not.

Employees who have cited issues, such as a request for reasonable adjustments (if disabled) or raised grievances, may be regarded as “troublesome” by the managers who have to deal with such requests. However, the taking of such action by the employee is regarded by the law as a protected act.

If an employee feels they are treated differently than other employees as a direct result of committing these protected acts, they may have grounds for claims of victimisation which can lead to substantial compensation.

This was demonstrated in a recent case involving a kosher bakery in which the Employment Appeal Tribunal (EAT) deemed an employer who had dismissed a member of staff who admitted gross misconduct, was still liable for victimisation.

The claimant, who was dismissed for knowingly using non-kosher ingredients, had a history of sciatica and was a disabled person. The claimant felt his employer was unsympathetic and, as such, had previously brought proceedings for disability discrimination.

While intentionally using non-kosher jam in a cake was an act of gross misconduct which could result in the withdrawal of the bakery’s licence, the practice of substituting non-kosher ingredients appears to have been previously tolerated by the bakery’s line manager when there were supply shortages.

Against this background the EAT ruled the claimant’s dismissal without any proper investigation supported an inference that his misconduct was being used as a pretext for getting rid of a troublemaker.

In particular, there had been a failure to speak to the employee at all before deciding to dismiss, or to take any steps to investigate another employee who was also “in the frame”, specifically the shift manager who had authorised the use of non-kosher jam. The employee’s treatment was therefore victimisation, for which he received £14,000 compensation for injury to feelings.

The EAT confirmed the key task of the tribunal in these cases was to examine whether the employee’s history of asserting his rights under discrimination legislation significantly influenced the decision to dismiss. It did not need to be the only reason. Just because an employee commits gross misconduct doesn’t automatically make the dismissal fair, employers must still follow a fair procedure.

This case is one of a number this year and acts as an important reminder of the need to carry out as much investigation as is reasonable prior to conducting disciplinary proceedings, even when the employee admits fault.

This was posted in Bdaily's Members' News section by Mills & Reeve, Manchester .