How company narrowly avoided heavier tribunal penalties

An online food retailer faced an unfair dismissal claim after dismissing a UK Field Sales Manager. Whilst the Employment Tribunal found the dismissal to be procedurally unfair due to significant flaws in the disciplinary process, the employer's efforts to correct initial errors and the Claimant's own conduct led to a 25% reduction in compensation. This outcome demonstrates how and why professional HR, even when imperfect, can mitigate more severe legal risks.

If you need support ensuring your processes and protocols prevent these kinds of incidents, contact one of our Employment Law/HR specialists for FREE, same-day assistance on 01455 858 132.

Reason for tribunal finding of unfair dismissal

Consequences for your business

Croner’s risk prevention processes

Identify the risk factors

Implement strategy

Legal disclaimer

Reach out to an expert

Case background

The case involved a former employee, a UK Field Sales Manager, and the Respondent’s Senior HR Business Partner. The Claimant was suspected of refusing to work in the field, a contractual requirement. Whilst he explained he had purchased a vehicle to comply, concerns arose over his expenses and travel patterns, which suggested insufficient field activity.

The employer believed the Claimant was not performing his duties properly, leading to a meeting where he was accused of gross misconduct, including dishonesty and failure to fulfil role requirements. He was summarily dismissed on 2 August 2022.

The Claimant appealed, asserting procedural unfairness and discrimination. During the appeal, the dismissal decision was revoked due to procedural failures, and further investigation was planned, leading to his suspension. The investigation was led by the Senior HR Business Partner. The disciplinary hearing was chaired by another HR manager, with the Senior HR Business Partner presenting the case. The Claimant challenged the evidence, particularly regarding fuel expenses and activity logs, and provided evidence of his activities, including remote work from Egypt.

Reason for tribunal finding of unfair dismissal

The Employment Tribunal found the dismissal to be procedurally unfair, primarily due to a flawed and arguably predetermined disciplinary process. Key issues included the absence of a formal investigation report, bad evidence handling, and a decision-maker (the second HR manager) who lacked experience and may have been “unduly influenced”. These procedural missteps meant the employer did not meet the standard of a reasonable misconduct investigation and fair process, which is required by UK employment law.

However, the employer's actions, such as revoking the initial dismissal during the appeal due to identified procedural errors and planning further investigations thereafter demonstrated an attempt to rectify mistakes. This, coupled with the tribunal's assessment that there was a 50% chance the Claimant would have been dismissed even with a fair and compliant misconduct process, led to a 25% reduction in the Claimant's compensation.

This outcome highlights that, whilst the process was unfair, the employer's partial efforts and the Claimant's own misconduct prevented a more financially damaging outcome. This underscores the critical role of professional HR in navigating complex disciplinary situations.

Consequences for your business

This case serves as a reminder that even when an employer has legitimate concerns about an employee's conduct and attempts to follow a process to rectify the situation, procedural missteps can still lead to an unfair dismissal finding. Whilst the employer had managed to mitigate the financial penalty somewhat, due to their partial efforts and the tribunal's assessment of the Claimant's inherent misconduct, the case still resulted in a finding of unfair dismissal. This demonstrates that without truly professional and legally sound HR guidance, businesses risk:

• Significant financial penalties.
• Reputational damage.
• Internal disruption.
• Loss of control.

Professional HR is not just about avoiding claims, but about ensuring that when issues arise, they are handled in a way that protects your business and its employees.

Croner’s risk prevention processes

Under the Employment Rights Act 1996 and the ACAS Code of Practice on Disciplinary and Grievance Procedures, all UK employers must ensure that dismissals are both substantively fair (a fair reason for dismissal) and procedurally fair (a fair process was followed). This case clearly demonstrates that even with a potentially fair reason for dismissal (the Claimant's conduct), a flawed process can render the dismissal unfair.

If this business was a Croner partner, our team of specialists would have provided the professional HR guidance necessary to navigate this complex situation, ensuring the process was robust from the outset. This would have avoided the pitfalls that led to the unfair dismissal finding.

Our approach would focus on the following:

Identifying the risk factors

Our initial assessment would identify the specific procedural weaknesses that ultimately led to the unfair dismissal finding, such as:

• Lack of a formal Investigation report: A critical omission that undermines the fairness and transparency of the process.
• Inexperienced decision-makers: Ensuring that individuals chairing hearings possess the necessary training and impartiality to make sound, unbiased decisions.
• Weak evidence handling: Scrutinising the reliability and presentation of evidence (e.g., fuel card data, activity logs) to ensure it stands up to challenges.
• Potential for predetermined outcomes: Implementing checks to prevent the disciplinary process from being influenced by prior assumptions or management pressure.

Implementing a strategy

Based on these findings, we would implement a comprehensive strategy to ensure a legally compliant and defensible disciplinary process, thereby protecting the business from an unfair dismissal finding as much as possible, as well as the associated costs/fines and reputational damage.

This would include:

• Mandatory investigation reports: Guiding investigators to produce detailed reports that summarise findings, evidence, and witness statements.
• Training for decision-makers: Providing specific training for managers involved in disciplinary hearings on procedural fairness, evidence evaluation, and decision-making without bias.
• Robust evidence validation: Advising on how to properly gather, verify, and present evidence, including addressing discrepancies and ensuring the Claimant has a full opportunity to respond to and challenge findings.
• Clear procedural steps: Ensuring every step of the ACAS Code of Practice is meticulously followed.
• Independent appeal process: Structuring the appeal to be a genuine review by a senior, impartial individual not involved in the original decision, as the employer “attempted” to do here, but with more rigour.

By proactively addressing these areas with professional HR expertise, the employer could have conducted a process that was not only fair but also legally defensible, potentially avoiding the unfair dismissal finding altogether.

Legal disclaimer

The information provided above is for informational purposes only and does not constitute legal advice. It is imperative that you consult with a qualified professional or legal advisor to ensure that your organisation adheres to all relevant laws and best practices. Always prioritise fair and compliant employment practices.

Reach out to an expert

This case highlights that, whilst the employer's partial efforts helped mitigate the financial penalty, the finding of unfair dismissal could have been avoided with truly professional HR guidance from the outset.

If you run a business and you are unsure whether your disciplinary processes are truly fair and legally defensible, give one of our Employment Law/HR specialists a call today for FREE, same-day advisory. We’ll help you to ensure you avoid tribunal claims and reputational damage.

Call 01455 858 132.