UNFAIR DISMISSAL - 02.07.2020

Unfairly dismissed for calling bosses “twit and twat”

An employee who was dismissed for referring to his bosses as “twit and twat” in a text to a client has won his tribunal claim for unfair dismissal. The employer involved made a fatal error. What was it and how could it have been avoided?

Facts of the case

Mr Boulter (B) had been employed by Robert Pochen Ltd as a sales rep. In 2018 the company had a reshuffle and B was then required to report to Mr Trickett (T) and Mr Skeemer (S). B was unhappy about this change, particularly the appointment of S. It was no secret that the three men had a strained relationship.

Texting a client

In February 2019 S and another manager went to visit a client. Whilst they were there, B sent a text message to his contact at that client. It said: “Are twit and twat still there or have they gone?” . S was made aware of this text by the client. On 27 February 2019 an investigatory meeting was conducted by Mr Froggatt (F), the company’s commercial director.

Investigatory matter

For some reason, which was never explained to the tribunal, T was also present at the investigatory meeting (he should not have been there). As well as challenging B about his general attitude, F asked why he had sent the text. Initially, B said it was a “private conversation”. When it was pointed out that he’d used a work mobile B said that it was not malicious and a “big mistake” .

Disciplinary hearing

At the end of the investigatory meeting, B was suspended on full pay. A disciplinary hearing was arranged for 6 March 2020 and F was appointed as the chair of the disciplinary hearing. Likewise, T also attended as notetaker.

Gross misconduct

At the end of the disciplinary hearing, B was summarily dismissed for gross misconduct. He exercised his right of appeal, but the dismissal decision was upheld. He then claimed unfair dismissal at the tribunal (see The next step ).

The tribunal concluded that the employer had a genuine and reasonable belief that B was guilty of misconduct but it had made a fatal error: F had conducted both the investigatory meeting and the disciplinary hearing.

Unacceptable chair

The tribunal noted that the company had other directors available so F’s involvement in both stages rendered B’s dismissal procedurally unfair. The tribunal also noted that T should not have been present at both stages either as he and B were known to have a strained relationship. This cast doubt over his impartiality.

Tip 1. Unless you have no other option, different people should investigate disciplinary allegations and chair any required disciplinary hearing. Ideally, a different person who’s had no involvement whatsoever should hear any appeal too as this will show that it’s a truly independent process.

Tip 2. In this case, the employer tried to argue that F had heard both stages to “keep matters as confidential as possible” . This didn’t wash with the tribunal so don’t be tempted to try it.

The same director conducted the disciplinary investigation and hearing. This rendered the employer’s dismissal procedurally unfair. Don’t appoint the same person to hear both of these stages, not even to protect the employee’s confidentiality. Ideally, an entirely impartial person should be appointed to hear any appeal too.

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