Employers must ensure that the “punishment fits the crime” when considering disciplinary sanctions

A reminder of some of the basics when considering disciplinary sanctions

When a disciplinary officer has heard all the evidence at a disciplinary hearing, they must decide whether it is appropriate to impose a disciplinary sanction. This could be anything from a first written warning to dismissal without notice. When considering dismissal there are five potentially fair reasons. These are conduct, capability, redundancy, a legal reason and ‘some other substantial reason’. This article focuses on conduct dismissals.

To ensure a dismissal for misconduct is fair and reasonable an employer must be able to show that:

1. they followed a fair procedure before deciding to dismiss, this includes complying with the ACAS Code of Practice on disciplinary and grievance procedures and if they have one, their own disciplinary procedure;
2. they had a reasonable belief that the employee was guilty of misconduct; the employer does not have to prove the employee actually committed the misconduct, but that it was reasonable to consider the employee was guilty based on the evidence before them; and
3. it was reasonable to dismiss in all the circumstances.

In considering the above a tribunal will consider whether the investigation and the dismissal was within the ‘range of reasonable responses’ that a reasonable employer, in those circumstances and in that business might have taken.

Facts

The recent Irish case of Arkadiusz Grzyb v Lidl Ireland Gmbh is a clear example of when a disciplinary sanction is not a reasonable response to the misconduct.

In this case, Lidl found the employee guilty of gross misconduct. The employee, a deputy store manager had twice removed bakery items at the end of the day and applied the company’s ‘waste not’ policy. This policy involved poultry and meat products being discounted at their best before date. The employee believed the same policy could be applied to bakery items and allowed himself and his staff to buy the goods at a significantly discounted rate. In mitigation, the employee told the hearing that he adopted a common practice operated in other Lidl stores that he had worked in.

Even though the employer had concerns about the employee’s position of authority and perceived that the employee manipulated the ‘waste not’ policy to steal bakery goods, the Workplace Relations Commission – the Irish equivalent of the Employment Tribunal of England and Wales – found the dismissal was unfair as it did not come within the ‘band of reasonable responses’.

It was specifically noted that:

1. the investigation into the employee’s conduct was pre-determined;
2. two employees interviewed during the investigation were also unclear on the application of the ‘waste not’ policy to bakery goods;
3. account was not taken of the low value of the goods;
4. the employee was not invited to make any representations in respect of mitigation;
5. the employee was not informed he was accused of theft during the investigation;
6. the employee’s almost 10 years of good service had been overlooked; and
7. no alternative to dismissal had been considered although there were other sanctions available.

Although the case was determined in Ireland the same principles were applied as those considered in the Employment Tribunals of England and Wales.

Comment

This case is a clear reminder of why employers should be cautious of jumping straight to dismissal for misconduct that would, without context be considered gross misconduct (theft).

To ensure a dismissal falls within the ‘range of reasonable responses’ in addition to carrying out a reasonable investigation, an employer should be able to demonstrate that they have considered all of the below points.

1. The seriousness of the alleged misconduct and whether any disciplinary procedure gives guidance.
2. The employee’s disciplinary record. Are there live warnings against the employee for misconduct?
3.  Any mitigation regarding the employee’s conduct. This includes whether the employee was provoked or acted under stress or duress, the effects of any ill health or disability and whether the employee admitted the misconduct and showed remorse.
4. The length of service of the employee.
5. Alternatives to dismissal such as redeployment, disciplinary suspension without pay, demotion or loss of bonus. A rationale as to why dismissal is reasonable in place of lesser sanctions should be formulated with reference to the size and resources of the employer.
6. What sanctions have been applied to similar acts of misconduct.