A Christmas Case Study
Posted on 12th December 2023 at 14:01
Our client was facing dismissal after almost 40 years in his role with an unblemished record. He was accused of sexual harassment following Secret Santa, where he had given a female colleague a present of inappropriately shaped biscuits and jelly babies with more detailed anatomy than normal. The employer also stated performance concerns. Following a disciplinary hearing, our client was dismissed based on the “cumulative outcome” of both written warnings.
On the surface, this seems potentially reasonable. However, the employer had not previously informed our client of any performance issues. The correspondence stated that he was putting the company at risk of reputational and financial loss but gave no explanation as to how.
When we spoke to our client to gather more information, he explained that his gift had been based on the culture of the firm and the type of gifts previously exchanged. He listed gifts that other members of staff had exchanged, which made his gift seem polite and professional in comparison. Even the member of staff managing the disciplinary hearing had said she intended to buy her present from Ann Summers. Still, our client was mortified at the idea he had upset his colleague and apologised immediately, clarifying that he had not intended to make her uncomfortable or cross any boundaries.
Our client also disputed the allegations of poor performance and questioned why, if the issues were genuine, they were not raised until the same day his colleague had made a complaint. He pointed to the fact that he managed many of the more complex issues his team dealt with.
We contacted the employer to set out several errors in their process. They had not followed their own performance management policy or given a principal reason for dismissal. The employer seemed to have made their mind up from the outset, skipping the investigation stage and going straight to a disciplinary hearing. They had not even spoken to the gift recipient in more detail about how she felt. She had said she was “utterly horrified,” and the employer had assumed feelings of harassment.
Dismissing our client as a ‘cumulative outcome’ of two warnings, given at the same time, suggested that the company felt neither was gross misconduct warranting dismissal. The warnings were ineffective as our client was not given a chance to improve his alleged poor performance and conduct.
We outlined the potential claims our client might have and that he was willing to discuss settling outside of the tribunal. However, the employer did not respond. We then contacted ACAS to begin formal proceedings, which prompted a response from the employer. They were willing to settle but their original offer was not in-line with his seniority and unblemished record. We negotiated with the employer on his behalf and advised him about the potential cost of taking a claim to the tribunal. Ultimately, we secured a 60% increase in the settlement offer, which our client was happy to take. Having already secured another role, our client felt it was better to make a fresh start and settle early, rather than risk the cost of a tribunal claim.
This is a festive reminder about the importance of keeping an open mind when investigating potential misconduct. The cases that seem the most clear-cut are the ones that can easily lead to tribunal claims because they encourage complacency. It also shows the importance of setting standards in your handbook, and how vital your policies can be to the outcome of disputes.
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