Lack of impartiality resulted in an unfair dismissal

A drainage manager who swore at his boss when he discovered colleagues had been using his email account while he was isolating was unfairly dismissed, a tribunal has ruled.

The tribunal found that the employer relied completely on an external HR consultant’s report when investigating the case, and that the Managing Director’s decision to dismiss was “deliberately moulded to fit a predetermined outcome”.

The employee in question had to isolate as a result of Covid and during his absence he gave his computer password to another manager so he could add an out of office message to his account and postpone any client meetings. The tribunal heard that this manager and another manager logged into the employee’s computer to complete client reports and forwarded others to their own accounts. This was done with the knowledge of the Managing Director.

When the employee returned to work, he became aware that emails had been sent from his account which resulted in a “verbal altercation” between the employee and the Managing Director. Both swearing at each other and the exchange was extremely heated and aggressive, making threatening comments towards each other. The MD dismissed the employee “in the heat of the moment”, but later withdrew the dismissal and lowered it to a suspension pending investigation.

A subsequent investigation concluded that a disciplinary hearing should be scheduled for “gross insubordination and threatening behaviour”. It recommended a final written warning but added that the working relationship was not salvageable and there had been a material breach of trust and confidence, a dismissal was “likely to fall within the band of reasonable responses”.

The employer subsequently dismissed the employee for gross misconduct.

The tribunal found that the dismissal was “predetermined” and that it was essentially decided during the altercation and that following the hearing was deliberately moulded to fit a predetermined outcome. The tribunal reduced the award by 40% for contributory fault, which reflected the “significance” of the employee’s behaviour without “penalising him unduly”. He was awarded £2,376.72.

Whilst there was clearly fault on the part of the employee in this case, it demonstrates the importance of being impartial in finding the outcome of a hearing – regardless of the question of “blame”.

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