Case Update: Unfair Dismissal … the importance of having a policy & following a suitable process

Posted on: January 25th, 2022

An employer’s decision to dismiss a cleaner who went to work with Covid-19 was deemed to be unfair by the Employment Tribunal because the employer failed to follow a fair and reasonable process.

The brief details were that the cleaner had been tested for Covid-19 on the way to work and subsequently, more than 24-hours later, received his test results which were positive.  The employer, who contracted cleaners to a large supermarket, dismissed the cleaner for gross misconduct in their haste not to lose the cleaning contract. They did not follow a reasonable investigation or follow a fair procedure when dismissing the cleaner.

Commenting on this case, Beth Hullah, Employment Solicitor at Coffin Mew said; “This ruling acts as a timely reminder that employers need to ensure they have proper policies in place and should follow a suitable process when dealing with disciplinary matters. It is also important to not act in haste, to obtain evidence and to challenge the evidence where necessary and ensure the employee is involved in the process.”

We provide further details of the case and the steps that you can take as an employer below.

The case in full

The case involved a cleaner, Mr Murphy, who was employed by Private and Industrial Cleaning Services and who at the relevant time was working on a cleaning contract at the Lidl store in Runcorn. The Lidl store had signs up throughout the store stating that if anyone had symptoms or thought they had Coronavirus they should not enter the premises.

On 6 January 2021 Mr Murphy, who is dyslexic and has autism, stopped at a Coronavirus testing site on his way to work. Mr Murphy said he did not have Coronavirus symptoms but decided to get tested as he was passing the site. He did not realise that the test he was taking was a PCR test that you should only take when you have symptoms or have been a close contact of someone who has recently tested positive. Mr Murphy was able to enter the testing site and take the test even through he was not symptomatic at the time.

The following day Mr Murphy attended work as normal. Once his shift was over, he received a text from NHS Track and Trace which stated that he had tested positive for Coronavirus and had to self-isolate for 10 days.

Mr Murphy reported the test result to his employers and the Manager of the Lidl store was also notified. The manager of the Lidl store was unhappy with the situation and Private and Industrial Cleaning Services were faced with the possibility of losing their contract with them.  The employer therefore held a meeting to discuss the situation and Mr Murphy’s continued employment but did not invite Mr Murphy.  A decision was then taken to dismiss Mr Murphy for Gross Misconduct and he was notified of this. In their haste not to lose the cleaning contract, the employer failed to carry out a reasonable investigation or follow a fair procedure when dismissing Mr Murphy.

In summary, the employer did not:

  • Carry out a fair investigation into the matter by interviewing all the colleagues Mr Murphy was working with in the store on the days in question;
  • Challenge contradictive witness evidence or consider how reliable this was (particularly after the employer had stated it trusted Mr Murphy).
  • Did not invite Mr Murphy to a disciplinary meeting to give him the opportunity to explain his version of events or to challenge the claims made by the manager of the Lidl store. Instead, a decision to dismiss was made without Mr Murphy being present;
  • Did not consider all of the evidence available as they were more concerned about losing the contract with Lidl which was in jeopardy as a result of the incident.
  • Took statements much later on after the event.

The Employment Tribunal therefore held that the dismissal was unfair, and that the employer did not have a fair reason or follow a fair procedure.

How to protect your organisation from unfair dismissal claims

As a reminder, any employees who have over 2 years’ service with your organisation have protection from ordinary unfair dismissal, i.e. the right for their employment to not be terminated unfairly by their employer. It is important to note that due to a legal technicality, employees also reach 2 years’ service one week before their anniversary and therefore this protection can extend to employees who have close to 2 years’ service. 

Where employees do not have 2 years’ service, it can be easier to terminate employment and to do so without following a detailed process. However, in some cases it may still be sensible to follow a disciplinary or dismissal procedure to avoid any risk of a breach of contract claim for wrongful dismissal and also to minimise discrimination, automatic unfair dismissal and/or whistleblowing claims.

To dismiss employees fairly, employers need to have a fair reason for the dismissal and also need to follow a fair procedure in dismissing the employee. Legally there are five reasons for dismissing someone that will be seen as fair by an Employment Tribunal. These include dismissing someone on the grounds of their conduct, their capability, a redundancy situation, something that prevents them legally from doing their job or for some other substantial reason.

Establishing a fair reason for the dismissal alone will not be enough for the dismissal to be considered to be ‘fair’. Therefore, once a fair reason for the dismissal has been identified, employers must ensure that a fair and proper process is also undertaken. The procedure you should follow will depend upon the reason you want to dismiss the employee, however in all cases a reasonable process must be followed, and you must adhere to the law and any policies you have in place to deal with that particular issue.

In cases where you want to dismiss an employee because they have committed misconduct, or potentially gross misconduct, you should ensure that you have a robust disciplinary policy in place which is followed when dealing with conduct issues. Broadly speaking this procedure should include you reasonably investigating the matter, inviting the employee to a disciplinary hearing to allow them the opportunity to put forward their side of the story, listening to what the employee says, considering the evidence available, considering the most appropriate outcome based on the seriousness of the misconduct and communicating this to the employee. The employee should also always be given the opportunity to appeal against any decision made.

It is also worth noting that unless an employee’s employment is being terminated on the grounds of gross misconduct, you should ensure the employee is provided with the correct notice, or payment in lieu of this notice, permitted by their contract. Failure to do so could potentially result in a claim for wrongful dismissal.

If you have any queries regarding dismissals or problematic employees within your organisation, or if you would like us to review your policies to ensure they are legally compliant and robust, please do get in touch with our Employment Team. We would be more than happy to assist you.