Background:

The claimant was employed by the respondent as a recycling operative.  Her employment started in September 2004 and was brought to an end with dismissal in August 2020.

A complaint was made in July 2020 by a supervisor (but not the claimant’s line manager) that the claimant had been publicly shouting abusive comments at the supervisor. The comments were made in Lithuanian and it was alleged the claimant shouted the supervisor was being ‘f*&%ed by Irish men and was a skinny bitch’. The supervisor indicated she felt intimidated, humiliated and upset by the comments.

The claimant was suspended and an investigation was carried out.   Two employees, again both Lithuanian, were interviewed through that process. They confirmed the allegation noted above.  The claimant stated that she was in the car park at the time but she did not make the alleged comments.  She did state that the supervisor had publicly stated that she was going to try and get the claimant dismissed.  The claimant further alleged the supervisor was threatening the witnesses in relation to their contracts unless they backed her up with their statements.  The respondent made it clear the supervisor had no influence over the witnesses contracts.

The case proceeded to a disciplinary hearing with the claimant being invited to the hearing on 5th August with the allegation of gross misconduct.  The disciplinary meeting was described by the Tribunal as ‘perfunctory’ with only a couple of pre-scripted questions but that was against the backdrop of uncomplicated allegations which were put to the claimant.  The claimant already had a live final written warning and as a result of the process the claimant was informed of her dismissal. She was dismissed without notice and without wages in lieu of notice.  The claimant appealed this internally but that was dismissed.  The claimant subsequently brought a claim for unfair dismissal.

Outcome:

The issue was the reasonableness of the decision of the respondent to dismiss.  Whilst the investigation and disciplinary process could be described as ‘basic’ it was also regarded as being prompt.  The Tribunal noted there was little room for ambiguity both in relation to the allegation and the probable truth of it.  Therefore, it was held by the Tribunal despite the perfunctory nature of the process, it fulfilled the statutory requirements. Based upon the allegations, the Tribunal concluded the respondent was justified and genuine in its view that it fell within the category of gross misconduct.  Accordingly, the claimant’s case was dismissed.

Practical Guidance for Employers:

This case provides another example of the application of the band of reasonableness test as it applies within dismissal cases.   The Tribunal found the respondent was genuine in its decision to dismiss on the grounds of gross misconduct.  Further, the Tribunal made a number of comments about the perfunctory and basic nature of the investigation and the disciplinary process.  Whilst these were criticisms of the process, it was not enough for the respondent to fall below the statutory requirements, especially bearing in mind the fairly unambiguous nature of the allegations.  Therefore, it would be advised a more thorough and expansive investigation and disciplinary process would be conducted in such a circumstance but it does not instantly lead to liability.