The claimant was employed in the respondent’s nightclubs initially as a bartender before being promoted to an assistant manager.  The issue arose from the use of social media whereby there was a ‘Facebook Messenger’ chat with the employees and ex-employees of one of the nightclubs run by the respondents.

The first that this came to light in an investigatory sense was an all staff meeting where the claimant and three other managers were removed from this meeting in front of all other staff to have a separate meeting with the HR Officer and the CEO of the respondent.   There was no prior notice of this investigation and no notes were taken from the investigation meeting.   At this meeting, the claimant revealed the details of the Facebook Messenger chat in which they had written about how drugs had been sniffed and that she was going to ‘rack a line up now’ which was related to cocaine use.  The claimant argued that this was merely banter and that she was not a drug user.

The claimant was suspended at that initial investigation and given a letter inviting her to a disciplinary meeting the next day where dismissal could be possible as a result of ‘possession, supply and use of illegal drugs’.  This letter stated it enclosed photographic evidence of the messages but this was found to be false.

After the suspension, the Chief Executive Officer carried out a presentation to an all-staff meeting entitled ‘hugs not drugs’ and had shown photographs of the messenger chat with faces anonymised but not the names.

In the subsequent disciplinary meeting, the claimant was informed by the HR Officer that the decision had been taken to dismiss the claimant.  The HR Officer stated it was her decision alone, yet the minutes suggested the CEO said he wanted the claimant to reflect on her position and reputation.   No dismissal letter was sent and the claimant was not informed of her right of appeal.  The reason for this was an alleged software malfunction.  The claimant did seek an appeal on her own volition and this was granted.   The appeal was conducted by the CEO who upheld the decision to dismiss but amended the reason to gross misconduct leading to a breach of trust and confidence.

The Tribunal held that whilst there was a legitimate reason for the dismissal there was a failure procedurally to comply with the ACAS Code.  This was due to the fact the CEO was involved in both the investigation stage and the appeal and the HR Officer was involved in the investigation and the disciplinary stage.  The respondent also failed to follow its own disciplinary policy where the CEO or HR Officer was only supposed to deal with the appeals and not the initial disciplinary meeting.  There was also insufficient time to prepare for the disciplinary meeting and a lack of confidentiality was afforded to the claimant.

In providing a remedy, the Tribunal found that it was likely that the claimant would have been dismissed if the proper procedure had been followed.  For that reason, a 75% Polkey reduction was ordered.  That being said, the fact the ACAS Code was not followed led to a 25% uplift in the award that would be made.   In terms of the claimant’s conduct, the Tribunal found that she was aware that the extent of the Facebook Messenger chat was wrong to the extent she agreed that it should have been deleted and that she had been naïve.  For that reason, the Tribunal held that it was fair and equitable to make a 25% deduction to the award by reason of her contributory conduct.

Practical Lessons

This case serves to demonstrate the importance of ensuring that the correct procedure is followed in a dismissal.  The procedure in this case was replete with mistakes about who should conduct investigation, disciplinary meetings and appeals.  However, there were also problems relating to the time given to prepare, providing the proper letters and confidentiality.

The Tribunal made a significant Polkey reduction due to the likelihood that the claimant would have been fairly dismissed had the procedure been followed and the contributory deduction due to the conduct of the claimant.

This was set-off by the uplift in the compensation as a result of the procedure not being followed correctly.   Therefore, whilst Polkey and contributory deductions may limit the damage, the damage could be completely avoided by ensuring the correct procedure is followed at all times.  Readers are reminded that the ACAS Code of Practice does not apply in Northern Ireland and instead when contemplating dismissal employers must follow the Statutory Dismissal Procedure and good practice guidance set out in the Labour Relations Agency Code of Practice on Discipline and Grievance.

https://www.gov.uk/employment-tribunal-decisions/ms-h-taylor-davies-v-creative-hospitality-payroll-ltd-1601699-2018