How adequately trained are your staff on your policies?
The Employment Tribunal (“ET”) in the case of Mrs M Cunnington v Sainsbury’s Supermarkets Limited, has considered whether the Claimant’s dismissal for gross misconduct was unfair both procedurally and substantively due to fundamental failings in the investigatory and disciplinary process.
The Claimant was employed by Sainsbury’s as price controller. The Claimant had 28 years’ continuous service without any disciplinary record and had received numerous awards and commendations during her employment. The Claimant had not received any equality and diversity training in at least 16 years from the date of the alleged racist incident that led to her dismissal.
The Claimant is alleged to have made a racist comment following the Black Lives Matter movement and the death of George Floyd on 11th June 2020, causing offence to the Complainant who overheard the conversation. The Complainant wished to raise a formal complaint about the incident under Sainsbury’s Fair Treatment Policy. The investigating officer at the time did not follow the Fair Treatment Policy or conduct sufficient fact-finding meetings in order to ascertain a clear view of the situation. The investigating officer suspended the Claimant pending investigation, she was then subjected to a disciplinary procedure and subsequently dismissed for gross misconduct.
The Claimant brought a claim to the ET for wrongful and unfair dismissal.
Section 94 of the Employment Rights Act 1996 (“ERA”) provides for the right for an employee not to be unfairly dismissed by their employer. An employer has to establish a potentially fair reason for dismissal under section 98(1) ERA and whether a dismissal is fair or unfair depends on whether the organisation acted reasonably or unreasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).
In determining whether a dismissal is fair, the Employment Tribunal will consider procedural fairness and whether a fair procedure was followed (i.e. the Acas Code of Practice) and whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal. This test applies to both the decision to dismiss and to the investigation which led to that decision. The Tribunal must assess substantive fairness having regard to well known principles established in case law, including satisfying the conditions of the Burchell Test.
A dismissal on the grounds of conduct, will only be fair if the following circumstances in the Burchell Test are met:
- At the time of dismissal, the employer believed the employee to be guilty of misconduct;
- At the time of dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct; and
- At the time that the employer formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.
The ET decided in favour of the Claimant, concluding that the dismissal was both substantively and procedurally unfair, the decision did not fall within the band of reasonable responses and did not satisfy the third limb of the Burchell Test with regards to the extent of investigations. The Judge commented that the “investigation procedure was inadequate” and the disciplinary procedure followed was “fatally flawed from the beginning.” The ET noted that the investigating officer was inexperienced, did not carry out any steps under the Fair Treatment Policy and omitted to discuss the options of both an informal and formal process with the Complainant. The ET did acknowledge that she was not entirely to blame, and it must lie with a “lack of adequate training.”
The ET commented that the investigating officer failed to complete a sufficient investigation to enable her to reach a decision on proper evidence to recommend the case proceed to a disciplinary hearing. The ET, moving onto the disciplinary process, concluded again that there were significant failings throughout the disciplinary hearing, including failing to provide the Claimant with all documentary evidence in advance. This breached not only the Respondent’s own disciplinary policy but also the Acas Code of Practice. Overall, the judge decided the decision to dismiss was not well founded and was unfair.
This decision highlights the importance of regular training for all staff, whether that be training to employees on equality and diversity or training to managers on dealing with complaints, disciplinaries and workplace disputes. The Judge noted that the employer’s conduct in these proceedings was ‘one of a lack of impartiality, a lack of understanding of the policies and the correct application of them.’