Dismissal for Admitted Misconduct was Victimisation


3 mins

Posted on 11 Sep 2013

An employee ostensibly dismissed for knowingly using non-kosher jam to make cakes at a kosher bakery was unfairly dismissed and victimised.

In Carmelli Bakeries Ltd v Benali, the employer operated a kosher bakery. After a till receipt was discovered for two jars of jam purchased from Tesco (which does not sell kosher jam), the employer investigated. The investigation took no more than an hour. Two witnesses implicated B but B himself was not interviewed. At a disciplinary hearing a week later, B claimed his boss had told him to send the cleaner to buy jam. He denied telling the cleaner to go to Tesco but admitted he used the jam knowing it was not kosher. B was dismissed without his defence being investigated any further and his appeal failed. 

He claimed unfair dismissal and victmisation, arguing that the real reason for dismissal was not his misconduct but the fact that he had previously brought a disability discrimination claim and continued to request adjustments. The tribunal upheld his claims. It considered that the discrimination claim and on-going requests for adjustments had led the employer to regard B as a problem employee and had resulted in it not being prepared to show leniency in relation to the jam incident. The dismissal was also unfair as the employer had not conducted a proper disciplinary investigation and had not taken B’s long-standing clean disciplinary record into account. 

On appeal, the employer argued that the tribunal decision to attribute a motive for dismissal other than misconduct was perverse. Once B admitted to knowingly using non-kosher products, which could seriously prejudice its business, dismissal was inevitable and there was no basis for a finding that B should have been shown leniency. It also argued that an employer is not obliged to carry out an investigation where an employee has admitted misconduct. 

The EAT disagreed. The tribunal had been entitled to find that although the employee was guilty of gross misconduct entitling the employer to dismiss, the principal or operative reason for the dismissal was that he was regarded as a problem employee due to his earlier and on-going requests for adjustments. Had it not been for this, the employer would have carried out a more thorough investigation and may as a result have imposed a more lenient penalty.

The EAT also disagreed that an employer is not obliged to investigate where an employee has admitted gross misconduct. B’s defence was that it was the cleaner who had decided to buy non-kosher jam and had lied and blamed B to save his own job. B had also claimed he did not question the use of non-kosher jam as he was used to being told by management to use non-kosher products when there was a shortage. In these circumstances, it could not be said there was nothing further to investigate and a proper investigation should have been carried out.

Employers dealing with employees who have raised discrimination complaints need to be alert to the risk of victimisation claims and take extra care to ensure that they follow proper procedures before deciding on disciplinary action. The employer’s failure to investigate the alleged misconduct in this case led the tribunal to decide that the misconduct was simply a pretext for getting rid of a problem employee.

Whilst it is usually reasonable for an employer to take an employee’s admission of misconduct at face value without further investigation, this case shows that this will not be the case where there are doubts over the true reason for dismissal.

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