Complete failure at investigation stage leads to unfair dismissal award
An employment tribunal has recently made an award of £17,339 for unfair dismissal to a supervisor who sent “I’m going to tickle you till you pee” message to 17 year old female colleague.
This ruling by a Scottish tribunal yet again highlights the need for a thorough and fair process at when dealing with disciplinary and grievance issues. Judge McFatridge found that managers had carried out a flawed investigation and that the disciplinary process had been tainted by decisions and value judgements made before the meetings.
Neither party was named at the tribunal hearing. The unfair dismissal claim was brought by a man referred to as S who had worked for Tesco for 10 years at the time of his dismissal in April 2018. A grievance was raised by a 17 year old female employee (referred to as E) whom S would have been her first point of contact with store management.
Over a period of months, E had become uncomfortable in his presence. He had begun to wait up to an hour after his finishing time to offer E lifts to the car park for instance when she finished work and S leaned over / stood close to her when answering queries at the till. During her employment, the individuals concerned had become friends on Facebook, which S used to send messages which she felt were inappropriate including:
· “I’m going to tickle you till you pee”
· “You’re definitely overdue a tickle”
· “You’ve got 3 days to get your sweet ass to the doctor’s” when she was feeling unwell
These incidents happened over a period from around Christmas 2017 to April 2018 at which time E made a misconduct allegation to S’s team leader. S was suspended for an investigation to take place, following which he was dismissed for gross misconduct. This decision was upheld by management following an appeal.
Judge McFatridge ruled in favour of unfair dismissal because there had been “a complete failure” by three managers to attempt to investigate points raised by S during the disciplinary process. The judge said they didn’t approach the hearing with an open mind and one manager held a belief that S was “some sort of sexual predator”.
Lynn Bradley, Director of Pennine Business Partners, says “there are two sides (sometimes more) to every story so it is essential that managers keep this front of mind when dealing with disciplinary and grievance issues. If a thorough and objective investigation is not carried out, process will be flawed and can leave the business open to claims of unfairness or discrimination.”
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