Case 1

Student ID # 0971115/1

Case 1: Alison and Bernard Alison and Bernard are employed as full-time stores persons in the warehouse in which the finished goods are stored. Alison has been with the company since it first started trading nearly 10 years ago. Bernard used to work for the company (for about a year), but left about 10 months ago due to being unwell. He re-applied to the company 8 months ago and his current period of employment is eight months. Both are recognised as very competent employees and have no previous disciplinary record. In early August 2011 the company discovered stock discrepancies. As a result of this the companys security officer was asked on the 15th August to carry out an investigation into the possible cause. Having maintained close surveillance of the warehouse over a period of two weeks, the security officer reported that, in his view, either Alison or Bernard, or both of them, had been pilfering stock, his report stated that he had not seen either member of staff, or any others, acting suspiciously. However he gave the following reasons for forming this opinion were 1) the fact that the two employees were often left alone in the warehouse for long periods and 2) he had had an anonymous tip-off that both Alison and Bernard had recently purchased new cars. The warehouse manager, Edward, received this report from the security officer on Friday 2nd September 2011. The next working day (Monday 5th September) he called Alison and Bernard into his office, put the security officers allegations to them, and explained that the company would be conducting a formal disciplinary hearing in a weeks time (on Monday 12th September). He advised them that they had the right to be represented at that hearing. Both employees were then suspended until the hearing on full pay. Some days later (on Thursday 15th September) Alison and Bernard both received a letter sent second class post, which confirmed the suspension, the date and time of the disciplinary meeting and their right to be accompanied. In addition a written statement of the case against them was provided. At the initial meeting with Edward, (on Friday 2nd), both Alison and Bernard had rejected the allegations in their entirety. Disciplinary Hearing The disciplinary hearings followed as planned on the 12th September. Two separate meetings were held (one with Alison and one with Bernard) and both were represented by the MSF local union representative. The company was represented by the Warehouse Manager, Edward, who was accompanied by the HR Manager, with the security officer called as a witness.

Case 1

Student ID # 0971115/1

Both meetings lasted about an hour and both employees continued to deny the allegations throughout. Both meetings were adjourned to allow the company to consider what had been said. Alison and Bernard were told that the company would consider all the facts and write to them with their decision. Management concluded that on balance they were justified in holding the view that the two of them were guilty of the alleged gross misconduct. Both employees were written to the following day and the companys decision was confirmed to them. It was confirmed that they were being immediately dismissed without notice on the grounds of gross misconduct. The effective date of termination was stated as 12th September 2011. The company also decided to inform the police of the incident and contacted them on 13th September. Three days later Alison and Bernard appealed against their dismissal (through their union representative), under the companys disciplinary procedure. The procedure stated that an appeal should be lodged with the immediate line manager. The request was rejected by Edward on the grounds that he had called in the police and it was a matter for them now. Criminal trial Alison and Bernard were both subsequently charged with theft and released on bail pending their court appearance. On 16th November 2011 both were informed by the police that they were dropping the charges because of insufficient evidence. Their solicitor had argued that the apparent stock shortage could have been due to an accounting error in the finance department of the company, and the public prosecutor acting for the police confirmed that they now believed that the stock shortage could well have been caused by an accounting error and that there was no evidence that either Alison or Bernard had taken any stock. Employment Tribunal Claim Bernard decided to lodge an unfair dismissal claim with the employment tribunal and he completed his claim form online on 23rd November 2011. Alison, on the other hand, wanted first to consult her unions full-time officer, and was initially advised by him to wait for the outcome of the criminal proceedings. However, by the time the criminal case was dropped, she had already started a new job, unfortunately her new employer found out about the allegations at the beginning of December, and dismissed her on the 9th December. She therefore completed her ET1 on12th December directly online.

The ET1 (and ET3 employers response form) for Bernard was received by Meridian on 29 th November. The ET1 for Alison has not yet been received, but a friend of Alisons who still works for Meridian has told the HR Manager that Alison has told her that she had submitted her claim on the 12 th December to the Employment Tribunal. Both Alison and Bernard are claiming unfair and wrongful dismissal. The company has not yet completed and returned the ET3 form for Bernards claim.

Case 1 Case 1 Introduction

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Meridian Manufacturing Company has accused two full time store employees, Alison and Bernard of gross misconduct after discovering stock discrepancies. Both employees have been recognised to have no previous disciplinary record. Alison has been with the company nearly 10 years and Bernard 8 months. Over a period of two weeks an investigation had been carried out by the companys security officer, where he reported that both had been pilfering stock, he also reported to the warehouse manager that he had not actually seen either member of staff acting suspiciously, his reasoning for forming this opinion were based on assumption and not actual evidence . The allegations made against Alison and Bernard were explained to them and they were informed that the company would be conducting a formal disciplinary hearing, which led to the immediate dismissal of both employees, the case was then taken to the criminal court where the charges were dropped due to insufficient evidence. Alison then filed for unfair dismissal and Bernard filed for wrongful dismissal.

Case 1 Unfair Dismissal

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It is stated in Section 94 of the employment rights act 1996 states that an employee has the right not to be unfairly dismissed by his employer. Unfairly dismissed is where your employer terminates your contract of employment, with or without notice. In order to qualify to bring a claim for unfair dismissal under the legislation the following requirements must be met Time Limit - The time limit for beginning a claim for unfair dismissal is 3 months from the date of the dismissal Service - Normally you must have at least 12 months' continuous service with your employer in order to bring a claim for unfair dismissal. Employment status - You must be an employee, working under a contract of service. The fact of dismissal - You must have been dismissed in order to bring a claim.

Wrongful Dismissal Wrongful Dismissal occurs when the employer terminates the contract of employment, and in doing so breaches the contract of employment. In reference to the case: where dismissal is in breach of a contractual disciplinary procedure. Six potentially fair reasons for dismissal as stated in section 98 of the employment rights act 1996, as amended by the employment equality (age) regulations 2006, are: Capability or qualifications Conduct Redundancy Statutory ban Some other substantial reason Retirement

Any dismissal in breach of contract can potentially amount to a wrongful dismissal and can entitle the employee concerned to claim for damages. Under Employment Rights Act 1996 all employees over 1 mths continuous service have a right to minimum periods of notice when their contracts are terminated. The only exception applies when they have committed an act of gross misconduct which justifies Summary dismissal. Dismissing people without giving the required notice (providing there is no justification by way of gross misconduct) is a breach of contract and a wrongful dismissal.

Case 1

Student ID # 0971115/1

Gross misconduct, which can result in summary dismissal (dismissal without notice) may include theft, assault, vandalism, and falsification of records. A dismissal for misconduct is potentially fair, but the employer must show that it has acted reasonably in reaching the decision to dismiss. Alison has been employed with the company for ten years continuous service (unfair dismissal) and Bernard has been employed for 8 months continuous service (wrongful dismissal). Both employees were full time stores person in the warehouse. Bernard submitted his claim with the employment tribunal online on 23rd Nov. Alison summated her claim (ET1) on 12th Dec directly online which was delivered immediately making it exactly 3 months upon date of dismissal.

Case 1 Analysis of legal positions

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Both Bernard and Alison were renowned as very competent employees with no disciplinary records In British Home Stores Ltd v Burchell [1978] IRLR 379. It was stated that tribunals had to decide whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee at the time. There are three elements to this: o o o The employer must establish the fact of that belief. The employer must show that there were reasonable grounds upon which to sustain that belief At the stage at which the belief was formed the employer must have carried out as much investigation into the matter as was reasonable in the circumstances
th

Lewis, Sargeant and Schwab et al (2011) Employment Law: The Essentials (11 Edition) CIPD House p244.

In the case of Alison and Bernard when the company discovered stock discrepancies the security officer was asked to keep a close surveillance of the warehouse over a two week period where he then reported, in his view he believed that Alison and/or Bernard had been pilfering stock, forming this opinion based on the fact that the two employees were often left alone in the warehouse for long periods and he received an anonymous tip off that both employees had recently purchased new cars. The warehouse manager then followed the ACAS guide on disciplinary and grievance procedures 2009, stated below: According to appendix 4 of the ACAS guide on disciplinary and grievance procedures 2009 states that: When drawing up and applying procedures, employers should always bear in mind the requirements of natural justice. Employees should be informed of the allegations against them, together with the supporting evidence in writing, in advance of the meeting. Employees should be given the opportunity to challenge the allegations before decisions are reached and should be provided with a right to appeal. As stated in the case study the employees had been dismissed on grounds of gross misconduct and the company followed the disciplinary procedure rationally by informing the employees of the security officers allegations to her and explained that a formal disciplinary hearing would be conducted, they were advised that they had right to be represented at the hearing, the employees were then suspended until the hearing on full pay, they both received a letter which confirmed the suspension and the date and time of the disciplinary meeting and there right to be accompanied, in addition a written statement. of the case against them was provided . However there right to appeal against their dismissal was rejected, breaching the companys policy. Instead the line managed contacted the police and both employees were charged with theft, they were then both informed by the police that the charges were being dropped due to insufficient evidence; it was found by their solicitor that the apparent stock shortage could have been due to an accounting error. Giving both employees the right to file for unfair and wrongful dismissal.

Case 1 Recommendations:

Student ID # 0971115/1

Based on the analysis of the legal position it is recommended that they settle out of court due to the fact that both employees have a stronger legal position. Alison can be offered Re-reinstatement, Re engagement or Compensation and a letter stating that her dismissal was unfair as the dismissal is damaging to her reputation. Given that orders of reinstatement or re-engagement are made in fewer than 5% of cases, this means that the remedy for unfair dismissal is mostly compensation. This can be divided into basic, compensatory and additional award. Bernard however can be offered compensation only amounting to the wages he lost resulting from the dismissal and also a letter stating that the dismissal was unfair. In order to prevent similar situations from happening it is recommended that the company should have included higher management in the investigation process as stated in the ACAS Code of practice, ensure that the investigative procedure produced sufficient evidence, include HR Management in the process, double check the accounting system for inventory and ensure that manage follow the companys procedures and as such the manager should be disciplined for failure to comply.

Case 1 Conclusion

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Based on the facts of the case the employer essentially should not have relied on facts and focused on finding evidence by conducting a proper investigation to prevent the unfair and wrongful dismissal of two employees due to gross misconduct, had the employees been given the chance to appeal there dismissal the case may not have reached the criminal court, where the employees were released due to lack of evidence. In the future the company should ensure that HR management should have been involved in the dismissal process and the ACAS Code of practice followed correctly.

Case 1 Reference Books

Student ID # 0971115/1

Daniels, Kathy, 2008. Employment Law: An introduction for HR and Business students. 2nd ed. UK: CIPD. Holmes, Ann, E.M. and Painter, Richard.W., 1988. Swot: Employment Law. London: Blackstone Press Limited. Lockton, Deborah, J. 2003. Employment Law. 4th ed. New York: Palgrave Macmillan. Lewis, David, Sargeant, Malcolm, and Schwab, Ben., 2011. Employment Law: The Essentials. Malta: Gutenberg Press Ltd.
Websites . 2011. . [ONLINE] Available at: http://www.acas.org.uk/media/pdf/9/5/CP01_1.pdf. [Accessed 13 December 2011].