Perverse for judge to accept Veolia's inept dismissal process as fair

It was perverse for an employment judge to have characterised an employer's investigative and disciplinary process as "a catalogue of ineptitude and misjudgement" yet to have concluded that the resulting dismissal was nonetheless fair.

That was the decision of the Employment Appeal Tribunal (EAT) in a case involving Veolia ES (UK) Ltd.

The company had dismissed one of its employees, Ms Brown, for gross misconduct.

The judge at the Employment Tribunal described Veolia’s investigative and disciplinary process as "a catalogue of ineptitude and misjudgement".

He criticised the mismanagement of interview arrangements, failure to provide the employee with copies of the witness statements, failure to particularise the allegations against her, and phrasing questions to witnesses in a leading manner.

The judge was also critical of the failure to clarify matters with witnesses or put the employee's case to them, failure to make enquiries of individuals whose names the employee had provided, giving only nine days' notice of the disciplinary hearing, pursuing allegations in the absence of evidence to support them, and refusing to allow the employee to be accompanied by someone other than an employee or union representative when she was not a union member.

He found the dismissal to have been fair, but that her conduct was not gross misconduct under the employer's policy and that her dismissal was therefore wrongful.

The tribunal had a discretionary power to increase a compensation award by up to 25% for breaches of the Acas code.

The judge nevertheless determined that he was "just persuaded" that the employer had acted within the band of reasonable responses in treating the investigation and disciplinary process as sufficient in the circumstances.

He noted that the employer had carried out a lengthy investigation, had obtained evidence from a large body of people, several of whom supported the allegation, had made the employee aware of all the charges and afforded her an opportunity to put her case at the hearing and at the appeal stage.

He imposed an uplift of only 5%, concluding that to order more would constitute a windfall to the employee.

The EAT has overturned that decision.

It held that the judge’s detailed analysis of Veolia’s investigatory and disciplinary process showed that his characterisation of it as "a catalogue of ineptitude and misjudgement" was wholly merited.

When considering the fairness of the investigatory and disciplinary process, the judge should have considered the employer's compliance with the Acas Code of Practice.

The question of whether the dismissal was fair was remitted to the same judge for reconsideration.

The 5% uplift was also set aside and remitted for reconsideration.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

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