Unfair Dismissal Claim won after Employer tolerated previous act of misconduct
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August 16, 2010
Where an employer tolerates an act of misconduct and then seeks to dismiss
an employee for carrying out an act of misconduct which has been previously
tolerated, then the dismissal may be unfair.
In McDonough v Bagnall UK Ltd, an employee won an employment tribunal claim
for unfair dismissal after smoking in his company car, an act the employer was
found to have previously tolerated. The employee had over 15 years’ service
and had previously been caught smoking in his company car, but not
disciplined. In June 2009, he was caught smoking in his company car, but this
time the employer started disciplinary action. The employee denied the act of
misconduct but was sacked for gross misconduct. The employee appealed and
alleged that the employer knew several employees smoking in their company cars
but were not disciplined so he had been victimised as the employer had failed
to investigate similar allegations against other employees. The employer
dismissed the appeal.
The employee brought an employment tribunal claim for unfair dismissal,
citing Sarkar v West London Mental Health NHS Trust. After investigating a
number of complaints, the employer decided Dr Sarkar ought to face
disciplinary proceedings. However, some of complaints were inter-linked with
complaints made by Dr Sarkar about other employees, so the trust decided to
use a mediation process first. This process could only lead to a first
written warning in the worst case scenario. However, mediation broke down and
the trust dismissed Dr Sarkar under their disciplinary procedure. He claimed
unfair dismissal. The employment tribunal found that the dismissal was unfair
because the employee could reasonably believe that the complaints were not
serious enough to warrant dismissal otherwise the employer would not have used
the mediation process which could not result in dismissal. The employer could
not rely on apparently minor issues of misconduct to suddenly become serious
enough to justify dismissal. Although the employment tribunal did find the
employee had contributed towards his dismissal so reduced the compensation
In McDonough v Bagnall UK Ltd, the employment tribunal found that because
the employer had failed to discipline Mr McDonough for smoking in his company
car previously, then it was reasonable for the employee to assume that this
act of misconduct would not be taken seriously so the dismissal was unfair.
However, the employee’s compensation was reduced by 50% because he had
contributed to his dismissal.
If an employer turns a blind eye to an act of misconduct by one employee,
but dismisses another for the same act of misconduct, then the dismissed
employee may have a claim for unfair dismissal. Similarly if an employee is
disciplined and then dismissed for an act of misconduct without being warned
that the disciplinary procedure would lead to dismissal, the employee may have
a claim for unfair dismissal.
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Article Published/Sorted/Amended on Scopulus 2010-09-11 14:04:51 in Legal Articles