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Disciplinary investigations: Common sense and even-handedness should prevail

In the recent Employment Tribunal (ET) case of Ball v. First Essex Bus Limited, the claimant, a 60-year-old bus driver who suffers from diabetes, has been successful in his unfair dismissal claim. He persuaded an ET that his dismissal for being under the influence of cocaine whilst on duty was both substantively and procedurally unfair. The claimant had failed a random drug test.

This case shouldn’t instil fear in employers who require to carry out random or “with cause” drug testing despite the attention-grabbing headlines that have been published in response to the ET decision. It should, however, serve as a useful reminder to employers to follow their own policies and procedures (which should be regularly updated) as well as the ACAS Code of Practice on Discipline and Grievance even in the face of (or perhaps particularly in the face of) very serious, career-ending, allegations. In this case the employer failed to follow its own drug and alcohol policy and contractual disciplinary policy. Importantly the drug and alcohol policy expressly allowed an employee to challenge the results of a positive test but the respondent did not bring this to the employee’s attention. The policy also required that an independent laboratory identified by the employee carry out a second test. This didn’t happen either. In addition the disciplinary policy provided that both investigating officer and disciplinary manager must carefully consider any verbal or written evidence submitted by the employee or their representatives. This was roundly ignored.

The judgment sets out a very good summary of what the ACAS Code requires an employer to do when operating any disciplinary procedure or process and in particular that an employer should keep an open mind and look for evidence that supports the employee’s case as well as evidence against it. In this case it appeared to the judge that “the respondent would pursue any avenue that would shore up the case against the claimant yet ignore any factor that might support the claimant’s position”. The judge also commented that “any disciplinary process requires a degree of common sense”.

The claimant’s position on cross-contamination (by handling cash and his fingers coming into contact with his mouth) was all but ignored despite being “open to the issue” as far as the judge was concerned. The employee had long service and an unblemished record. The fact that all four senior managers involved in the disciplinary process (investigation, disciplinary, first appeal and second appeal) found it odd that a 60-year-old man who suffered from diabetes, had no history of drug taking whatsoever, had an unblemished record, was of good character and whose managers were surprised that he had allegedly taken cocaine meant that any reasonable employer would have made further enquiries.

Disciplinary investigations: Common sense and even-handedness should prevail

Context is key in claims of harassment

In the recent case of Evans v. Xactly Corporation Limited the EAT considered whether calling an employee a "fat ginger pikey" constituted harassment relating to disability and/or race. In the particular circumstances of this case, the EAT held that it did not.
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Context is key in claims of harassment

EAT finds you cannot cherry pick from without prejudice conversations

The Employment Appeal Tribunal (EAT), in the recent case of Graham v. Agilitas IT Solutions Ltd. (Agilitas), ruled that an employer cannot rely on parts of a without prejudice conversation held in accordance with s.111A of the Employment Rights Act 1996 (ERA) and/or the "common law" without prejudice rule, whilst at the same time seeking to use the without prejudice rule as a shield in reference to that same conversation. S.111A of the ERA permits discussions between an employer and an employee with a view to terminating employment on agreed terms to remain confidential and inadmissible in proceedings before a tribunal for unfair dismissal.
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Suspension for alleged misconduct may be a breach of contract

In the recent case of Agoreyo v. London Borough of Lambeth [2017] EWHC 2019 (QB), the High Court has held that suspension as a "knee-jerk" reaction to an allegation of misconduct may in itself be sufficient to breach the implied contractual term of trust and confidence.
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Tribunal awards £2 for employer’s refusal of unsuitable companion at disciplinary hearing

Mr Gnahoua was a bus driver at Abellio London Ltd (Abellio). He was dismissed for gross misconduct at a disciplinary hearing. On appeal, Mr Gnahoua told Abellio that he wished to be accompanied by two brothers, who had formed the PTSC union, of which Mr Gnahoua was also a member. Abellio refused this request stating it had banned the brothers from representing its staff at hearings due to their “threatening behaviour” and “dishonesty”. Therefore, Mr Gnahoua attended the appeal unrepresented and the decision to dismiss him was upheld.

Mr Gnahoua subsequently brought various claims in the tribunal, which included that Abellio had denied him the opportunity to be accompanied at his disciplinary appeal hearing. The employment tribunal accepted that, by refusing to allow the two brothers to attend the appeal, Abellio was in breach of Mr Gnahoua’s statutory right to be accompanied. Notwithstanding this finding, the tribunal accepted that Abellio had “strong grounds” for refusing Mr Gnahoua’s choice of companion. It also appreciated that Mr Gnahoua had not suffered any loss because of the breach because Abellio had conducted the appeal hearing in a fair and thorough manner. Therefore, the tribunal considered that a nominal award of £2 was appropriate in the circumstances.

The full case report can be found here: Mr M Gnahoua v. Abellio London Ltd 

Tribunal awards £2 for employer’s refusal of unsuitable companion at disciplinary hearing