Hell’s Kitchen for one employee
With news this week of dinner lady, Alison Waldock, being dismissed for gross misconduct due to “negligence, carelessness or idleness” for serving a Muslim child gammon, some are questioning whether this is just a step too far.
Ms Waldock has said that the child in question chose the dish herself and although provided with a list of students who have dietary requirements, this spans to about 40 children making it difficult to monitor. Ms Waldock has said that she was upset when she found out what had happened and in no way was the act intentional.
There are two questions that could be posed here. First, could the employer actually dismiss for this reason? Second, should the employer have dismissed her?
What was the reason for dismissal?
If Ms Waldock were to bring claim for unfair dismissal, the employer would have to show that it had a potentially fair reason for dismissing her. There are 5 potentially fair reasons:
- Statutory restriction
- Some other substantial reason
In this case, based on the wording used to dismiss her, the employer would rely on capability although the use of the word ‘idleness’ suggests a possible conduct issue.
Is dismissal a reasonable response?
Once a reason for dismissal is established by the employer, the tribunal must then decide whether the action taken by the employer was reasonable. The tribunal will look at various factors including the size and administrative resources of the employer’s undertaking and whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.
The tribunal has to decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted. The tribunal must assess the reasonableness of the employer’s conduct, not the level of injustice to the employee
Is it reasonable to dismiss for capability?
The tribunal will consider certain additional factors when looking at a capability dismissal to decide if dismissal was a reasonable, for example:
- Did the employee know what was required of them?
- Did the employer take steps to minimise the risk of poor performance?
- Did the employer provide training or supervision?
- Was the employee ever warned of the consequences of failing to improve? Were they given a chance to improve?
There have been cases where a single act alone could result in a fair dismissal. However, usually, the acts for which the employees have been dismissed are generally very serious. In Ms Waldock’s case, it is unclear whether a similar incident has occurred before. The head teacher has been quoted as saying it has but even if this was the case, how was this dealt with previously? Ms Waldock has stated procedures need to be improved to prevent this from happening again and if procedures were not changed in between the alleged first incident and this latest incident, Ms Waldock could use this point to support her case.
Employers should carefully monitor capability issues, whether raised formally or not, to identify where policies and procedures could be improved. If this had been done in Ms Waldock’s case, this could have saved the young girl being permitted to choose gammon in the first place and Ms Waldock’s dismissal. However, without knowing the full acts of the case, we cannot be certain this did not happen but nevertheless, it serves as a useful tip to employers.
Is it reasonable to dismiss for conduct?
To establish that a dismissal was on the grounds of conduct, the employer must be able to show that at the time of dismissal, it believed the employee to be guilty of misconduct and it had reasonable grounds for believing this. It also needs to show that at the time that it formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.
If an employer has reached a different conclusion previously (based on the same misconduct), this may be relevant but only in certain circumstances:
- Where decisions have led employees to believe that certain forms of conduct will be overlooked or will not lead to dismissal;
- Where it can be inferred from those decisions that the employer’s proposed reason for dismissal is not the real reason; and
- Where a decision in “truly parallel circumstances” supports the argument that it was not reasonable to dismiss in this case.
Was a fair process followed?
Once a fair reason has been established and an employer has passed the test of reasonableness, it must then show it has followed a fair process.
The ACAS Code of Practice applied to dismissals for capability and conduct and so in this case, Ms Waldock’s employer would be looking to show that it:
- Investigated the allegations
- The purpose of suspending an employee subjected to the disciplinary process is to allow for a prompt and unhindered approach to the investigation. However, employers should think carefully before suspending as this could lead to claims from employees for constructive dismissal.
- Employers should consider involving the employee in the investigation process.
- Wrote to the employee setting out the allegations
- Employers should include any evidence they wish to discuss in the disciplinary hearing.
- The date, time and location of the hearing should be confirmed.
- Employers also need to set out the fact that the employee can bring a companion with them.
- Conducted a disciplinary hearing
- The person who conducted the investigation should not conduct the disciplinary hearing. However, the tribunal will have regard to the size of the employer. Independent HR consultants are on hand to assist in these circumstances.
- Inform the employee of its decision in writing
- Employers should set out the finding and the decision for the finding and give the employer the right of appeal. If there is an appeal, this should also be heard by someone not previously involved in the case. After the appeal hearing, the employer needs to write to the employee confirming its final decision.
In summary, without knowing the full facts it is difficult to comment. However, on the face of matters, it appears to be an overreaction by the employer. If a mistake has been made, employers should be highlighting this to their employees but dismissal for gross misconduct in this instance does not appear to be a reasonable step.
*originally posted in August 2013