Case law | Back to basics and the importance of natural justice | Moorepay
January 11, 2024

Case law | Back to basics and the importance of natural justice

Warehouse worker, dismissed for video on social media, in which he is accused of grooming a 14-year-old girl, was unfairly dismissed and awarded a total of £21,449.93.

One of the most highly read cases of 2023, is the case of Mr. D Whyley and Gypsumtools Ltd. It highlights the importance of following your own company procedures and the ACAS Code of Practice. 

It’s also a reminder that no case should be predetermined, not everything is what it seems, and it’s an employer’s responsibility to investigate and establish all the facts available, before forming a belief. 

Those involved in any disciplinary process should consider the employee’s submissions in response to any allegations, meaning they should consider the case for exonerating the accused, and not just focus on the information that supports a finding that they are guilty.

Those involved in any disciplinary process should consider the employee’s submissions in response to any allegations, meaning they should consider the case for exonerating the accused, and not just focus on the information that supports a finding that they are guilty.

The case also highlights the need for the disciplinary chair to own their decision, be clear on what their decision is, and to be able to explain why they made it. 

The tribunal found that the respondent’s handling of this case offended their own policies, the ACAS code, and natural justice. It also found that those involved were motivated by “blind prejudice” and that those leading the procedure had a “closed mind”. 

Background

The claimant was employed as a warehouse worker from 23 April 2018 until 31 March 2021.

On 11 January 2021 a video of the claimant, entitled, “The Hunted One” became known to the respondent. Although open to interpretation, and denied by the claimant, it appeared to show the claimant admitting to two men, that he was meeting a 14-year-old girl, with whom he had been exchanging messages of a sexual nature. 

The respondent called the claimant to a meeting on the same day. The meeting was conducted by Ms. Horsley, an experienced HR professional and HR officer of the respondent, and Mr. Wilson, the claimant’s line manager. 

The claimant wasn’t told what the meeting was about, offered the right to be accompanied, or advised what the potential outcome could be.

In the meeting, the claimant said the video was taken in 2016, (although dated, 31 October 2020). He said it had been edited, the two men had beaten him up, and his solicitor had later got the video removed from social media. He also advised that he had been investigated by the police and nothing inappropriate had been found on his phone, but the two men had been arrested and discredited for falsifying evidence. 

In the meeting, the claimant said the video was taken in 2016, (although dated, 31 October 2020). He said it had been edited, the two men had beaten him up, and his solicitor had later got the video removed from social media. He also advised that he had been investigated by the police and nothing inappropriate had been found on his phone, but the two men had been arrested and discredited for falsifying evidence. 

The claimant offered to provide letters from his solicitor and the CPS to verify his account. He also suggested that he provide his clean DBS check, and he said he would get the video removed again from social media.

When asked why he hadn’t disclosed this situation, he said it had caused him significant stress, he had resigned from his previous employment, and he didn’t want it to affect his current position. He added that his solicitor had advised him it was not necessary, and he said that as he was not on social media, he had been unaware it was back on there. 

The meeting was adjourned and reconvened the same day. The claimant added that he would remove his profile from LinkedIn (the only social media link to the respondent). However, he was informed by Ms. Horsley that he had breached the respondent’s trust because he “had withheld information”. Ms. Horsley said, “how would this be with current colleagues.”

The claimant was then told to go home to think about whether he wished to resign or be dismissed. He asked if he had the right to appeal and was told; “No.” Instead he raised a grievance on 14 January, regarding the way the meeting on 11 January was conducted, and alleging bullying by his line manager. The grievance was handled by Ms. Horsley and an outcome was issued on 11 February. This confirmed that the claimant was dismissed on 11 January. The claimant appealed; his reasons were found to be unsubstantiated, and his date of termination was said to be 31 March 2021.

Dismissal 

The respondent’s case was that dismissal was for two reasons- breakdown in the working relationships with colleagues and the reputational damage to the company.

Decision

The tribunal found that a decision had been made in the meeting of 11 January 2021. The dismissal was therefore procedurally unfair, and the conclusions were outside the band of reasonable responses.  

It found there was no evidence of reputational damage, no evidence of difficulty in the claimant working with his colleagues, and the decisions had been made without considering his account and suggestions, or the evidence he could provide.

The tribunal noted clearly that the accounts of the respondents’ witnesses, including the managing director and HR Director, (involved in the grievance / grievance appeal), were at best inconsistent. It also noted that employees who had allegedly refused to work with the claimant, were not called as witnesses, despite remaining in the respondent’s employment.

It did not accept that Ms. Horsley was the only decision maker, but found her conclusion had been influenced by Mr Wilson, who asked most of the questions in the first half of the meeting on 11 January. Mr. Wilson fosters children and was particularly disturbed by the video. It found the reason for dismissal was not as made out. 

It further concluded that the respondent’s efforts with the grievance and the grievance appeal were to justify the decision it had already made. They were not to consider the claimant’s case – “the unfairness was perpetuated”.

Reduction in the award

The tribunal found there was no realistic prospect that the outcome would have been the same had a fair process been followed and the claimant’s conduct did not contribute to his dismissal. No reductions were applied to the awards.

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Afsha Sindhu
About the author

Afsha Sindu

Afsha is Moorepay's Employment Law Solicitor in the Compliance area of the business. With many years working in this industry, she has an acute knowledge of the ins and outs of Employment Law and HR Legislation, specialising in GDPR compliance. This means she's able to inform our clients of the most practical solutions to their HR issues and queries.

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