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Sion Donovan was employed as a baker for high street giants Greggs for over 11 years. He was recently dismissed for gross misconduct as a result of failing to wash his hands prior to re-entering the food production area. Greggs took the decision to dismiss Mr Donovan for gross misconduct due to its zero-tolerance approach to breaches of the hygiene rules.

Mr Donovan subsequently brought a claim at the employment tribunal, claiming unfair dismissal. Although he admitted to not washing his hands in breach of the policy, he described this as a mere “lapse” and claimed the decision was outside the band of reasonable responses.  Mr Donovan had a clean disciplinary record in his 11 years with the company.

The bakery manager told the tribunal that “there’s a risk that they (the employee) might take bacteria or pathogens into the bakery and cause food illness or a poisoning outbreak”. When considering the importance of employees abiding by the rule, the company’s operations manager, Ivor Elcock, emphasised that “the outcome of not doing it is potentially lethal.”

The question I can hear you all ask is…was it a fair dismissal? The employment tribunal said yes…

Unfair Dismissal Law

It is well established at law that a dismissal will not be fair unless:

  1. the employer can show that the reason (or principal reason) for the dismissal was a potentially fair reason. There are five potentially fair reasons, and conduct is one of these;
  2. the tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal. Part of this test requires the Tribunal to decide whether the decision to dismiss fell within the “band of reasonable responses” (see below).

Now, of course an employee must (in most cases) have 2 years continuous service to have any unfair dismissal rights. But what emphasis should an employer or tribunal put on an employee’s long service – such as Mr Donovan’s 11 year service record with Greggs and the fact that the incident is (apparently) a one-off?

Band of Reasonable Responses

A tribunal must consider whether in dismissing the employee the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found of the particular employee. It is important to note that the tribunal must assess the reasonableness of the employer’s conduct, not the level of injustice to the employee. Furthermore, the tribunal may only take into account facts known to the employer at the time of the dismissal. Therefore, even though Mr Donovan was a long standing employee and made what seems to be a simple mistake, it was in fact gross misconduct under the company’s policy and Greggs were therefore entitled to dismiss following a reasonable investigation. Long service should certainly be taken into account by employers, but it is not a defence to all acts of misconduct for the long serving employee.

The tribunal would have considered the potential implications of the breach in this case, and whether Greggs’ decision to dismiss was reasonable in light of this. The threat of increased bacteria or illness potentially caused to customers was clearly a fair concern and the tribunal agreed with this. The potential loss to the company, should employees be allowed to breach the hygiene policy, would be significant, and this would have been a further consideration by the tribunal.

The band of reasonable responses is broad and this gives an employer the upper hand in cases like this.   Even if a dismissal is considered harsh, it may well fall within the broad band of reasonable responses.

Conduct Dismissals

As explained above, it is potentially fair to dismiss an employee for a reason that relates to the conduct of the employee. It may be either a single act of serious misconduct (usually termed gross misconduct) or a series of acts that are less serious. Many employers who read this will be familiar with taking employees through a disciplinary procedure, following company policy i.e. first written warning, final written warning, and finally dismissal. When it comes to a gross misconduct dismissal, however, employers should seek advice to consider if the act in question constitutes gross misconduct, entitling the employer to dismiss summarily without notice.

A dismissal on the grounds of conduct will only be fair in the following circumstances:

  1. At the time of dismissal, the employer believed the employee to be guilty of misconduct.
  2. At the time of dismissal, the employer had reasonable grounds for believing that the employee was guilty of that misconduct.
  3. At the time that the employer formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.

It is crucial that employers have clear policies dealing with what constitutes misconduct and/or gross misconduct. Employers must follow a fair procedure for conduct issues in the workplace, and need to establish through thorough investigation if the conduct is simply misconduct resulting in a warning (or further warning), or gross misconduct resulting in an immediate dismissal.

Dealing with conduct issues in the workplace

It can be difficult for employers to decipher what is misconduct and gross misconduct; and this is a case in point. It is crucial for employers at the very outset to seek expert legal advice so that a fair procedure can be followed and a decision within the band of reasonable responses can be made. Although many of you will be surprised or perhaps feel a degree of sympathy for Mr Donovan, due to the circumstances surrounding the act of misconduct and clear breach of a company policy, the tribunal deemed Gregg’s decision to dismiss summarily fair.

Seeking expert legal advice at an early stage in any disciplinary matter is crucial for both employers and employees. Should you require advice, please do get in contact with me or one of our employment lawyers.