Bring Me Sunshine: a dismissal stripped of common sense
Posted on 19th January 2024 at 13:40
“Our disciplinary procedure. What do you think of it so far?” “Rubbish!” A natural reaction, we may think, to a newspaper tribunal hearing report titled “Man wrongly sacked after Eric and Ernie striptease”. Let’s have a closer look.
In Lovejoy v Rowgate Group & CE Jeatt & Sons, Mr Lovejoy was summarily dismissed for gross misconduct on 5 August 2021. The two incidents leading to this were on 16 December 2020, when he recorded a friend and colleague Mr McAleer moving to a recording of “The Stripper” during working hours, echoing the Morecambe & Wise version, and 13 January 2021, when he recorded non-work conversations with the same colleague on a company mobile phone.
Offence was apparently taken (or deemed taken) only six months after the first incident, by a subordinate of Mr Lovejoy who witnessed what had taken place, after issues had developed separately between the two of them. Mr McAleer had taken no offence, having been a willing participant. It was unclear why the company thought fit to treat this incident as a disciplinary issue at all, let alone one justifying a gross misconduct dismissal. For what it is worth, the tribunal judgment contained some oblique comments as to the authenticity of supporting witness statements.
The second incident was plainly a makeweight. There was no company policy about phone use or misuse. The workplace atmosphere had always been “relaxed and jovial” according to Mr Lovejoy’s unchallenged evidence. The evidence of the alleged misuse had only come up via a trawl of the phone before the dismissal, no prior monitoring having ever been in place.
The trial was listed for two days and began on 26 June 2023, almost two years after the dismissal. Were the parties then given the benefit of judicial wisdom upon honest belief in misconduct, reasonable grounds for the belief, whether there had been a sufficient investigation, and a fair procedure? Or the need for a fair dismissal to fall within the range of reasonable responses open to a reasonable employer? No – on the first morning, liability for unfair dismissal was conceded. There was no finding of contributory fault, and Mr Lovejoy walked away with £52,000. For the employer, a bracing lesson that may have left it feeling less Morecambe and Wise, more Skegness and Dim.
Both parties were represented by Counsel at the trial. Whether the company was determined to have its day in the tribunal and defend its decision, regardless of advice to the contrary over the preceding two years, we will never know. But one point stands out. Had this employer sought legal advice with an open mind before the disciplinary hearing, it may have been able to save itself a considerable sum in compensation and costs.
Are you conducting or contemplating a disciplinary hearing? Would the evidence (and any “agenda factors”) benefit from an independent outside evaluation before you make a decision you might regret? Get in touch. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: company policy, disciplinary hearing, gross misconduct, honest belief, outside evaluation, range of reasonable responses, reasonable grounds, sufficient investigation, summary dismissal
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