Disciplinary Process Under Par: how an honest belief ended up bunkered
Posted on 2nd February 2024 at 13:21
Yet another eye catching tribunal report: “golf pro fired after colleague falsely reported him saying he could lick her all over.” Plainly not a textbook swing on this occasion. How did the Club manage to take its eye off the ball, and did the pro stay completely out of the rough?
There were three allegations at the heart of Sturgess v Cambridge Country Club. Suggesting that a male colleague resembled Jimmy Savile. Sending a Facebook message to a female colleague at 11.00 one evening about her appearance, thereby making her feel uncomfortable. And commenting to that same female colleague “you smell so good that I could lick you all over”. The first and third were denied. The second was conceded, but not admitted to be inappropriate for its timing or content.
Although it was found that the Club’s general manager honestly believed that all three comprised gross misconduct, he fell down on the next essential element for a fair misconduct dismissal, namely reasonable grounds for the belief. The Savile allegation evidence was contradictory. The “lick you” comment had been flatly denied, and no attempt was made to provide a time or date or to find witnesses. The Facebook message was conceded by the GM to be serious rather than gross misconduct.
When this moved on in turn to the sufficient investigation and fair procedure elements, the Club lost hands down. Dismissal fell outside the range of reasonable responses open to a reasonable employer.
The judgment made no mention of whether the Club had an HR function. Had the Club taken external legal advice and obtained an independent evaluation on what a tribunal would make of it all, it might have avoided missing the cut.
And yet the unfairly dismissed pro was not left to bask in glory on the victory rostrum. The tribunal took the view that his serious misconduct in sending the late night Facebook message was contributory fault that justified an eye catching 40% reduction to his compensation. This seems curious. He might not have kept his behaviour on the fairway, but a finding of serious (not gross) misconduct, given his previous clean disciplinary record, would at first sight only have justified a written warning. Whether he may choose to let this lie is another matter.
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: contributory fault, Dismissal, fair procedure, gross misconduct, honest belief, range of reasonable responses, reasonable grounds, sufficient investigation, written warning
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