Unfair dismissal: Employee's admissions during disciplinary process may limit scope of reasonable investigation
Published 13 April 2015
In this case the EAT considered the impact of an employee's admissions of misconduct on the reasonableness of the employer's investigatory and disciplinary process.
The Claimant, Mr Wiltshire, worked for CRO Ports London Limited (CRO) for 22 years until he was summarily dismissed for gross misconduct. Mr Wiltshire supervised the lifting of large containers onto ships, using cranes. On 21 January 2013, Mr Wiltshire was called to deal with a problem lifting a container because it would not lock. A manager suggested that he should go to the fitters or engineers to pick up "heavy duty twist locks". When Mr Wiltshire arrived on site, the team leader was already trying to sort out the problem, in what Mr Wiltshire considered to be the usual way, by placing a small piece of wood on top of the pin in the container to help twist it into place enabling the container to lock. After the crane driver did a preliminary lift to check the container was locked, Mr Wiltshire gave the go ahead for the driver to continue. However, when the container was about 20 feet off the ground it fell from the crane. The container was badly damaged and, had it fallen on anyone, could have caused a fatality.
Mr Wiltshire was suspended. He appreciated the seriousness of the incident but, since CRO had condoned the practice that had been followed for a long time, and given his long unblemished service, he believed he would be reprimanded but not dismissed. As a result, he took full responsibility, accepting that he had previously supervised similar practice despite knowing that it was dangerous and in breach of health and safety rules. Mr Wiltshire observed that CRO had effectively sanctioned the practice and that the main motivation for doing so was time pressure. CRO's management also admitted when interviewed that the written safety procedures did not cover what to do if a machine was not working 100%. The investigation concluded that the Claimant failed in his health and safety duties.
At his disciplinary hearing Mr Wiltshire admitted his error was a "dangerous act", but did not make reference to the fact that it had been done hundreds of times over the years without consequence. The disciplinary officer found that, as Mr Wiltshire had admitted and condoned the practice and had failed to report or stop it, he had no option but to summarily dismiss him for gross misconduct. Mr Wiltshire appealed, referring to the previous custom and practice, the fact that he had not been aware of "heavy duty twist locks" until 21 January 2013, and that there were no express safety procedures in place dealing with this issue. He also said the investigating officer had failed to interview a number of other operatives, but unless there was an amnesty people would not admit the practice was common. His appeal was rejected. He claimed unfair and wrongful dismissal.
The tribunal found that the dismissal was unfair as CRO failed to carry out a reasonable investigation. In particular: CRO should, at an early stage, have: identified and taken account of the considerable pressure that workers were under on 21 January 2013; taken account of the fact that what had been done was in response to pressure of work and purely for CRO's benefit; taken steps to address the tone of the investigation to ensure the honesty of responses; considered the problems in dealing with damaged containers on a regular basis, and the absence of any specific health and safety advice in that context. The tribunal found that while Mr Wiltshire had not helped himself in the internal investigation, his stance was explained by his loyalty to CRO and he had been scape-goated for CRO's failure to identify a risky common practice. The tribunal also found Mr Wiltshire had been wrongfully dismissed. CRO appealed to the EAT who allowed the appeal and remitted the case to be heard by a new tribunal.
The EAT found that the question for the tribunal was whether the employer had acted within the range of reasonable responses of the reasonable employer in limiting the scope of its investigation in the light of Mr Wiltshire's admissions. The problem with the tribunal's approach (that further investigation would have highlighted other factors which would have put Mr Wiltshire's conduct in context such that a different view of his culpability might be taken) was that the tribunal had drawn its conclusions from its own findings, not those that were before CRO at the time. It had also failed to appreciate the significance of the admissions made by Mr Wiltshire at the time: it could not simply substitute its own view now. As the tribunal had failed to set out the basis of the wrongful dismissal claim, that also needed to re-examined.
What this means for employers
This case is useful for employers when considering how to deal with an employee's admission of misconduct. The question will be, does the admission of misconduct mean there is little purpose in carrying out a full investigation? In this case, had Mr Wiltshire put his admissions into context from the very beginning, a fuller investigation into the practice of locking containers might well have been required. The EAT's emphasis on the need to separate out the findings of unfair and wrongful dismissal is a reminder to employers to ensure employees are dismissed both fairly and in accordance with their contracts. A fair dismissal, even for gross misconduct, may sometimes be a wrongful one.