Case roundup

This
week’s case roundup

Dismissed
for drunkenness on duty
Retirement Care Group Limited v Greener, EAT, [2002] All ER (D) 84

In
this case, the Employment Appeal Tribunal (EAT) took a common sense approach to
disciplining an employee who turned up to work drunk.

Diane
Greener was employed as a resident manager of retirement properties and had
received several written warnings about drinking or being drunk while at work.

In
October 1999, as a result of a complaint about Greener’s drinking, the Housing
Ombudsman had arranged a meeting with her and the area manager. On his arrival,
the Ombudsman found Greener to be showing clear physical signs of being drunk.
The company’s area manager also witnessed her behaviour.

After
the arranged meeting, the area manager gave Greener an opportunity to explain
herself, and she strongly denied having been drinking and blamed her appearance
on stress. During this interview, she was summarily dismissed.

Greener
brought an unfair dismissal complaint, which the tribunal upheld. It found the
company’s investigation was insufficient and the disciplinary procedure unfair,
stating that a reasonable employer would have suspended and held a formal
disciplinary hearing. But, the company successfully appealed to the EAT.

The
EAT held that the company had reasonable grounds for believing Greener had been
drinking, having "carried out as much investigation as was reasonable in
the circumstances". Furthermore, Greener had a full opportunity to explain
herself, in response to which she had lied.

A
prolonged sequence of suspension, warning of dismissal and formal disciplinary
hearing was there-fore not necessary. The appropriate test must always be
whether an employer’s conduct falls within the reasonable band of responses.

Drawing
an inference of discrimination
Simon v Bupa Care Services and another, EAT, [2002] All ER (D) 31

Simon,
who is black, was employed as a care assistant at a nursing home. She brought a
tribunal complaint of racial discrimination. Between the complaint being heard
and the tribunal giving its decision, Simon was summarily dismissed for making
racial remarks to a white colleague.

The
manager who conducted the disciplinary proceedings had been aware of Simon’s
ongoing tribunal complaint at the time of dismissal.

Simon
then brought a successful unfair dismissal claim and a further complaint of
race discrimination by way of victimisation, which was dismissed. She appealed
against the tribunal’s latter decision, arguing that she had been victimised for
having brought the earlier proceedings.

Her
appeal was successful. The EAT held that the tribunal had failed to properly
address the relevance of the disciplinary officer’s knowledge of the ongoing
tribunal complaint, in deciding whether an inference of discrimination could be
drawn.

It
concluded that the tribunal had either failed to consider the significance of
this issue or if considered, had omitted to explain why this factor was not
relevant.