Handling
staff disciplinary matters needs some careful attention, particularly so in the
area of instant dismissal
For
all the exciting new traps for unwary employers to fall through at an employment
tribunal hearing, it is the old ones that still cause the most problems. In
John Lewis v Coyne, 2001, IRLR 139, EAT, the store’s handling of disciplinary
matters was put under the spotlight by the EAT over the issue of the use of
company telephones.
Many
employers would not dream of dismissing staff for moderate use of company
telephones, but they may consider it for use of company e-mail facilities, fax
machines or stamps.
John
Lewis’ Guide for Employees states that staff must not use department phones for
making personal calls. It made clear a breach of the regulation would be viewed
very seriously and could lead to dismissal.
A
circular was also sent to staff in the same terms.
Coyne
was in the habit of calling a colleague who covered her department on Saturdays
to discuss work issues and also for a chat. Her colleagues would sometimes call
Coyne on her mobile phone on days off because she was “a mine of
information”.
Coyne
suffered a miscarriage and, when upset, would call her husband for support. She
also made calls to a rental agency because of the great difficulty she was
experiencing in letting out a property she owned.
The
store became suspicious that Coyne was making personal calls and checked the
call record. It found that calls had been
made from the department to the various numbers, averaging about 16 minutes a
week.
When
questioned, Coyne admitted making a number of personal calls and she was dis-
missed. Her appeal failed on the grounds that the making of any private call
was against company regulations.
A
tribunal found the dismissal unfair. John Lewis had not helped itself because
Coyne’s disciplinary hearing had taken place only 12 minutes after an
investigatory interview with her, and she had had no prior notice.
At
the tribunal, the store argued that because Coyne had admitted making private
calls, no further investigation had been necessary.
The
EAT was unimpressed by this argument and held that John Lewis should have
investigated the seriousness of the offence in this particular case. This meant
considering if Coyne had been warned about calls in the past or if she had
gained the impression that private calls were condoned, whether or not she had
alleged this herself – that is, the store was expected to anticipate potential
mitigating factors even if she did not raise them.
The
EAT stressed, however, that its decision was not meant to indicate that
employees using a company phone for personal use were immune from properly
conducted disciplinary action.
Companies
should not be tempted by the store’s peremptory disciplinary procedure in this
case into believing that they could not be caught out in the same way. Even if
the store had given Coyne proper warning of the disciplinary hearing, it is
likely the dismissal would have been found unfair if the company had not
considered all the facts, including how serious the breach was; whether Coyne
realised she was breaching the rules; and any mitigating circumstances.
It
is all too easy if an employee breaks a rule with a defined penalty to assume
the penalty will apply automatically. But the employer must be seen to be
considering if it is appropriate in the particular case.
Key
points
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–
Give clear indications to staff of the types of conduct which may warrant
instant dismissal.
– Even if the employee admits to the conduct, or there is indisputable
evidence, a proper investigation of the circumstances is still recommended.
– In such cases, do not assume that dismissal must be the penalty. Give proper
consideration to all relevant factors.
Jill
Kelly is a partner with Tunbridge Wells law firm Thomson, Snell & Passmore
