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Dismissal was victimisation after inadequate investigation

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Posted by Tina Chander on 13 August 2013

Tina Chander Partner - Head of Employment Law

The importance of a fair investigation was highlighted in the recent case of Carmelli Bakeries Ltd v Benali [2013].  Here, the EAT upheld the employment tribunal’s decision that an employee, who admitted an act of gross misconduct, was unfairly dismissed and victimised by his employer. Why? The inadequate investigation surrounding the disciplinary process convinced the tribunals that the employee’s misconduct was not the main reason for his dismissal.

In any misconduct case, the tribunal must be satisfied that:

  • the employer had a genuine belief in the employee's guilt;
  • that belief was reasonable for the employer to hold;
  • it was reached after the employer had carried out as much investigation as was reasonable in the circumstances (BHS v Burchell [1978]).

Background

Mr Benali was employed as a pastry chef by The Carmelli Bakery, a family-run business licensed by Jewish authority Kedassia to sell kosher food. The employer was subject to regular, often unannounced, inspections into its food preparation practices, and employees were apparently aware that the employer could lose its licence if it did not adhere to the strict requirements of Kedassia.

Mr Benali suffered from sciatica (which fell within the definition of a disability under the Equality Act 2010) and had a long period of sickness absence in 2007-2008.  On his return to work, a dispute arose surrounding his requests for reasonable adjustments.  He issued tribunal proceedings for disability discrimination, which his employer settled. Matters did not improve, however, and the employer continued to ignore Mr Benali’s continued requests for adjustments.

In June 2011 one of the owners, Mrs Carmelli, found a Tesco receipt for two jars of non-kosher jam.  Mrs Carmelli asked her son, David Carmelli, to conduct an investigation. David discovered that one of the cleaners had bought the jam. The cleaner claimed that Mr Benali had told him to buy it from Tesco, and had told him that the purchase was authorised by David Carmelli himself. Another employee told David that he had seen Mr Benali with the jam. David wrote a statement denying that he had given his authority to buy the jam and concluded the investigation within an hour. He did not interview Mr Benali, nor did he interview any other members of staff.

Mrs Carmelli held a disciplinary hearing a week later. Mr Benali admitted to having used the jam knowing it was not kosher, but claimed that he had been told by management on previous occasions to use whatever was available when there was a shortage. He maintained that David had told him to ask a cleaner to go out and buy the jam, but he denied sending the cleaner to Tesco.

Mrs Carmelli summarily dismissed Mr Benali without further investigation. His appeal was dismissed by Mr Carmelli, who considered the appeal process to be no more than a formality.

Claims

Mr Benali claimed unfair dismissal, wrongful dismissal and victimisation. The tribunal rejected the wrongful dismissal claim on the basis that Mr Benali’s conduct in knowingly using the non-kosher jam was an act of misconduct which would have entitled his employer to dismiss him without notice.

However, it held that Mr Benali’s dismissal did not arise from the act of gross misconduct, but rather amounted to victimisation. It is unlawful victimisation for an employee to suffer detriment or dismissal because of a protected act. In this case, the protected acts included Mr Benali’s earlier discrimination claim and his on-going requests for reasonable adjustments in relation to his disability, which his employer had ignored. The tribunal held that Mr Benali was considered a “problem employee” because of these protected acts, which ultimately affected the management of the disciplinary process and the sanction imposed.

The tribunal made an award for unfair dismissal which included a basic award and one year’s loss of earnings. It also awarded £14,000 injury to feelings arising out of the victimisation.

The employer appealed to the EAT on the issue of liability and remedies. The EAT dismissed the appeal against liability but did remit the case back to the tribunal for reconsideration of the unfair dismissal award, in light of Mr Benali’s contributory conduct.

Proper procedure

The case is an important reminder of the need to carry out as much investigation as is reasonable in the circumstances, prior to conducting disciplinary proceedings. Even where the employee admits an act of gross misconduct, it is incumbent on the employer to carry out a reasonable, impartial investigation, which includes further investigation into any issues raised in the disciplinary hearing or appeal, to justify the penalty imposed. Where there are failings in this regard, it is open to the tribunal to consider a possible underlying reason for the dismissal – in this case, an act of victimisation – and compensate the claimant accordingly.

About the author

Tina Chander

Partner - Head of Employment Law

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Tina Chander

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

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