Case of the week is back and no it isn’t a sequel to V for Vendetta. This weeks’ case is about inappropriate conduct and Polkey deductions.

Today’s question:

Can a Claimant who hasn’t committed gross misconduct still be fairly dismissed for it.

The Claimant, V, was a Caretaker at a primary school run by Hertfordshire County Council, the Respondent. He was 60 years old when he began his employment and as part of his job he regularly came into contact with children throughout the day

The Claimant was involved in several incidents which could be construed as inappropriate, including;

– Whilst fixing some toilet plumbing during lesson time a young pupil walked into the toilets and the Claimant was alone with him for some time.
– Whilst fixing a bench at break time the Claimant was hugged by two young children, supposedly after being invited to do so by the Claimant.
– The Claimant was observed by the head teacher staring at young pupil during assembly
– Repairing a child’s guitar and giving her a new case as a present.
– Giving copies of a story he had written to children as presents.

The school became aware of these incidents and was concerned about the Claimant’s conduct, particularly the second incident as it involved emotive physical contact. The Claimant was suspended and the Respondent also involved the police in the investigation.

The police search into computer, phone and employment records came back negative and the Respondent was advised that he was a gentle man who did not necessarily understand how friendly behaviour from an older man could be misconstrued.

Nonetheless the Respondent conducted a disciplinary hearing and the Claimant was dismissed for gross misconduct. The disciplinary process was conducted poorly, most notably the deputy head teacher misrepresented the above toilet incident to make it seem as if the Claimant had followed the pupil into the toilets.

The Claimant appealed the decision and after this was rejected the claim was heard before an Employment Tribunal. The ET held that the Claimant had been unfairly dismissed as he had not actually committed any misconduct and that the disciplinary action taken against him had also been unfair.

The ET did decide that had the Claimant been dismissed for some other substantial reason instead of gross misconduct then the dismissal would have been fair and thus applied the Polkey (contributory fault) test to reduce the Claimant’s award by 100%.

The Claimant appealed the decision and EAT accepted this appeal but was unwilling to determine how much compensation the Claimant was due and remitted the claim back to Tribunal for fresh consideration, which has yet to be decided.

Today’s lesson

Be careful what you give as reason for dismissal. Had the Claimant in this case been dismissed for some other substantial reason, such as a breach of trust, then the dismissal would have been fair.