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Staff misconduct in the workplace – personality conflicts, ‘sickies’, drugs, alcohol and third-party requests to dismiss

Posted by Lesley Furber on Nov 10th, 2018 | Employment law

Booze | Staff Misconduct in the workplace | Crunch

Staff misconduct in the workplace can be a tricky problem to handle. Depending on the type of misconduct, it could result in lost jobs, unhappy staff or lower team morale – and that’s before you’ve even considered the legal implications.

Please see our related article, “Misconduct outside the workplace”, where we cover problems at the work Christmas Party, staff criminal convictions and guilt by association. The article also covers the problems staff can cause when using social media at work.

We also have an article offering more general information about how to conduct disciplinary hearings when your staff raise conduct and performance issues.

In this article, however, we focus on some specific staff misconduct issues in the workplace.

This article covers:

Personality conflicts are one of the hardest problems to fix. When people are working in close proximity for long stretches of time, it’s only natural for the red mist to descend once in a while – but what happens when the problems run deeper than a momentary flare-up?

In an important case, Perkin v St George’s Healthcare NHS Trust, the Courts found that a competent but abrasive executive could potentially be fairly dismissed because of his manner. Perkin’s behaviour justified his dismissal, even though the dismissal was handled badly by the employer.

In 2015, the Court of Appeal, in Graham v Commercial Bodyworks Ltd, found that an employer should not be held liable for injuries caused to one employee when a ‘prank’ went wrong at work. Two workers were joking around when one set fire to the other, causing serious injury. The injured employee claimed that his employer was liable to compensate him for injuries caused by the other employee. The Court reviewed the law on an employer’s liability for their employees’ acts of violence and said that “frolicsome but reckless conduct” would not normally be said to have occurred in the course of employment, so it was inappropriate to impose liability on the employer.

Generally, it is established that employers can avoid liability for practical jokes in the workplace if they can show that the employees who were joking were acting on a “frolic of their own“, i.e. by doing something totally unconnected with their work.

In Adamson v Mitchells & Butlers Retail Ltd, a manager’s behaviour undermined the Employer’s trust and confidence in him to such an extent that it warranted the manager’s summary dismissal. Adamson was the Pub Manager at one of the Employers flagship venues and was recorded on CCTV being pushed around in a wheelie bin by a female worker. He fell out the bin, damaged a door and embraced the worker. Although the manager admitted that “it was a ridiculously stupid act”, the Employment Tribunal found that this dismissal was fair because the employer had lost all trust and confidence in him to do his job.

In Otomewo v Carphone Warehouse 2012, an Employment Tribunal (ET) found that the actions of employees who took their manager’s iPhone, without his permission, and updated his Facebook status to read “Finally came out of the closet. I am gay and proud” was harassment on the grounds of sexual orientation. Even though the claimant was not gay, the Tribunal concluded that the comments were displayed to friends and family in a public space which caused him embarrassment and distress. The Tribunal also concluded that, since the incident occurred during working hours in the workplace, the employer was liable for their actions.

In 2017, in Arnold Clark Automobiles Ltd v Spoor, Spoor had been dismissed after grabbing an apprentice by the collar. Mr Spoor was a vehicle technician, working for his employer for 42 years, with a clean disciplinary record. Spoor had a disagreement with the apprentice, lost his temper and grabbed the apprentice’s collar. When interviewed by his manager, Spoor admitted touching the apprentice’s neck and he apologised to the apprentice. Spoor’s manager told him no disciplinary action would be taken but he would be issued a ‘letter of concern’ in accordance with the Company’s Disciplinary Procedure. However, the HR department decided that a formal investigation was required as they knew physical violence was an example of gross misconduct in their disciplinary policy. Spoor was suspended and at the ensuing disciplinary hearing he was dismissed; he then bought claims for unfair dismissal, wrongful dismissal and breach of contract.

The original Employment Tribunal (ET) agreed he had been unfairly dismissed because the original investigation had not taken into account the views of his manager or the apprentice when determining the seriousness of the incident, and also because no reasonable employer would have dismissed Spoor based on his previous good record. The employer appealed but the Employment Appeal Tribunal (EAT) agreed with the ET’s decision.

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In environments where employers have to win and retain clients (through their clients’ satisfaction with the service they provide), what happens if an important client has an objection to a member of your staff delivering the service to them (whether their objection is warranted or not)? Can you dismiss the employee fairly?

In Dobie v Burns International Security Services Ltd in 1984, the Court said that, for a dismissal to be fair, the Employer who receives a request to remove an employee must consider whether there is any “injustice” to the employee and to what extent. The Employment Appeal Tribunal (EAT) said the employer should take into account the employee’s length of service and whether there had ever been any previous issues with the employee, and also how easily the employee would find other employment if they were dismissed.

Later cases have said that even if there is an injustice to the employee, a dismissal can still be fair if the employer has taken steps to avoid or mitigate the injustice, e.g. by trying to get the third party to change their mind or looking for other work for the employee. In Henderson v Connect (South Tyneside) Ltd in 2009, the EAT said the employer would be expected “to pull out all the stops” to try to mitigate against the injustice.

In Masini v Compass Group UK & Ireland Ltd, in October 2015, an employee was dismissed fairly as a client had asked for the employee to be removed from working on their site. The employer tried to resolve the situation and look for alternative work for Masini; a number of possible jobs were identified but Masini turned them down because they involved extra travel or a drop in status – she was dismissed and an appeal process followed. The Tribunal rejected her claim for unfair dismissal as it felt the employer had done what it could for her.

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In Ajaj v Metroline West Limited in 2016, the Employment Appeal Tribunal (EAT) decided that “pulling a sickie” when not actually ill could amount to dishonesty and misrepresentation warranting dismissal on the grounds of gross misconduct. Mr Ajaj, a bus driver, suffered an injury at work and his Occupational Health department deemed him not fit to work for some time. Metroline were worried about the genuineness and extent of his injuries and placed him under covert surveillance. He was dismissed on the grounds of making a false claim for sick pay, misrepresenting his ability to attend work and making a false claim of an injury at work.

The original Employment Tribunal found he had been unfairly dismissed as Metroline had no reasonable grounds for believing this and their investigation was not reasonable. The EAT disagreed saying the employer did have a genuine and reasonable belief of his misconduct based on a reasonable investigation, and that Mr Ajaj had attempted to commit fraud – or at least exaggerate his symptoms. The Judge said: “An employee who ‘pulls a sickie’ is representing that he is unable to attend work by reason of sickness. If that person is not sick that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship”.

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In McElroy v Cambridgeshire Community Services, 2015, McElroy, a health care assistant, was dismissed for coming to work smelling of alcohol. The employer’s policy required that an employee could be dismissed for gross misconduct if they were “unfit for duty”. However there was no evidence that the employee was ‘actually unfit’ to work, therefore the dismissal was unfair. The Employment Tribunal found that simply attending work smelling of alcohol would not amount to gross misconduct in the absence of evidence of an adverse effect on the employee’s ability to do their job (being unfit for duty).

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While drug and alcohol testing in the workplace was traditionally limited to roles where safety was critical, workplace testing is on the increase. Companies have a statutory duty to ensure a safe working environment for their staff, and employers who allow staff to work under the influence of drugs/alcohol, which subsequently cause others injuries or puts other staff at risk, can be prosecuted. Of course, employers also need to consider how the after-effects of drug/alcohol use can impact on effective working and productivity.

Currently, employer’s must have a member of staff’s consent to test them for drugs/alcohol (which is often included in the contract of employment or staff handbook, alongside the right for an employer to ask an employee to take a drug test where they have a reason to suspect the employee is under the influence of drugs/alcohol).

Employers, though, need to consider what their definition of drug and alcohol abuse is (illegal substances, misuse of prescription drugs or medicines, legal highs, inability to work) and how they operate any drug-testing system – will you have a ‘zero’ tolerance’ or ‘cut-off‘ approach, e.g. if an individual has drugs in their system, but under a certain level, will it be ignored? You also need to consider the impact of the General Data Protection Regulations and its requirements, when processing sensitive/special category data.

In Ball v First Essex Buses Limited, Mr Ball was a 61-year-old bus driver who tested positive for cocaine. He was a diabetic who required blood prick tests every two hours to check his blood sugar levels and as part of his defence, Mr Ball said that bank notes contaminated with cocaine may have been to blame for him failing a drugs test. In an attempt to prove his innocence, Mr Ball provided a hair follicle test which showed no traces of cocaine in his system. This test was ignored by the bus company as it had not been done by their providers and he was dismissed.

The Tribunal was critical of First Essex Buses and the way they carried out the disciplinary process. Although the company’s drug and alcohol policy was silent on other methods of testing, they told Mr Ball that it was not within their policy to accept alternative tests. This was not correct, and it was deemed something a reasonable employer should have considered, especially since Mr Ball had a 21-year clean disciplinary record.

Check out our article, “Disciplinary procedures: common mistakes made by employers“, for more information on misconduct investigations and the best practice to follow when considering disciplinary procedures.

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