Veitch Penny LLP - Exeter | Crediton, Devon

Case

Premier Foods Plc v Garner
Employment Appeal Tribunal - 20 March 2007

Issues

1. Misconduct
2. Disciplinary procedures
3. Statutory Dispute Resolution procedure

Facts

This case looked at the application of the statutory disciplinary procedure which most employers should now be relatively familiar with. The basic principle is that when contemplating dismissal the statutory procedure must be used as a bare minimum and failure to use the procedure will mean that the dismissal must be deemed to be automatically unfair by a tribunal and adjustments to the employee’s compensation made.

In this case an employee of Premier Foods Plc (“Premier”) complained that their soft drink had been spiked by one of three colleagues. The grievance was investigated and all three employees implicated were brought to a disciplinary interview. At this point all three denied any involvement in the matter. They were then given final written warnings which were to remain on their files for 12 months. All three employees initiated an appeal and these were heard on the same day. It was specified in Premier’s appeal procedure that at an appeal hearing the original sanction may be increased, reduced or overturned.

At the appeal, the first employee changed his story and said that he had seen Mrs Garner spike the drink in question. Mrs Garner’s appeal was the next to be heard. She was told what the first employee had said but did not change her own story. She was suspended on full pay. The third employee, in their appeal, also said that Mrs Garner had spiked the drink. Premier then went back to Mrs Garner and told her that she would be dismissed with immediate effect, thereby increasing the original sanction of final written warning. Premier’s procedure had a further level of appeal which Mrs Garner used continuing to maintain that she had not spiked the drink. She argued that Premier needed to interview three other employees in order to address some inconsistencies given by the third employee. Premier refused to do so.

She made a claim for unfair dismissal which was successful at the Employment Tribunal. The matter was referred to the Employment Appeal Tribunal (EAT).

Decision

The tribunal’s decision was upheld.

Whilst Premier had followed its own procedures it had not followed the statutory disciplinary and dismissal procedure correctly. As the new information which had come out during the appeal process had led them to re-consider Mrs Garner’s dismissal, then the statutory procedure should have been started again. She should have had the case for dismissal put to her in writing and had a reasonable opportunity to consider and respond to it. The EAT also felt that Premier should have spoken to the other employees in order to address inconsistency in the evidence against her.

Comments

In the context of the facts, this is a very easy mistake for an employer to make. The case, however, highlights the importance of the employer reviewing all the evidence at each stage of the process and if in any doubt the process should be recommenced.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.