The recent case of Carmelli Bakeries Ltd v Benali [2013] highlights the importance of conducting a thorough disciplinary process even in a seemingly open-and-shut case, where previous discrimination allegations have been made. The Employment Appeal Tribunal upheld the employment tribunal's decision that an employee had been unfairly dismissed and victimised by his employer, despite all parties acknowledging that he had committed an act of gross misconduct.
The Claimant, Mr Benali, was employed as a pastry chef for a family-owned business, which was licensed to sell kosher food. All employees were aware of the requirements of the kosher licence and how valuable this was to the bakery.
The misconduct involved Mr Benali's use of non-kosher jam. Having discovered a receipt for non-kosher jam, the owner, Mrs Carmelli, asked her son David to carry out an investigation. The Claimant admitted using non-kosher jam, but raised several points that would have merited further investigation. One was that he had asked the cleaner to purchase the jam; another was that David Carmelli himself had asked him to send the cleaner to purchase the jam; and a third was that the use of non-kosher products was regularly authorised by management. However, these defences were not investigated further and Mrs Carmelli dismissed the Claimant. The appeal was treated as a mere formality and no mitigation was considered.
Both the Tribunal and the Employment Appeal Tribunal were clear that Mr Benali's conduct amounted to gross misconduct, and could have justified summary dismissal. However, they nevertheless held that the dismissal was unfair because the decision was tainted by victimization.
Several years previously, Mr Benali had had a long period of absence due to a disability and had issued a claim for disability discrimination, which had been settled. He had continued to pursue the employer to make reasonable adjustments and had come to be regarded as a "problem" employee. While he had certainly committed misconduct, the Tribunal and EAT held that due to his protected acts (bringing a claim and requesting reasonable adjustments), the employer had failed to carry out a proper investigation, disciplinary and appeal, which might have led to a more lenient penalty being imposed. He was awarded almost £50,000 for unfair dismissal and victimisation (injury to feelings).
This case underlines the difficulties faced by employers who wish to take action against employees who have raised discrimination issues, or indeed when other problems have marked their employment. Employers will need to show that the misconduct is the true reason for the termination and that the decision has not been tainted by other factors. Where previous problems have existed – particularly relating to discrimination – it is even more important for employers to run a thorough disciplinary and dismissal process. The process should be impartial, the investigation should be thorough, and there should be a strong paper trail. In normal circumstances, an employer is not required to investigate when the employee has admitted gross misconduct; this case demonstrates that there is an exception to that rule where there are doubts over the true reason for a dismissal.
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