Even when an employee is able to establish that they have been unfairly dismissed, this is often not the end of the story.

The Employment Tribunal will consider whether any of the employee's actions should be taken into account.

Culpable conduct by an employee, prior to their dismissal, which leads directly to their dismissal, will have the effect of reducing an award. Deductions have been made which range from 10% to 100%.

One, or more, of the provisions of Article 77F of Jersey's employment law must apply.

But this does not mean only conduct which the employer was aware of at the time of the dismissal. A recent decision handed down by the Tribunal showed that conduct which comes to light after the dismissal will also be taken into account if it is linked to the conduct which led to the dismissal.

Miss G claimed for being unfairly dismissed but admitted to taking money from the wage packet of a fellow employee without their permission. During the hearing, evidence was given by another fellow employee that Miss G had previously taken monies from their wage packet (i.e. this only came to light after her dismissal had occurred).

Miss G had taken the monies from the wage packets when she had been in the office. The Tribunal considered this to be a breach of the trust and confidence that had been placed in her by the employer.

For the purposes of reducing the award, the Tribunal was able to take into account the evidence that Miss G had taken monies from the wage packets of both fellow employees.

However, notwithstanding the seriousness of Miss G's actions, this did not reduce her award completely. It was reduced by 90%.

Despite her culpable conduct, Miss G's complaint for unfair dismissal was upheld because her employer had failed to:

  • Undertake a fair investigation into the allegations (the employer had proceeded directly to dismiss based on its own beliefs about Miss G's conduct); and
  • Follow a fair disciplinary process, and only then take the decision to dismiss her for gross misconduct; and
  • Offer Miss G the opportunity to appeal the decision; and
  • The dismissal letter included incorrect and misleading information about the reasons for the dismissal (referring to Miss G's attendance and attitude).

The Tribunal found that notwithstanding Miss G's conduct, her employer did not act fairly or reasonably and accordingly, it was ordered to pay Miss G 10% of her award for unfair dismissal.

The following comment made by the Tribunal should also be heeded by employers: "It is a simple and courteous action by an employer to inform an employee of the reason for their dismissal and the Tribunal is respectful of the distress and puzzlement of an employee who does not know why they have been dismissed".

So, the lesson for employers and organisations (of all sizes) is even when an employee's actions are so wrong or outrageous that they entirely warrant summary dismissal, it remains the case that a fair investigation and disciplinary process needs to be followed.

The decision is also entirely consistent with the need to be fair and reasonable at all times, as per the Revised Code of Practice for Disciplinary and Grievance Procedures which came into force in Jersey on 1 April 2014.

Employment and Pensions News - May 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.