When Dismissal is a Costly Step Too Far ?

Two recent cases published by the EAT once again illustrate the difficulty that employers face in arriving at a fair outcome when making a decision to dismiss employees for misconduct. In both cases involving large retail organisations, the decisions to dismiss were deemed dis-proportionate despite admitted fraudulent behavior and the existence of a previous final written warning.

Dis-proportionate Disciplinary Sanctions

In the first case (ref UD83/2013) the EAT determined that a decision to dismiss an employee who was on a final written warning for poor performance as a result of mystery shopping reports was “heavy handed” and “unfair” when he was dismissed for a separate unrelated offence of not rotating out of date stock daily. It was noted that other staff received a lesser disciplinary sanction for not rotating the out of date stock and the EAT outlined that the company was not obliged to move to termination from the final written warning and could have considered lesser sanctions in line with what other staff received.  The EAT also stated that the employee should not have been put on a final written warning based on the one sided evidence of a mystery shopper. The employee was awarded €10,000 in compensation.

In the second case (ref UD517/2012) the EAT determined that the summary dismissal of a departmental retail manager who fraudently set up a cash and carry account was dis-proportionate in the circumstances and awarded her €14,000 in compensation and €2,600 unpaid notice. Despite the employee admitting to the offence which the Company believed seriously undermined the trust in their relationship, the EAT highlighted the previous good record of the employee and that the particular difficult personal

circumstances she was experiencing at the time should have been considered in respect of this one error of judgement. It was also noted by the EAT that the appeal process did not involve an actual appeal meeting as the manager hearing the appeal said the employee had admitted to the offence.

Lessons for Employers on How To Dismiss Fairly

  • Ensure during disciplinary proceedings that all relevant circumstances and the employees previous record is fully taken into account;
  • Do not automatically move to dismissal from a final written warning;
  • When dismissal is a potential outcome consider alternative sanctions short of dismissal.