A man who took a snapshot video of himself snorting cocaine while wearing a T-shirt from a Dublin restaurant of which he was an employee has lost his claim for unfair dismissal before the Employment Appeal Tribunal (EAT)1

The claimant in question circulated a snapshot message to some of his friends and work colleagues which showed a video of him taking cocaine in the bathroom and wearing his work T-shirt with the company’s logo on it. It wasn’t clear whether the film was filmed in the bathroom of the workplace or elsewhere. He was subsequently called to a meeting. He was not told what the meeting was going to be about or that he could have a colleague with him. The EAT noted that the meeting was not conducted in a proper and businesslike manner with regard to any normal and fair practice. The claimant was then given the choice to have the matter investigated and go through the disciplinary process with the inevitable consequence of losing his job or simply resign and retain some element of dignity and privacy and obtain a reference. Notwithstanding the procedural difficulties, the EAT found that this was not an unfair dismissal.

Comment

The case is interesting in relation to its circumvention of the requirement for fair procedures. The EAT held that whilst it might not approve of the choice that was put to the claimant, it accepted that it was based upon the employer's motivation of protecting the claimant.  The EAT found that the employer was justified in summarily dismissing the claimant on the grounds of gross misconduct.  It also held the employer was justified in relying on its own modified procedures in this regard. Given that the EAT was satisfied that the employer could apply a modified procedure, there was no consideration of whether or not the employee had contributed to his dismissal. It is relatively rare for the EAT to endorse circumstances whereby fair procedures would be modified to such a significant degree as they were in this case.

Takeaway

Employers should approach this case with caution as modifying fair procedures even in cases of gross misconduct is not something which should be done lightly. All allegations of gross misconduct should be investigated thoroughly, taking into consideration the seriousness of the allegations, prior to determining whether the formal disciplinary process should be invoked.