The Employment Appeal Tribunal has confirmed that an employer that dismissed a member of staff following admitted gross misconduct was still liable for victimising him. This seems a surprising conclusion, but there is more to this decision than meets the eye.
The claimant worked in a bakery producing kosher products. He had a history of sciatica and was a disabled person. To say the least, his employer had treated him unsympathetically and he had previously brought proceedings for disability discrimination. In addition, while knowingly using non-kosher jam in a cake was an act of gross misconduct, the practice of substituting non-kosher ingredients appears to have been tolerated by his line manager when there were supply shortages. Against this background the ET ruled that his dismissal without any proper investigation supported an inference that his misconduct was being used as a pretext for getting rid of a troublemaker. In particular there had been a failure to speak to him at all before deciding to dismiss, or to take any steps to investigate another employee who was also “in the frame”.
The EAT confirmed that the key task of the tribunal in these cases was to examine whether employee’s history of asserting his rights under discrimination legislation significantly influenced the decision to dismiss. It did not need to be the only reason. In this case the ET had done its job properly and was entitled to reach the decision it did.
This case is one of a number this year which emphasise that employers need to be scrupulous in treating employees who have complained about discrimination in the past in exactly the same way as they would treat other employees. As this latest case shows, that applies even there has been a act of misconduct which on the face of things would entitle an employer to dismiss.