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Employment Law Case Update: A fair dismissal can still be wrongful dismissal

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It is likely that as an employer you will be called upon to dismiss an employee, and it is imperative that you use a fair procedure to do so.  There can be situations however where even a fair procedure can still lead to wrongful dismissal; the case of Mr C Kerins v Barclays Bank UK plc illustrates this rare yet possible situation where an employee can be wrongfully dismissed and therefore entitled to compensation even if the disciplinary procedure was fair.

Mr Kerins, a Barclays employee of 38 years, was dismissed after a colleague with whom he had a close friendship with accused him of inappropriate behaviour at the office Christmas party in 2017.

The office party was held at a Casino in Milton Keynes and Mr Kerins and his colleague had both booked separate hotel rooms for after the party.

It was at the party that Mr Kerins apparently attempted to drug his colleague, referred to as A in the Employment Tribunal (ET), by putting codeine in her glass of wine. She became unwell and Mr Kerins escorted her to her hotel room and it was there that he allegedly approached her and kissed her on the cheek after she had asked him to leave.

Nearly a month after the party, A met with her manager and raised a complaint against Mr Kerins and reported his actions towards her at the party. Because of these actions, A no longer wanted to work with him, however she also did not want to raise a grievance.

Four months after the allegation, Mr Kerins was invited to attend an investigation regarding ‘potential misconduct on the evening of 8 December 2017’. He was suspended whilst further investigations were made.

During the investigatory meeting, he denied drugging his colleague and also denied all allegations that were made against him. He explained that A and himself had a close friendship and that the kiss was simply a goodnight kiss and nothing more. Despite this, the investigator concluded that Mr Kerins’ conduct was not in line with the code of conduct of the company and he was subsequently dismissed with immediate effect on the 24th August 2018.

Mr Kerins appealed the decision of his dismissal which resulted in the appeal manager dropping the allegation that he drugged A’s glass of wine, after the CCTV footage from the Casino showed that this did not happen. However, the appeal still upheld the dismissal.

Mr Kerins brought claims in the ET for unfair dismissal and wrongful dismissal. The Judge accepted Mr Kerins’ argument that he had brought codeine with him to take the morning after the party and it had accidently fallen out his pocket in A’s hotel room. Although Mr Kerins’ claim of unfair dismissal was dismissed, the Judge believed Mr Kerins when he argued that the kiss was not intentional and was in the context of a close friendship. The ET held that he had been wrongfully dismissed as his behaviour did not amount to gross misconduct. Despite the dismissal of the unfair dismissal claim, Barclays was ordered to pay Mr Kerins £12,282 in damages.

The Judge ruled that because Barclays followed a fair disciplinary procedure, their decision to dismiss Mr Kerins was reasonable in the circumstances. Despite this, the ET looked at Mr Kerins’ actions which led to his dismissal and found that because he did not attempt to drug A and that he had a close friendship with her, his actions were not deemed as misconduct.

This is therefore an unusual case where an employee’s unfair dismissal claim was dismissed despite his wrongful dismissed claim being upheld. This case illustrates the importance of an employer thoroughly investigating the reasons behind a dismissal and ensuring that these reasons are valid.

If you have any questions regarding this article, or you would like guidance on how to conduct a thorough and compliant dismissal process, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.