Unfair For Small Employer To Have One Person In Charge Of Whole Disciplinary Process

A family-run business made the classic mistake of having one person act as “judge, jury and executioner” in a disciplinary procedure against an employee accused of misconduct.

Background

Ms Henshaw worked as a part-time receptionist in a tanning salon. An 18-year-old girl asked to use one of the sunbeds. The salon has a procedure whereby new customers have to fill in a self-analysis form to determine how many minutes they can spend on a sunbed, up to a maximum of eight minutes. Time on the sunbeds is allocated using two-minute tokens. The form also comes with literature on the dangers of using sunbeds and contains a disclaimer, which the employment tribunal later acknowledged was a regulatory requirement for the salon’s licence and a requirement of its insurers.

The teenage girl was a new customer so she should have been asked to fill in a form. Ms Henshaw did not ask her to fill in a form, something that she admitted she knew she was supposed to do. She said that this was a “one-off incident” and that she was normally careful to have the forms signed. Her explanation was that it was a slow day during which she felt tired and lethargic, and that the customer seemed to know what she wanted because she had asked specifically for six minutes on the sunbed.

Brenda Shirley, one of the directors of the company, asked the customer afterwards if she had enjoyed the session and, during the course of the conversation, formed some concerns. Brenda Shirley was concerned because the customer looked quite young (a law was due to come into force banning individuals under 18 from using tanning beds) and she had a very pale complexion. It emerged from the conversation that the customer had not been asked to sign the required form.

Brenda Shirley tasked her daughter, Linda Shirley (a former director of the company), with carrying out an investigation. Ms Henshaw was invited to an informal investigatory meeting (attended by Brenda Shirley and her daughter Linda) at which the view was formed that she should be suspended pending a formal investigation. A formal investigatory meeting was held a few days later, which was also attended by Ms Pepper, Ms Henshaw’s line manager. At this meeting, Ms Pepper complained that she had been harassed by Ms Henshaw about the allegations made against her and that Ms Henshaw’s boyfriend was “not particularly cordial to say the least” when he came to collect her wages while she was suspended.

Ms Henshaw was sent a letter inviting her to a disciplinary hearing, with the allegation made that she had failed to comply with the procedures relating to the disclaimer and skin-analysis form. The disciplinary hearing was rescheduled several times as Ms Henshaw was signed off sick and was then away on holiday, but it eventually went ahead in her absence. By this point, Ms Henshaw had indicated to the company that she would not be attending anyway because of the company’s refusal to allow her to be accompanied by her boyfriend, who had earlier caused trouble when he had gone to collect her wages while she was suspended.

The disciplinary hearing (presided over by Linda Shirley) resulted in the decision to dismiss Ms Henshaw for gross misconduct. She was informed in writing of the decision to dismiss her for “adverse and unreasonable behaviour in the workplace”, with the company noting that her failure to follow the rules on the hire and use of sunbeds placed it at risk of prosecution and closure. It seems that her boyfriend’s behaviour also played a part in the decision to dismiss. Ms Henshaw elected not to appeal, although changed her mind about a month later, which was well outside the company’s five-day time limit for submitting an appeal after the original decision.

The Employment Tribunal Decision

The employment tribunal found that the company had breached the ACAS Code of Practice on disciplinary and grievance procedures by having Linda Shirley undertake both the investigation and disciplinary hearing. It had no doubt that, had Ms Henshaw appealed in time, Linda Shirley would have taken on the appeal stage too. The tribunal described her as Ms Henshaw’s “judge, jury and executioner”. As well as being contrary to the spirit of the ACAS code, this was also in breach of the company’s own disciplinary procedure. While the tanning salon is a small employer, there was no reason why Ms Henshaw’s line manager, Ms Pepper, could not have conducted the investigatory stage.

While the employment tribunal felt that the company had a potentially fair reason for dismissing Ms Henshaw, it believed that the company had wrongly taken into account Ms Henshaw’s alleged previous “bad attitude”, which she had never been formally warned about. In addition, the tribunal thought that the employer had inappropriately taken into account the poor behaviour of Ms Henshaw’s boyfriend, rather than concentrating on the matter in hand (her alleged misconduct).

The employment tribunal also took into account evidence that the company’s rules on monitoring the use of sunbeds were lax, and that it had overreacted in disciplining Ms Henshaw. The disproportionate severity with which it viewed Ms Henshaw’s actions took the dismissal outside the range of reasonable responses.

However, the employment tribunal went on to find that Ms Henshaw had contributed to her dismissal. She knew the importance of requiring customers to fill in the necessary paperwork in a job that she had done for five years. Her tiredness on the day in question was not an excuse. Her compensation was therefore reduced to zero.

Practical Tips

Where practicable, an investigation and any subsequent disciplinary hearing should be carried out by different people.

It is not normally appropriate for an employer to take into account the bad behaviour of a third party who gets involved in a workplace dispute, but who has nothing to do with the original allegations (typically, a relative, friend or partner). The third party’s actions may be outside the employee’s control.

Case ref: Henshaw v Touch Tanning Ltd ET/2605284/09

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