Historic Video: Immediate Dismissal or Prejudiced Mistake?

Nov 28, 2023

In a recent Employment Tribunal, a warehouse worker was found to have been unfairly dismissed after his employer dismissed him amid concerns that his employment could damage the company’s reputation. During the worker’s employment, it was discovered that he was in a video being confronted by two men, accusing the worker of travelling to meet an underaged girl. 

Despite no charges being filed against the warehouse worker, Gypsumtools terminated his employment, citing concerns over potential damage to the company’s reputation. The tribunal ruled that the dismissal was unfair, highlighting a failure to explore alternatives and inadequate legal inquiries by the company.

This case highlights the importance of employers undertaking thorough investigations and taking due care and consideration to ensure certainty when making decisions on conduct. An employer should not take any rash actions or make rash decisions and ensure fair treatment. 

Background

The 2016 video was only discovered in 2021 when a colleague Googled the worker’s name out of curiosity and the results returned the video. The colleague reported the video’s existence to the worker’s line manager and the matter was escalated and a meeting was convened the same day without prior notice to the employee. 

Although the worker had not disclosed the video’s existence earlier, he explained during a subsequent meeting that he had refrained from doing so on the advice of his lawyers, finding the matter too distressing to discuss.

Despite giving reasoning for the employer’s concerns and having a valid DBS certificate to prove no criminal charges or convictions, the meeting concluded with the worker having the choice of resigning or facing dismissal. The worker therefore filed a grievance complaining of work-related stress, anxiety and pressure among colleagues aware of the issue which had made it difficult to return to his role. 

Despite the claimant’s grievance highlighting the adverse impact on his mental well-being, HR dismissed the grievance and formally terminated the workers’ employment the following month.  HR justified the dismissal by citing a “fundamental and irretrievable breakdown in work relations” between the worker and his colleagues due to the worker’s actions.  HR also perceived the risk to reputational damage in continuing his employment and the breakdown in trust and confidence between the worker and the company to be additional justification. 

Decision

The Judge hearing the case criticised the decision to terminate the worker’s employment, emphasising that HR and the colleague who found the video had prematurely formed an opinion of guilt and that the same day meeting violated natural justice and the fundamental principles of fair treatment. 

The tribunal heard that the police had investigated the claims made in the video back in 2016, ultimately deciding not to press charges. Moreover, the claimant possessed a valid DBS certificate, affirming the absence of criminal charges or convictions. Despite these facts, the employer proceeded with the dismissal based on the perceived risk to the company’s reputation.

The Judge also highlighted HR’s failure to consider alternative options before dismissal, breaching the Acas code of practice and constituting a serious mishandling of the situation.  It was noted that no thought was given to the obvious first step in considering whether a temporary reorganisation would remove or mitigate reputational risk. 

The Judge held that the worker had not been prosecuted or found guilty of any offence and the evidence presented on the video did not amount to support a finding of blameworthy conduct.  During the HR investigation and later hearing, the worker asserted that the video had been deceptively edited, and he had actually been physically assaulted by the vigilantes who filmed it. One of the vigilantes had in fact since been arrested for forging evidence. 

The ruling resulted in the warehouse worker being awarded £21,449.93 in total compensation, emphasising the importance of fair treatment, thorough investigations, and due consideration of alternatives in employment decisions. The failure to do so, can be costly.

Learning Points

The Tribunal has set a clear message in relation to the investigation prior to dismissing employees and the importance of the context behind an act of misconduct.

This case serves as a powerful reminder to all employers on the risks associated with not considering the very particular circumstances of an issue. Additionally, the need for a thorough and timely investigation into a matter instead of taking an action at face value is key. It is always important to have comprehensive policies, procedures and training in place.

How we can help

This case has put a spotlight on understanding the facts, conducting an appropriate investigation and responding appropriately in matters of misconduct. It shows how carrying out further investigation properly could avoid a lengthy and costly Employment Tribunal process.

For further information, or to discuss the issues raised within this case, please ​contact us to speak to a member of our Employment Team.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Darren Smith

Darren Smith

Partner, Employment Law

Lucinda Cameron

Lucinda Cameron

Trainee Solicitor

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