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How far is too far when it comes to practical jokes in the workplace?

Jun 9, 2021

In the recent case of Mr D Buchholz v GEZE UK Limited, the Employment Tribunal ruled that a manager had been unfairly dismissed after a cleaning company found arranged lines of sherbet on his desk which looked like an illegal substance.

The Claimant admitted that he had been playing around with the sherbet as part of office ‘banter’ with his colleagues, but he did not intentionally leave this on his desk for the cleaners to find. The Respondent said that the Claimant’s actions risked bringing them into disrepute and therefore decided to dismiss him.

Case Facts

On 28 February 2020, the Respondent’s offices were deep cleaned by an outsourced cleaning company. During the clean, the cleaners found a small clear plastic bag containing white powder, two lines of powder and a rolled-up piece of paper on a desk. These items were disposed of after the Operations Director and cleaner agreed the set up was likely to be a joke. However, the Operations Director then wanted to be sure it was not anything illegal and requested the police to attend the office to test the powder and it was confirmed that the powder was sherbet powder, not drugs.

The Respondent took the matter seriously and undertook an investigation which included interviewing two members of staff. They both confirmed that the Claimant had brought sherbet into the office and was playing practical jokes with it. They both assumed that the Claimant had forgotten to clean up because he had worked away from his desk for the rest of the day. Further to the investigation, the Claimant was invited to a disciplinary hearing where he confirmed it was a joke and said he was so distracted, he forgot to clean up the sherbet later that day. He denied leaving it out intentionally for the cleaners to find and provided evidence to confirm he was away from his desk but accepted that it was neglectful of him to forget to clear it up.

The Respondent decided to discipline the Claimant and on 20 March 2020 made the decision to dismiss him. The reason for the dismissal was that the Claimant ‘ran the risk of damaging the company’s reputation’ in his actions because it could have been posted to social media. The Claimant appealed the outcome on the basis that the Respondent’s reputation was not damaged. He was unsuccessful in his appeal and subsequently issued a Tribunal claim.

During the Tribunal hearing, the dismissing officer said he formed the view that the Claimant had left the sherbet out deliberately for the cleaners to find and this was also a reason why they decided to dismiss him, although this was not referred to in the termination letter.

The Tribunal ruled that the dismissal was disproportionate to the conduct and was therefore unfair. In making this decision, the Tribunal considered no reputational damage had actually occurred to the Respondent, everyone involved had understood it to be a joke, the Claimant had no live warnings and the Respondent failed to consider a lesser sanction. It also ruled that a reasonable employer would not have concluded the items were left deliberately for the cleaners from the evidence available.

The Tribunal also noted that the Respondent failed to follow a reasonable process in maintaining a separation between the investigation and disciplinary manager.

Summary

This Judgment may come as a surprise to some, given the serious nature of the ‘joke’ and the potential adverse consequences it may have had. However, this case highlights that any disciplinary action taken by an employer must be reasonable in the circumstances and there must be actual damage or a high risk of damage to reputation. In this case, the Claimant’s conduct had no adverse consequences and therefore the dismissal was not considered reasonable. The Respondent failed to take a range of factors into account such as the Claimant’s fourteen years’ service and disciplinary record. He had apologised to the cleaner and the actual risk of reputational damage was very low given that everyone involved considered this was a joke.

In addition to the above, the Tribunal confirmed that a fair disciplinary process was not followed because the same person investigated the matter and was the disciplinary officer. Again, this serves as a useful reminder to employers that these functions should be two separate roles. An investigator should report the factual findings and decide whether the matter should proceed to a disciplinary hearing and a disciplinary officer should decide whether the evidence collated amounts to gross misconduct. If these roles are not separated, it may amount to another reason why the dismissal is unfair.

Given the attempts of the Respondent at the hearing to widen the reasons for dismissal outside of what was stated in the termination letter, it is vital that when dealing with a disciplinary hearing a careful note is taken of all the findings during the process and what considerations have been taken into account when deciding what action to take. Finally, employers should be careful when using reputational damage as a reason for dismissal.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

 

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

Chantelle DeFilippis

Chantelle DeFilippis

Solicitor, Employment Law

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