A firefighter who was dismissed after calling a gay colleague ‘half a man’ has been awarded more than £12,000 due to the way his employer dismissed him.
Mr Staines made a claim for breach of contract and unfair dismissal after he was dismissed without notice in 2020. Prior to this, he had been given a final warning after making comments towards a female colleague and was told that any similar misconduct within 18 months could lead to dismissal.
Two months later, he was alleged to have made the following comments to a gay colleague: “How are you doing fella, well you’re not a fella, half a fella.” The colleague said this incident left him feeling ‘empty’ and interpreted it as a comment on his sexuality.
An ‘ambiguous’ disciplinary and delayed appeal
When being investigated by the organisation, Mr Staines claimed he did not use language that was intended to be homophobic, instead referring to the colleague’s height. However, the investigation decided that his colleague had reasonably interpreted the wording to have a homophobic connotation, therefore causing offence.
It was found that this incident, along with another involving comments to a female worker, were both in breach of the staff code of conduct. This led to Mr Staines being suspended.
After a delay due to lockdown restrictions, Mr Staines was invited to a disciplinary hearing in July 2020. The tribunal later found that the invitation letter sent to him was ‘ambiguous’, with it being unclear which allegations he was facing.
The fire service dismissed Mr Staines due to a lack of self-improvement after his previous warning, claiming also that he was unable to understand dignity at work. Mr Staines then submitted an appeal against the decision in August 2020, but his appeal was not heard until December.
Although the tribunal found that Mr Staines’ comments had been inappropriate and warranted dismissal, it decided that the employer was not entitled to dismiss him without notice. The tribunal also decided that the delay between the appeal submission and the hearing was unreasonable, which was in breach of the ACAS Code of Practice on disciplinary and grievance procedures.
Because of this breach, the tribunal ordered the fire service to pay Mr Staines £11,538 in lieu of notice and £625 in holiday pay. His claim for unfair dismissal was unsuccessful.
What can employers learn from this?
While the tribunal’s decision was that the dismissal of Mr Staines was warranted, this did not mean that the employer could action it without notice, as the comments made were not deemed gross misconduct.
In situations like this, it is crucial that employers understand the difference between misconduct and gross misconduct.
An act of misconduct can be defined as behaviour which is unacceptable in the workplace but minor in nature. Gross misconduct, on the other hand, is a major issue which can cause palpable damage to the business. In the case of the latter, the employee can lawfully be dismissed without notice.
Follow the ACAS Code of Practice to ensure that allegations are clear
As shown by this case, the tribunal can punish employers for adopting an ‘ambiguous’ approach when managing disciplinary issues.
In the ACAS Code of Practice, it is stated that the disciplinary notification should contain sufficient information about any alleged misconduct. There should also be reference to the possible consequences for the employee, as this allows them to prepare an answer for the case at a disciplinary meeting.
Furthermore, it is recommended that copies of any written evidence are provided with the disciplinary notification, which may include witness statements if available.
Ensure that appeals are handled without unreasonable delay
Finally, it is essential that employers avoid repeating the mistake in this case when it comes to handling an appeal.
If there is an unreasonable delay between the appeal being submitted and hearing taking place, the employer will be breaching the ACAS Code of Practice on disciplinary and grievance procedures.
Although delays can happen in these situations, ACAS states that employers must communicate this with the employee who has submitted the appeal, while doing everything they can to speed up the process.