After leaving lines of sherbet powder and rolled up paper at his workstation to imitate the use of illegal drugs, a dismissed technology supply manager was branded ‘foolish and insensitive’ by the employment tribunal. However, upon investigation it was found that the prank did not warrant the loss of his job, and the manager’s claim for unfair dismissal was a success.

The incident was brought to the company’s attention by an external cleaning team, who raised concerns about finding a clear bag of white powder on the premises. Despite a director claiming that this was “probably a prank” due to who was involved, the manager (Mr Buchholz) was invited to attend a meeting with HR.

At the meeting, it was found that the sherbet was brought to work by a colleague, who had spilled it over themselves during the workday. This led to ongoing jokes amongst Mr Buchholz’ team, who then decided to use the remaining sherbet to carry out the prank.

A potential for reputational damage

By imitating the use of illegal drugs in the workplace, many senior managers felt that Mr Buchholz was bringing company policy into disrepute. This was supported by the argument that such behaviour had a potential to cause significant reputational damage, as an image of the prank could have easily been shared on social media.

The HR meeting also concluded that the prank had been left intentionally for the cleaners to discover, leading to another instance of external reputational damage. Mr Buchholz decided to appeal on the grounds that he was dismissed for unintentional behaviour.

Why was the unfair dismissal claim successful?

After hearing the case in the employment tribunal, the judge ruled that no reasonable employer should see this form of conduct as justification for dismissal.

This decision was reached because:

  • No reasonable grounds were presented to suggest that the items were left intentionally for the cleaners to discover
  • The sanction (dismissal) was outside the band of reasonable responses to this behaviour
  • There was a failure to follow a reasonable process, as the same person was both the investigating and disciplining manager

The judge added that the ‘foolish and insensitive’ behaviour of Mr Buchholz could have been addressed with a warning rather than dismissal.

What can employers learn from this case?

The success of Mr Buchholz’ unfair dismissal claim is a timely reminder that a proper investigation must be undertaken into any similar instances of alleged misconduct. This investigation should always be wholly separate from the disciplinary process, with a different individual in charge of each section.

Furthermore, employers must also be sure that the behaviour in question can genuinely be considered gross misconduct. This is typically classed as a major issue which can cause palpable damage to the business.

For incidents where reputational damage is possible but the chances are fairly remote, the employer will not always have the ability to take the action they wish, and this may include dismissal. To avoid a situation like this case, seeking expert advice at an early stage is strongly recommended.

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