An Employment Tribunal has recently ruled that an investigation, which resulted in a Manager of a Tesco Express store in Peterborough being dismissed for gross misconduct, was not properly conducted.
The decision to dismiss Shoaib Razaq on the grounds of bullying and harassment was taken after he was found to have ‘abused his position of trust’ by harassing a female employee and gifting them a vibrator as a ‘Secret Santa’ gift.
Whilst the Tribunal held the view that Razaq’s actions contributed to his dismissal, it was also acknowledged that the recipient recognised the gift was given in a ‘joking manner’. Further, other staff members were also found to have handed out sex toys and similar behaviours were reported to have taken place at other Tesco Express stores. Razaq accepted that his choice of gift was a ‘terrible decision’, although he alleged that he was the victim of a ‘witch hunt’.
Razaq’s subsequent claim for unfair dismissal and race discrimination was upheld by the Tribunal on the grounds that his employer failed to take ‘basic steps’ when investigating the allegations against him. It was found that there had been little concern for the precise allegations; rather the decision to dismiss was based on a ‘general sense’ that the alleged misconduct had occurred. It is possible that this view was formed on the basis that similar allegations had been raised previously, albeit these were denied by Razaq.
Ultimately, the Tribunal concluded that, irrespective of the validity of the disciplinary allegations, the employer in this case did not act reasonably when investigating the matter.
ACAS advises that employers must obtain as much information as they reasonably can about an employee’s alleged misconduct and to ensure that balanced evidence is obtained from all sides in order to satisfy themselves that there is a case to answer.
In cases such as this, employers would be wise to give consideration to organisational and/or team culture and whether factors or dynamics exist which have served to encourage certain behaviours and lead to them becoming implicitly accepted.
It is also important to consider the context in which alleged events occur and, where these have taken place in a social environment, whether the standards of behaviour expected of employees have been clearly articulated by the employer.
Where an employee demonstrates a level of insight into and/or remorse for their behaviour, employers should be able to evidence and rationalise the consideration and weight afforded to this.
Finally, where counter allegations of racism and/or victimisation are made, it is important for employers to fully consider and, if appropriate, investigate such matters to establish whether there is any merit in such claims.
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Author: Caroline Cleal, Lead Associate
