Earlier this month, the Employment Appeal Tribunal found that an employee caught snoring on the job was unfairly dismissed. Homer Simpson always managed to dodge the bullet when snoring on the job while looking after Springfield’s nuclear reactor. Unfortunately, it materialised in Goddard v Sunshine Hotel Limited, t/a Palm Court Hotel that the rules are a little stricter for hotel night porters.
Mr Goddard worked as a night porter and was caught by the hotel owner at 1.30am sleeping in a bed under a blanket, snoring loudly in a room just off the main lounge area of the hotel. Naturally, Mr Goddard was suspended.
Mr Goddard was shown on CCTV entering the room more than an hour before he was caught by the hotel owner.
Mr Goddard was invited to an 'investigation' meeting and did not provide a full explanation as to what he was doing in the room for over an hour. All that Mr Goddard said was he had a headache. The hotel concluded during the investigation meeting that Mr Goddard was sleeping from 12.10am to 1.30am having not seen him leave the room to the main hall on CCTV. He was dismissed at that meeting for gross misconduct. In essence it was not an investigation meeting but a disciplinary meeting. An employee should not be dismissed at an investigation meeting.
Mr Goddard appealed his dismissal. He said that he went on patrol through another side door not covered by CCTV and that he had a chronic migraine. Mr Goddard’s appeal was not upheld nor was there any further investigation.
The employment tribunal
Mr Goddard brought proceedings for unfair dismissal. The employment judge decided that there was a serious procedural failing because there was no investigation hearing.
Mr Goddard said during evidence that had a chronic migraine and only lay down for 15 minutes during a break before he was interrupted. Mr Goddard claimed to have continued his patrol for 45 minutes after entering the small room through another side door within the room. This was not investigated and the hotel failed to show that they had carried out a reasonable investigation. Mr Goddard was unfairly dismissed.
The hotel appealed this decision to the EAT on the basis that the employment judge had incorrectly decided that it was a basic employment right for an employee to attend an investigation hearing before a disciplinary hearing. The choice of wording in the judgment was confusing and implied that it was a basic employment right for an employee to be invited to an investigation meeting.
The EAT found that the employment judge was referring to an employment right that employers should carry out as much investigation into the matter as was reasonable in all circumstances of the case (this doesn’t always necessitate a meeting with the employee). The EAT agreed with the finding of unfair dismissal. It is well known to employment judges that an employer can fairly dismiss an employee where it can be established that the employer:
- had a genuine belief in the misconduct
- had reasonable grounds for believing that the employee was guilty of misconduct; and
- carried out as much investigation as was reasonable at the time they held that belief.
An employer will have to face an employee with the information regarding the misconduct eventually. This information can be presented during the investigatory process or at the disciplinary meeting. The ACAS Code states that employers should carry out necessary investigations to establish the facts of the case. In some cases, this will require an investigatory meeting, however, in others, evidence can be collated for use at a disciplinary hearing.
It is extremely important that an investigation takes place prior to any disciplinary action. A failure to investigate (even where the employee admits guilt) will be, in the vast majority of cases, unfair.
- Be aware of the distinction between investigatory meetings and disciplinary meetings, don’t jump to dismissal prematurely
- Where an employee admits guilt during an investigation meeting, employers should invite the employee to a disciplinary hearing to dismiss
- Look for evidence of innocence as well as guilt while investigating
- There is no basic right for an employee to attend an investigation meeting however investigation should be reasonable in the circumstances and follow existing disciplinary procedures
For help and advice with dismissals or employment law matters please speak to a member of the Blackadders Employment Team.