Dismissal for First Offence: Review of Adam Thomas Forster v McKees Farm Shop Limited

by Laura McManus

The Industrial Tribunal recently heard a case brought by Adam Thomas Forster against his former employers, McKees Farm Shop Limited. Mr Forster alleged he had been unfairly dismissed by the company. The Respondents resisted the claim, stating that the Claimant had been guilty of gross misconduct and was, therefore, dismissed. Mr Forster worked with the company on a full time basis from June 2013, and was promoted to the role of supervisor in July 2014. In his role as supervisor, Mr Forster’s daily start time alternated between 7.30am and 8.30am, depending on the needs of the business.

On 31st December 2015, Mr Forster was due to begin work at 7.30am. Mr Forster, in his claim form, said that he was approximately 12 minutes late to work. Later in the day, Mr McKee, a director in the Respondent Company, was aware that some work remained undone, and asked Mrs McMaster, the company’s book-keeper, to check what time Mr Forster arrived to work that morning. Mrs McMaster spoke with Mr Forster, and he informed her he was in work at 7.30am. Mr Forster was then called to Mr McKee’s office, who had viewed the CCTV footage and discovered Mr Forster had entered the building at 7.47am, some 17 minutes late. Mr McKee asked Mr Forster what time he arrived and Mr Forster said he was about 10 minutes late. Mr McKee then informed Mr Forster he had viewed the CCTV footage which showed him arriving 17 minutes late. Mr Forster did not give any explanation for his tardiness.

Mr Forster was advised that as he had been caught telling lies, and had admitted this, Mr McKee had no option but to suspend Mr Forster on full pay until further notice. Mr McKee reminded the Mr Forster of his position of trust as a supervisor and that his timekeeping had been “very disappointing”.

Mr Forster was invited to a disciplinary meeting on 5th January 2016 with another company director, Mrs McKee. Mrs McKee outlined to Mr Forster that he had been late 15 times over a 1 month period between November and December 2015. The “biggest disappointment” however was that the Claimant had lied when confronted on 31st December regarding his lateness that day. Mr Forster stated he was disappointed in the way in which he had been treated by the company, having worked for them for so long.

Mrs McKee wrote to Mr Forster by letter dated 14th January and informed him of her finding that he should be summarily dismissed on 31st December due to gross misconduct, namely his dishonesty. Mr Forster appealed against the decision to Mr McKee on 29th January 2016. Mr Forster argued that the decision to dismiss was procedurally unfair as he should have been disciplined at an earlier stage for his lateness and, effectively, he should be given a “second chance”. The decision to dismiss was upheld, and Mr Forster brought a claim to the Tribunal.

The Respondent put forward the case that Mr Forster had been repeatedly late for work and, when confronted, lied about how late he had been. The company argued that, as Mr Forster was a supervisor and therefore in a position of trust, his failure to tell the truth amounted to a breach of trust and confidence and he was thus guilty of gross misconduct.

The Tribunal considered the law relating to unfair dismissal as set out in the Employment Rights (Northern Ireland) Order 1996 and leading case law. The Tribunal also considered whether the response of the company was within “the range of reasonable options open to a reasonable employer”.

The Tribunal disagreed with Mr Forster’s suggestion that Mrs McKee should have undertaken a fuller investigation into the matter, stating “given the claimant eventually admitted his lateness having denied it twice, there was nothing more to be done, the matter was beyond dispute”.  When considering whether or not the decision to dismiss Mr Forster was correct, the Tribunal emphasised that “it is important that we avoid substituting our decision for that of the disciplining employer. We do, however, have to make a judgment as to whether or not the employer acted reasonably, bearing in mind that there is a range of reasonable options open to an employer in any given situation. The test is not whether we would have dismissed the claimant in this situation; the test is whether or not it was reasonable for the Respondent to do so.”

The Tribunal reiterated this in stating “the fact, however, that a different employer might have given the Claimant a second chance, does not of itself render the dismissal unfair”.

It was accepted that the decision to dismiss Mr Forster was within the range of reasonable responses and, therefore, was not unfair. The Court did, however, refer to this as a “borderline” case and stated “it may seem harsh to dismiss for a first offence, but…., where the act is one of gross misconduct, such as an act involving dishonesty, a single act of misconduct may be sufficient.”

The Tribunal went on to consider whether an employer had any firm indication that the employee was willing, or able, to change their behaviour and, to this end, the Tribunal noted Mr Forster’s responses to questions in the disciplinary meeting with Mrs McKee, and his statement that he was disappointed at the manner in which the company had treated him. They concluded;

“At the disciplinary meeting the claimant actually said that he was disappointed in the way he was being treated, rather than offering a heartfelt apology, which might have cut more ice with his employers.  The idea that the claimant was indignant about his treatment by the employer in the middle of a disciplinary meeting suggests a degree of arrogance, when the claimant might better have shown some remorse.  Unfortunately this attitude continued in the claimant’s manner and his approach to the tribunal hearing.  He was vague and evasive and it was clear that his initial claim form to the tribunal was misleading to say the least.”

Perhaps if a Claimant, in a similar situation, had displayed true remorse and apologised for his or her actions, but was dismissed nevertheless, the Tribunal might not be so accepting of such a decision.

The full judgement is available to view on the Industrial Tribunal’s website. https://www.employmenttribunalsni.co.uk/

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