BT ran a Teams chat facility for its Dundee call centre staff. Ms Miller, a manager with 18 years’ service, used and tolerated humour to diffuse stress. Mr Khokhar, a customer advisor, had similarly long service and evidently nursed a similar sense of humour.
One of their colleagues engaged with the Teams chat, and expressed a desire – we may surely reasonably conclude a figurative one? – “to boot [another colleague] full force” in a rather painful place. Ms Miller responded “doo it” (sic). Mr Khokhar contributed to the discussion with a plea for “the good old days where you can belt a lassie for being lippy”, leading Ms Miller to respond “I can”.
Did this justify their dismissals for gross misconduct? What did the employment tribunal think?
Let us ask initially whether the hapless colleague threatened with the boot made a complaint. Evidently not. Indeed she was not a member of that Teams chat group, and there was no evidence that she had ever heard about those exchanges. They only came to the accidental attention of BT’s corporate investigations team three months later. Oblivious to context, the investigators asked for an assessment as to whether there was a misconduct case to answer.
Despite the lack of any need to preserve evidence or diffuse a heated situation, Mr Khokhar was immediately suspended and fast tracked down a gross misconduct route. His disciplinary hearing lasted 18 minutes. Ms Miller’s treatment was scarcely different, her disciplinary hearing being 9 minutes longer. In both cases, BT invoked “serious breach of our Standards of Behaviour Policy”, “serious misuse of our systems” and its “zero tolerance policy”. It evidently mattered not that BT had had no complaint from the notionally affected colleague at all.
The tribunal took note of the fact that neither claimant was allowed to put their side of the story, or add background context, before the misconduct charges were laid. There was evidence of a closed mind approach. The disciplinary officers had not shown any sign of considering other remedies. The appeal officers had predetermined the outcomes. The first test for a fair misconduct dismissal – honest belief in the claimants’ misconduct – was not met. Had it been necessary to consider reasonable grounds for the belief and whether the investigation was sufficient, there would have been equivalent failures. The context and culture of the Teams chat was simply ignored.
Notably, the tribunal declined to reduce any of the claimants’ respective awards, a combined total just short of £60,000, by reference to contributory fault. Their conduct “was not sufficient to amount to culpable and blameworthy” so as to render a reduction just and equitable.
This appears to be very much one of those cases where an outside view, prior to a disciplinary decision, would have saved the employer thousands of pounds and a great deal of time spent on tribunal defence. A zero tolerance policy may sometimes be appropriate, but it should never be allowed to generate an agenda driven dismissal.
Do you have a similar situation? Would a second opinion be worth taking before it’s too late? Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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