Is it unfair to dismiss a manager who allegedly stretched his lunch break to watch sport?
It is Boxing Day 2011 and the Scarlets are playing a home match against the Ospreys, a top of the table clash. Shaun Mackey, a Scarlets fan and store manager at the DSG Retail’s Llanelli store, which is within walking distance of the Ospreys’ home stadium, exits the store through the warehouse door at the rear to attend the match. Boxing Day is the employer’s busiest trading day and all members of staff are required to work. At 14.04 CCTV footage shows Mackey leaving the store, returning at 15.57. The game, which the Scarlets win 22-14, commenced at 14.05.
Investigation
At investigatory and disciplinary hearings, Mackey asserted that he had been present at the match for the duration of his one hour lunch break only, not for the whole match. When shown the CCTV footage, Mackey claimed he had spoken to two colleagues in the warehouse prior to leaving and making his way to the match, and that he also spoke to two colleagues when he returned to the warehouse before entering the store, and so had not been absent for two hours, as the employer claimed. However, none of the four witnesses supported his version of events.
Dismissal
The employer dismissed him. It was the employer’s reasonable belief that Mackey left the store for almost two hours, based on the CCTV footage and witness evidence, and this brought his integrity into question. Furthermore, he had failed to adhere to the company’s strict security rules in leaving the store via the warehouse. Finally, leaving the store on the busiest trading day represented a “serious neglect” of his duties. Mackey’s appeal against dismissal failed and he submitted an employment tribunal claim for unfair dismissal.
Tribunal
When the case Mackey v DSG Retail was heard by an employment tribunal, the employer stated that Mackey’s dismissal was for a reason relating to conduct. The tribunal, sitting in Cardiff, found Mackey had been unfairly dismissed. It decided the main reason for his dismissal was not because he had neglected his duties, but because the employer believed he had lied. The employment tribunal ruled that the employer ceased to have trust and confidence in Mackey’s ability as a store manager and that “the Respondent has [therefore] failed to show that the dismissal was for conduct”. A very strange decision. Equally surprisingly, the tribunal ruled that the sanction of dismissal was not within the range of reasonable responses. The employer, unsurprisingly, appealed.
EAT
In a triumph for common sense, the Employment Appeal Tribunal disagreed with the tribunal’s reasoning and referred to section 98 of the Employment Rights Act 1996, which requires that a reason for dismissal must relate “to the conduct of the employee”. It was entirely possible that the employer had lost trust and confidence in the employee due to his conduct. A tribunal cannot, and should not, substitute its view for that of the employer, and it clearly did so here. The EAT also held that finding that Mackey had lied about his movements on Boxing Day 2011 was clearly a conclusion open to a “reasonable employer based on the material the employer had”. For these reasons, the EAT ruled that the tribunal had erred in its approach and, therefore, the finding of unfair dismissal could not stand.
The case will now be remitted to a different employment tribunal.
Comment
In a way, there are more lessons for tribunals than employers here, but the case shows the importance of having a robust disciplinary process, without which the employer would not have won its appeal. However, this is scant consolation as the organisation has effectively had to pay three times to get the right result (assuming the new tribunal does find in its favour, of course).
Joseph Lappin is a trainee and Paul Mander is a partner and head of employment at Penningtons
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