By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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In a ruling which makes clear that wise employers do not treat disciplinary hearings as mere formalities, a pastry chef who was dismissed after he used non-kosher jam to decorate a cake whilst working at a Jewish bakery has won compensation after a tribunal criticised the ‘cursory’ investigation of his alleged misconduct.
The worker, who had admitted using strawberry jam that had been bought at Tesco, was dismissed on grounds that his conduct was a gross infringement of religious rules that could have had serious consequences for his employer. However, an employment tribunal found that the circumstances of his dismissal had been unfair and amounted to victimisation within the meaning of the Equality Act 2003.
In dismissing the employer’s appeal against that decision, the Employment Appeal Tribunal (EAT) ruled that the findings were justified on the evidence and were not perverse. However, the employment tribunal, which had awarded the worker more than £35,000 damages, was directed to reconsider that sum in the light of the employer’s plea that the worker’s dismissal was in part due to his own fault.
The tribunal had found that the employer’s attitude to the worker ‘hardened’ after a previous dispute in which he had issued employment tribunal proceedings in respect of alleged wrongful deductions from his holiday pay and disability discrimination relating to a 10-month period during which he was off work suffering from sciatica.
Those proceedings were compromised. However, the worker continued to complain that reasonable adjustments were not being made to his duties to take account of his disability and that he had been viewed as a ‘problem employee’. The store manager had refused to believe that he was disabled and had told the tribunal: “If you can’t do what the job demands, you should get another job. It doesn’t make sense”.
Matters came to a head when a manager discovered a receipt for two non-kosher jars of strawberry jam from Tesco. The bakery operated in strict adherence to traditional Jewish Kedassia standards and the use of non-kosher ingredients could have had the catastrophic effect of its licence being revoked by a rabbi.
The worker admitted using the jam, knowing that it was not kosher, but denied having told a cleaner to buy the ingredient from Tesco. He said that he felt his employer was ‘simply waiting for him to do something wrong’. After an hour-long inquiry, the worker was directed to attend a disciplinary hearing and was dismissed three days later without any aspect of his defence having been investigated. An internal appeal against that decision was subsequently dismissed after a hearing which a manager had frankly admitted he ‘regarded as a formality’.
The employment tribunal upheld the worker’s case after commenting on the ‘very cursory nature’ of the investigation into the jam incident and the ‘flawed’ appeal procedure. The EAT could detect no error of law in the tribunal’s approach to liability issues but remitted the case to the tribunal for consideration of the employer’s arguments that the damages award should be reduced in the light of the worker’s ‘contributory fault’.