Tribunal Report: Allegations of misconduct must be pursued with care

A recent case highlights why charities should double-check their disciplinary policies when acting against staff for gross misconduct, says Victoria Willson

Victoria Willson
Victoria Willson

The Employment Appeal Tribunal's judgment in Ajayi v The Apuldram Centre illustrates the importance of conducting proper investigations into allegations of misconduct.

The story

The Apuldram Centre is a registered charity providing day-to-day care for adults with learning disabilities. It employed Mrs Ajayi, who is of black African origin, as a part-time support worker.

It was alleged that Mrs Ajayi claimed and received payment for hours that she had not worked.

Disciplinary proceedings began, as a result of which, on 25 November 2009, she was dismissed without notice for gross misconduct. Ajayi did not appeal against her dismissal but subsequently brought claims in the Employment Tribunal for unfair dismissal, automatic unfair dismissal (later withdrawn), wrongful dismissal (for notice or pay in lieu of notice), unpaid holiday pay (later withdrawn), direct race discrimination and victimisation.

Ajayi's claim of race discrimination was made on the basis that the charity, when considering the allegations against her, had misinterpreted a log entry she wrote because of difficulties in her written English and that it treated her less favourably than a hypothetical comparator of a different race. She also claimed that a service user had made a potentially discriminatory comment, about which she had complained.

As a result, Ajayi claimed, she was dismissed and not paid her notice.

The legal decisions

The tribunal found that the charity had not conducted an adequate investigation and therefore her dismissal was procedurally unfair. In light of the charity's disciplinary policy, which provided for notice or pay in lieu of notice in cases of gross misconduct, her wrongful dismissal claim also succeeded. Ajayi was awarded about £1,500 in compensation, after the tribunal had reduced the unfair dismissal element by 20 per cent for contributory conduct on her part and a further 10 per cent for her failure to appeal against her dismissal.

The tribunal found there was no connection between the charity's treatment of Ajayi and her race, or her complaint about a service user, so her claims of race discrimination and victimisation failed.

Ajayi appealed against the tribunal's findings and its decision to reduce her compensation, although the latter element of the appeal was not pursued because the sums were too small. The Employment Appeal Tribunal upheld the earlier decision on Ajayi's claims of discrimination and victimisation. Ajayi did not pursue her other grounds of appeal.

Lessons for charities

The case highlights the importance of conducting thorough investigations into claims of misconduct. Charities should follow their own procedures and the Acas Code of Practice, documenting their findings at each stage.

The law permits dismissal without notice (or pay in lieu of notice) for gross misconduct: but charities should be aware that if they have a policy that says otherwise - as in this case - the tribunal could award compensation for wrongful dismissal.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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