Carr Gomm Scotland provides housing and social care services. In August 2008, Mr Sneddon, who was employed as a support worker, was appointed to the care team that provided support to a vulnerable adult with mental health problems. It was explained to Sneddon that the service user should be treated with respect at all times and that agitation should not be met with a technique known as 'mood matching'. A record of this discussion was made and signed by Sneddon and his manager. A code of conduct also prohibited verbal aggression and swearing.
In November 2008, two incidents took place that prompted Carr Gomm Scotland to commence disciplinary proceedings against Sneddon, the first witnessed by a colleague and the second by someone outside the organisation. In both, it was alleged that Sneddon had behaved in a threatening and aggressive manner towards the service user. Sneddon admitted the first incident but sought to justify it as mood matching. He denied the second incident.
Carr Gomm Scotland concluded that the second incident had occurred and dismissed Sneddon. He appealed but was unsuccessful and subsequently brought a claim for unfair dismissal at the employment tribunal.
The legal decisions
The tribunal found that the first incident alone was insufficient to justify Sneddon's dismissal, and that Carr Gomm Scotland did not have sufficient grounds to believe the second incident had occurred because it had not carried out a proper investigation. It upheld his claim of unfair dismissal and awarded him more than £27,000. However, Carr Gomm Scotland successfully appealed. The Employment Appeal Tribunal found that the original tribunal had misapplied the law by substituting its own view for that of the employer. It found that Carr Gomm Scotland was entitled to rely upon the witness's account of the second incident, combined with Sneddon's admission of the first incident and his attempt to justify it as mood matching. The appeal tribunal concluded that his behaviour constituted gross misconduct, that it was contrary to his employer's instructions and policies, and that dismissal was a response open to them.
Lessons for charities
All employees who have at least 12 months of service have the right not to be unfairly dismissed. The maximum award in such cases recently increased to £80,400. In order to defend a claim of unfair dismissal for misconduct, charities must demonstrate they believed the misconduct to have occurred, having carried out a reasonable investigation, that their response fell within the "reasonable band of responses" open to an employer and that they followed a fair procedure.
It is always useful if the employer can - as in this case - point to specific policies or instructions that the employee has breached. It is therefore advisable that charities set out required standards in writing and keep a record of them having been communicated to employees.
Victoria Willson is a solicitor at Levenes Employment, third sector specialists