In the case of Shah v FoodHub Ltd, the Employment Tribunal had to consider whether an employee was unfairly dismissed after they were found to have been working from abroad without permission.
Facts
The employee worked for the employer as a sales manager after receiving a promotion. The employee’s probation period for the promotion was extended after concerns were raised with the amount of time he was spending working in the field.
It was then discovered that the employee had been working remotely from Egypt, where his family lived, without being on approved annual leave. Data from the laptop suggested this had been going on for several weeks, but the employee claimed this was inaccurate.
Additionally, around the same time, the business changed their company car policy and required employees to purchase their own car to replace their company lease car. It was found that the employee had not done so and was given two weeks to rectify it.
The employer was ready to suspend the employee for failing to achieve this but when they went to do so, the employee informed them that he had secured a vehicle. Instead, he was issued a letter warning him of disciplinary consequences if he did not spend four days a week working in the field.
A few months later, when reviewing the employee’s expenses, the employer found they were far lower than the rest of the team, when they were expected to be much higher.
The employer approached the employee suggesting that the expenses showed he had only travelled a handful of times in the previous three months. The employee was summarily dismissed for gross misconduct for “stealing money from the company” and “illegitimately taking a salary”.
Following this, the employer was advised that they should have followed a correct process to dismiss. The employee appealed the decision.
At the appeal, the decision was overturned due to the company’s failure to follow the correct process. He was, however, suspended whilst it was investigated further.
Following the investigation, in which the employee agreed he had been working in Egypt and provide explanations, he was dismissed for a second time.
The employee raised a claim for unfair dismissal.
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Employment Tribunal (ET)
Whilst the tribunal found that there were “reasonable grounds” to support the employer’s belief that the employee was guilty of the alleged misconduct, they found the dismissal was unfair.
This was largely due to the failings in the disciplinary process, i.e summarily dismissing without an investigation or disciplinary. However, the tribunal noted that the employer knew the first dismissal would be likely to be found unfair and then set out to orchestrate a process to make it seem otherwise but achieve the same result.
The second dismissing manager had only been with the business for a few weeks, and the tribunal felt they would feel obliged to uphold the original decision.
The tribunal also pointed out that the investigating manager was only looking for evidence to support the allegations rather than carrying out a fair investigation process. The tribunal awarded £61,419.
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