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Kerry Eastman

HR Advisor - Uckfield

14th June 2021

Unfairly dismissed after ‘foolish’ drug prank

Case Study: Manager unfairly dismissed after ‘foolish’ drug prank

Background

Mr Buchholz, a Technical Product Manager, had been employed by Geze, a company that supplies products, systems and services for door, window and safety technology, since 2006.

On 28 February 2020, the company’s offices underwent a routine deep clean carried out by a third-party contractor. During the clean, Ms Hughes, a cleaner, discovered a small clear plastic bag containing white powder, two lines of loose powder and something that had been rolled into a “cylinder or straw-like” shape on Mr Buchholz’s desk.

Believing the white powder to be an illegal substance, Ms Hughes notified Geze’s Operations Director, Mr Marshall, who assured her that it was probably a joke, with the Health, Safety and Quality Manager agreeing that they knew Mr Buchholz was “playing silly sods”.

Ms Hughes proceeded to clean the desk, putting the powder into the bin, but Mr Marshall later decided to retrieve it and store it in a cupboard over the weekend. The following Monday, the police attended the company’s premises, tested the powder and confirmed that it was not drugs, but sherbet powder.

Mr Buchholz was unaware of the problems at work as he’d started a week’s holiday the day after he left the items on his desk. When he returned to the office, he found himself locked out of the company’s IT system and waiting an hour before being asked to attend a meeting with HR.

During the investigatory stages, the company interviewed two of Mr Buchholz’s colleagues who confirmed that another colleague had brought sherbet into the office which led to ‘banter’ when they spilt it, covering themselves in white powder. Mr Buchholz then decided to add to the ‘banter’ by decorating his desk with the powder and portraying ‘a drug-like’ scenario, forgetting that the company’s premises were due for a deep clean that weekend. Mr Buchholz stated that he’d had a stressful week and booked a week’s holiday at the last minute, leaving him keen to get away.

On 20 March 2020, following a disciplinary process, Mr Buchholz received a letter from the company terminating his employment which stated that his behaviour had risked damaging the company’s reputation. He appealed on the basis he felt he had been dismissed for something that was not intentional and for something that could potentially, but did not, happen. The appeal handler decided they could not overturn the dismissal.

Unfairly dismissed? Decision

Despite the company’s assertions that Mr Buchholz’s actions were intended to cause trouble and that he had an air of contempt for the company, the Tribunal ruled that he was unfairly dismissed as:

  • there were no reasonable grounds for the conclusion that Mr Buchholz had deliberately left the items for the cleaners to discover;
  • the sanction of dismissal was outside the ‘range of reasonable responses’; and
  • the company failed to follow a reasonable process as they did not appoint separate managers for the investigatory meeting and the disciplinary hearing.

The Tribunal did acknowledge that Mr Buchholz’s actions weren’t without blame and that his conduct was foolish, insensitive and uncooperative however, they did not agree that it warranted the loss of his job, rather it merited some form of warning.

Mr Buchholz’s basic and compensatory award were reduced by a third to take account of his conduct prior to his dismissal.

What does this mean in practice?

Employers should be cautious when handling disciplinary procedures, particularly where they feel something may amount to gross misconduct and ensure their disciplinary process is ACAS compliant and that separate people are appointed to handle each distinct stage.

Further, employers should be cautious when seeking to rely on potential reputational damage as a reason for dismissal, especially where the chances of the misconduct in question actually causing such damage are slim. Mitigating factors should always be taken into consideration before a final decision is made, such as length of service and disciplinary record.

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