Tuesday, 07 December 2010 15:19

GROSS MISCONDUCT (DECEMBER 2010) - Urinating at work is a fair reason for dismissal

White_Van_Man

 An employee who needed to answer “a call of nature, stopped his van to do just that. His employer reacted by sacking him for gross misconduct. But what did the tribunal think? Was this a “reasonable response” or not?

Years on the road

Colin Woods had worked as a driver for the Home Delivery Network (HDN) for 13 years making sure that parcels made it to their destination on time. One day last year; whilst out and about, he needed a “comfort break”. As he was tight for time, he stopped his van, got out, stood behind the rear wheel and did what he needed to do.

No end there.

Now, you might think this was “problem solved” for Colin, but his day only got worse. A member of the public spotted Colin and was so offended by what she had seen that she took his van’s registration number and make a complaint to HDN. When Colin got back to the depot he was pulled in by his Manager who put the allegation to him.

It was me!

Colin admitted his actions, but justified them as an “emergency”. When HDN refused to accept this he said that drivers were put under so much pressure to complete their deliveries on time that what he had done was common practice. Plus, he had never been told he couldn’t do this. But HDN hadn’t received any complaints about other drivers - only Colin- so it felt that even if this were the case, then they must have been more discrete.

That’s disgusting

HDN’s biggest objection was that Colin’s solution to his predicament took place in the public gaze and right next to a vehicle with its name and company logo on it. This, it said, brought its name into “serious disrepute” and that amounted to gross misconduct. Colin’s long service was ended with him being sacked.

Unreasonable response

But Colin felt this was an over-reaction. After all, it’s not as though he’s the first person that’s needed to take this type of “evasive action”. So he claimed unfair dismissal, saying that HDN’s reaction was unreasonable. Now, you might feel a bit sorry for Colin, but the tribunal didn’t..

Or a criminal offence?

It felt HDN had acted fairly and said that: “Such action is clearly serious misconduct on the part of the employee, as well as a criminal offence. To doubt that it would have brought the firm into disrepute is short-sighted, as any reasonable individual must know that they should not urinate in a built up place in broad daylight”.

Good news.

This decision confirms that employers don’t have to “spoon-feed” their employees as to what could be gross misconduct – staff must use their common sense.

Tip 1. It didn’t matter that Colin hadn’t previously been told such behaviour would be viewed as gross misconduct. His actions were serious enough in themselves. However, it’s sensible to do this and “bringing the Company into disrepute” would have covered this scenario.

Tip 2. Where HDN got its approach absolutely right was in the way it took disciplinary action. It went through a full and proper investigation and could show that it had taken all the circumstances into account.

The tribunal felt this dismissal was fair for two reasons. Not only was the behaviour a criminal offence, but any “reasonable” employee should know it would bring their employer’s reputation into disrepute. You don’t have to forewarn staff about what you will deem to be gross misconduct, but it will help avoid misunderstandings.

Source and Ref: © 2010 Indicator Limited