Three ex-employees of GlaxoSmithKline have won their case for unfair dismissal at the Employment Tribunal in Dundee.

The three ex-employees (James Heggie, David Galloway and Brian Russell) (“the Claimants”) were employed by Kitsons Environmental Europe Ltd, a specialist asbestos removal and thermal insulation company. Kitsons was sub-contracted to carry out maintenance work on the GlaxoSmithKline site in Montrose, Scotland.

In order to carry out their maintenance duties the three men would work on site during the week and would also perform non-maintenance duties at the weekend on an ad-hoc basis, as specified by the main contractor, Doosan Babcock. They would work on a “job and knock” basis where they were allowed to leave the work site once their duties had been completed. It was common practice for employees working on such a basis to claim more hours than they had actually worked – and common knowledge that they did so.

In February 2011 the Claimants were told that they were potential candidates for redundancy but were later assured that their positions were safe. However, later in February 2011 the security staff at GlaxoSmithKline became concerned that the three employees concerned were entering and exiting the site on such a frequent basis. They called Mr Livingstone (operations manager) into a meeting and informed him of this). Mr Livingstone subsequently requested an investigation and discovered that the hours that the employees claimed they were working did not measure up to the footage of them entering and exiting the site.

On this basis a further investigation was ordered and the three men were invited to an investigatory hearing by Kitson’s Human Resources department.  Accusations were made at this meeting of the Claimants leaving the site earlier than they had specified on their timesheets and being overpaid for hours they had not worked. They were not told prior to the investigatory hearing of the allegations and were subsequently invited to a disciplinary hearing and summarily dismissed for gross misconduct. They appealed their dismissals but were unsuccessful and later filed claims for unfair dismissal at the Employment Tribunal.

The Employment Tribunal upheld their claims, stating that “a reasonable employer would not have conducted matters with such haste”. One of the key reasons for the Tribunal’s decision was the involvement of Mr Livingstone in the investigation and disciplinary process – particularly the Tribunal’s belief that Mr Livingstone had attempted to drive through the dismissal with as much haste as possible and that he had pre-determined the outcome of the disciplinary hearing. Further, the fact that the process from the investigation to the dismissal had been rushed through in five days was indicative of unfairness, as was the fact that the manipulation of time sheets was a common and accepted practice which other employees had not been dismissed for.

Analysis

This case demonstrates that employers must inform employees of the allegations being made prior to an investigatory hearing. Further, employers should take care to ensure that potentially biased managers are not supervising the investigation and disciplinary procedures. Ideally, employers should try and allocate supervision of the investigation and disciplinary processes to different managers (if possible).

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