The recent decision by a German court to reinstate an employee after he was dismissed for fondling another employee’s breasts made headlines last week (in the Daily Mail at least). Here we look at the facts of the case and how employers should deal with gross misconduct.
The facts of the case
The case involved a 37-year old mechanic who was sacked after fondling the cleaner in the garage where he worked. She immediately complained to his employer and the mechanic admitted the incident, saying it was a moment of madness. Despite apologising to the cleaning lady and promising not to do it again, as well as giving her a sum of money in compensation, the mechanic was dismissed for sexual harassment in the workplace.
The mechanic appealed through various courts until the case was heard in the Federal Labour Court in Erfurt – the court of last resort for employment cases in Germany. The judges ruled that while dismissal for repeat offences should result in dismissal, dismissal for a one-off offence was a step too far. Hearing that he had worked for the firm for 16 years and had never been in trouble, they decided that he should have been dealt with by way of the equivalent of a final written warning and ordered that the man be reinstated.
Statement of the Court
A statement released by the court said:
‘Sexual harassment in the workplace must not lead to the immediate termination of the offender’.
‘If unethical approaches actually entail a dismissal, it should depend always on the circumstances of the case.’
It is hard to see an employment tribunal in the UK reaching the same decision unless the correct disciplinary procedure had not been followed. This was a deliberate act of sexual assault with no mitigating circumstances.
Test to be applied
The test to be applied when considering unfair dismissal cases is whether the employer’s decision and the process in reaching that decision ‘falls within the range of reasonable responses open to the reasonable employer on the facts of the particular case’, as reiterated by the Employment Appeal Tribunal in its first case concerning the inappropriate use of social media recently. Unlawful discrimination or harassment is considered to be an act of gross misconduct and a criminal offence and the only conceivable way an employer could fail the ‘reasonable responses’ test would be if he had failed to carry out a proper investigation and so lost on technical grounds.
Correct procedure
The correct disciplinary procedure policy should state that no employee will be dismissed for a first breach of discipline except in the case of gross misconduct, when the penalty will be dismissal without notice or payment in lieu of notice. The employer still has a duty to conduct an investigation and be satisfied that gross misconduct has occurred before dismissing the employee. The employee then has the right to appeal within a certain number of days.
Disciplinary Procedure Policy
The formal 3-step disciplinary procedure is set out in the Clickdocs Disciplinary Procedure and Policy.
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