Dismissing an employee for gross misconduct is a very serious matter and that is why steps must be taken to ensure that the procedures followed are scrupulously fair. A football club's summary sacking of a long-serving lottery ticket salesman provided an instructive example of exactly how it should not be done (Hitchen v Bury Football Club Limited).

Throughout his 13 years of trusted service, the salesman had deducted commission from the cash he collected on ticket sales. Following a rebranding of the lottery, however, he was informed that his commission would in future be paid as part of his salary. He did not agree with the new system and, in the belief that it had not been finally adopted, continued to take his commission at source.

The club suspended him on the basis that he had deliberately ignored a lawful instruction and he was dismissed for purported gross misconduct four days later. His internal appeal against that decision failed.

In upholding his unfair dismissal claim, an Employment Tribunal found that he had been ambushed at the disciplinary hearing, to which he was summoned without prior notice. Although Section 10 of the Employment Relations Act 1999 gives employees and workers a legal right to be accompanied by a trade union representative or colleague at a disciplinary or grievance hearing (including any appeal hearings), he was not given that opportunity and was not informed in advance of the charge he faced.

The appeal was presided over by a manager who had been previously involved in the disciplinary process and who could in no sense be considered independent.

The club had sought to unilaterally change the salesman's employment contract and had proceeded on the assumption that, if he failed to cooperate, summary dismissal was the only option. No account had been taken of his flawless disciplinary record or the possibility of imposing a lesser sanction. The breaches of the Advisory, Conciliation and Arbitration Service Code of Practice on disciplinary and grievance procedures, which the manager who heard the appeal admitted he had not read, were numerous. The speed of the disciplinary process precluded the possibility of a reasonable investigation and meant that the salesman had no time to reflect.

The club was ordered to pay the salesman a total of £16,678 in compensation.

Contact Emma-Louise Hewitt on 0808 166 8860 or email e.hewitt@sydneymitchell.co.uk today for advice on handling any disciplinary or grievance matter.

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