Case study: Gross misconduct can still result in an unfair dismissal

The case of Harvey v Vista Hotels involved an unfair dismissal claim.

Mr Harvey worked as a head chef for Vista Hotels in the Channel Islands. During a night off work, Mr Harvey had a heated argument with his girlfriend and showed aggression when another person stepped in to help.

When the police arrived on the scene they were attacked by Mr Harvey who broke one officer’s arm, bit another on the leg and spat blood at them.

As a consequence, he was arrested and imprisoned for 18 months for grievous bodily harm. Whilst in prison, Mr Harvey was dismissed by the hotel but he then claimed that the dismissal was unfair as no procedure was followed.

OUTCOME: The Guernsey employment and discrimination tribunal found that the chef’s actions were a potentially fair reason for dismissal on grounds of misconduct. However, they criticised the company for failing to undergo the proper procedure.

There was no attempt to interview Mr Harvey about his version of events, speak to any witness or make a record of the night’s events.

The employee only learned of his dismissal six months after the arrest and was given no right of appeal. The employer claimed to have sent a dismissal letter while Mr Harvey was in prison but no copy of this letter was located.

As a result, Mr Harvey was awarded £11,000 for unfair dismissal. The tribunal stated: “The tribunal was persuaded that the complete absence of a disciplinary process with no right of appeal did not fall within the band of reasonable responses open to an employer in justifying the fairness of a summary dismissal on the grounds of gross misconduct.”

Given the employee’s conduct, the decision seems harsh with the employer believing that Mr Harvey had been rewarded for his crimes. This ruling highlights the importance of employers ensuring that they follow a fair procedure, even in cases of clear gross misconduct.

The Acas Code of Practice on disciplinary and grievance procedures advises:

  • Issues should be dealt with promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions
  • Act consistently
  • Employers should carry out any necessary investigations, to establish the facts of the case
  • Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made
  • Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting
  • Employers should allow an employee to appeal against any formal decision made

A tribunal can increase the award given by up to 25 per cent if the Acas code of conduct is not followed.

In this case, the hotel acted with a total disregard for their disciplinary procedure. They should have made some attempt to carry out an investigation and should have contacted Mr Harvey in prison to explain their dismissal decision, giving him the opportunity to appeal the decision.

Download our factsheet on the disciplinary process here