A technical product manager who set up lines of sherbet powder and a rolled up piece of paper on his desk to look like drugs was unfairly dismissed, a tribunal has ruled.
The tribunal found that despite other employees recognising the prank – which was discovered by an external cleaning team – as Mr Buchholz “playing silly sods”, senior management felt it had been left deliberately for the cleaners and had the potential to bring the company into disrepute.
However, the judge ruled that “no reasonable employer” would have decided the conduct merited dismissal.
- Supermarket caretaker who showed off swastika tattoo to colleagues was unfairly dismissed, tribunal rules
- Manager with cancer fired after steroids altered his behaviour awarded £2.5m for unfair dismissal
- Bus driver sacked after knocking cyclist off bike loses unfair dismissal claim
The remote tribunal heard that Buchholz had worked for Geze, a company that supplies products, systems and services related to door, window and safety technology, for 14 years before his dismissal on 6 April 2020.
On 28 February 2020, Geze’s offices were undergoing a routine deep clean, conducted by its third-party contractor.
That evening one of the cleaning company’s managers, Ms Hughes, came across a desk which, she told the tribunal, had a small clear plastic bag containing white powder, two lines of loose powder and something that had been rolled into a “cylinder or straw-like” shape.
Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter
She showed the desk to operations director Mr Marshall, and he assured her that “knowing whose desk it was [meaning Buchholz’s], it was probably a joke”. This was corroborated by the health, safety and quality manager, who also spoke to Hughes and told her they knew it was Buchholz “playing silly sods”.
Hughes cleared the powder away but Marshall decided to retrieve it from the bin and lock it in a cupboard over the weekend. On Monday morning, the police attended the office to test the powder and confirmed it was not drugs but sherbet powder.
Buchholz, who was on a week’s holiday starting the day after he left the items on his desk, had no idea about the problems at work. He told the tribunal that when he returned to the office he found he was “locked out” of the IT system and had to wait an hour to find out what was going on before being asked to attend a meeting with HR.
The tribunal said Buchholz was not “wholly cooperative or forthcoming” during the meeting with national sales manager Mr Iredale and an HR professional, but he did “consistently maintain” the items were not left intentionally for the cleaners to find.
Iredale went on to interview two members of staff who said a colleague had brought in sherbet to the office, which had “led to ‘banter’ in the team about the powder”, and that Buchholz may have forgotten about the items on his desk as he was working away from it on that day.
Iredale progressed the matter and invited Buchholz to a disciplinary hearing on 13 March. In a letter, he said the reason for this was the items on his desk were “portraying an illegal substance”, which breached company policy by causing damage to the company’s reputation and bringing it into disrepute.
The tribunal heard Buchholz explained that a colleague brought in the sherbet and he spilled it, covering himself in white powder, which led to jokes. He decided to set his desk up to make his team laugh but forgot about the deep clean. Buchholz also said he had a stressful week and booked the annual leave at the last minute, adding he was “keen to get away” and distracted.
However, Iredale drew Buchholz’s attention to the risk that this could have been put on social media, giving the impression Geze condoned drug use or had drugs in the building.
Iredale wrote to Buchholz on 20 March informing him of the decision to dismiss, because he “ran the risk of damaging the company’s reputation” with his prank. Iredale told the tribunal he concluded that Buchholz intended to leave his desk for the cleaners to find and felt he had an “air of contempt” for the company.
Buchholz appealed because he felt he had been dismissed for something that was not intentional and for the potential of something that could have but did not happen.
However, the director handling the appeal decided they could not overturn the dismissal, and told the tribunal they thought Buchholz left the items deliberately to “cause trouble”, which Judge Connolly said was “surprising”.
Connolly ruled that the dismissal was unfair because there was no reasonable grounds for the conclusion Buchholz left the items deliberately; the sanction was outside the range of reasonable responses for his conduct; and there was a failure to follow reasonable process as Iredale was the investigating and disciplining manager.
He said: “In terms of the range of blameworthiness, this conduct is properly categorised as foolish, insensitive, careless and uncooperative,” adding that it would have “merited some form of warning but not the loss of his job”.
Connolly also ruled that Buchholz’s basic award and compensatory award would be reduced by one third “by reason of his conduct prior to his dismissal applying”.
Richard Branson, associate and employment lawyer at Fieldfisher, said employers should be wary and conduct a proper investigation, even where something may appear to comfortably amount to gross misconduct.
“Employers should be careful not to rely on something that could cause reputational damage as a reason for dismissal, where the actual chances of it doing so are remote,” he said, adding that mitigating points should be “taken into consideration” before a final decision is made, such as the length of service and disciplinary record.
Geze has been contacted for comment. Buchholz could not be reached.