Hospital security guard unfairly dismissed over grievance dispute and row over out-of-hours car park use

8 Jan 2019 By Maggie Baska

Employee’s dismissal was ‘outside the range of reasonable response’, tribunal rules

A hospital security officer was unfairly dismissed after lodging a grievance which his employer said was made in ‘bad faith’, a tribunal has ruled.

Leeds employment tribunal ruled Mr M Brough’s dismissal was “outside the range of reasonable responses” after his employer failed to properly investigate issues he raised as a workplace dispute escalated into a collective grievance.

The claimant was also accused of gross misconduct for unauthorised use of the workplace car park, however the judge ruled because he had been verbally told by his line manager it was OK to use the facility after hours, and because it had been common practice to do so, no reasonable employer would have dismissed him for this action.

Brough began work at Sheffield Teaching Hospitals NHS Trust as a full-time security officer in January 2012 and was based at the Royal Hallamshire Hospital. 

He emailed the trust’s chief nurse on behalf of a security officer working at the site in January 2016, concerning “difficulties” which had arisen in the department. He said security officers “had lost trust in management”. 

The concerns were passed on to Mr Gwilliam in the HR department, who met with Brough that month. Gwilliam sent an email on 5 February summarising the conversation and explained the officers “should not go straight to executive colleagues but should use the appropriate workforce policy”.

The officers went on to contact their trade union and raised a collective grievance about their treatment, signed by seven individuals, but written by Brough.

In late July 2016, a complaint was made that Brough and a colleague had failed to escort a doctor from the porter’s lodge to residential accommodation. The assistant security manager spoke with Brough on 26 July and decided to issue him with “written advice that he must comply with the security officer’s job description”.

However, the tribunal found this advice was “not issued to [Brough] until he raised a concern about this at a much later stage”, and the copy shown to the tribunal was dated 17 January 2017.

The hospital instructed an independent HR consultant to investigate the grievance. He interviewed managers and some of the complainants in October 2016. After initial meetings, all the individuals withdrew from the grievance, with Brough the last to do so.

The consultant suggested the trust consider “where any further action should be taken” as a result of the grievance being lodged and then withdrawn. He cited provisions in the Grievance and dispute policy and Acceptable behaviour at work policy suggesting that where grievances or complaints were found to have been made maliciously or in bad faith this would be treated as potential gross misconduct.

But the judge found the consultant “had not investigated the grievance, made findings of fact and determined it had been made maliciously or in bad faith”. He had “simply conducted some initial interviews”.

Brough was subsequently suspended after a project manager was appointed to carry out an investigation and concluded it was unclear whether his complaint had been brought in bad faith.

The manager invited Brough to further meetings, and the notes of these meetings “do not record her going through with him the substance of the underlying complaints or the evidence relating to those”, the tribunal heard.

She also did not show him notes of interviews with other individuals involved in another disciplinary proceeding which related to Brough’s case, or further evidence from the grievance investigation.

She wrote to Brough on 23 January 2017 to say the collective grievance “had been submitted in bad faith and should be considered as a disciplinary matter”.

A disciplinary hearing took place on 3 March 2017, and Brough’s line manager, Mr O’Regan, said Brough’s actions amounted to gross misconduct. His decision was confirmed in a letter dated 20 March 2017, and a disciplinary panel decided to dismiss Brough with immediate effect.

But the tribunal found O’Regan did not explain “what findings of misconduct he had made”, did not “explain what sanctions he had considered” or ask Brough about mitigating circumstances.

Brough appealed the decision but declined to attend a subsequent hearing “in view of the totally unacceptable timeframes”.

Judge Davies said the matters were “outside the range of what was reasonable in terms of investigation, grounds for belief and procedure” and awarded Brough £10,990 for his unfair dismissal.

Regarding the claimant’s use of the car park, the judge said: “[Brough] was not culpable in parking out of hours in the underground car park, because he was told to do so by his manager and his managers unofficially condoned it.

“No reasonable employer would dismiss an employee for doing something that he had been specifically told to do when he started work, that had been effectively condoned by his line managers, that had been done for years without issue and in respect of which no warning had been given.”

Croner associate director Paul Holcroft said the decision was a useful reminder of how a tribunal will examine the dismissal process in detail to determine how the events occurred.

“When faced with a similarly complex situation, such as considering historic events and collating large amounts of documentary information, the learning point for HR is to take a systematic and logical approach,” Holcroft said.

Alan Lewis, partner at Irwin Mitchell, said the case highlighted the need for employers to carry out “honest appraisals” of difficult situations.

“To some extent, leave no stone unturned,” Lewis said. “I think a common error during the disciplinary process is that other information may come to light during the investigation, and employers don’t go that extra step to bring the employee back in and show them new information.”

Brough could not be contacted for comment. 

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