Employment Law – Update 1

RE-ENGAGEMENT AND RE-INSTATEMENT IN PRACTICE

Rachel Bermingham -v- Marks and Spencer Limited

In the Decision of Rachel Bermingham -v- Marks and Spencer Limited (the “Company”), the Employment Appeals Tribunal (the “Tribunal”) ordered the Company to re-engage its former employee from the date of the determination of the Tribunal. This effectively meant that the Claimant was put back into the position she held prior to the dismissal. The Tribunal also determined that her continuity of employment was preserved.

The Company had dismissed the Claimant because she purchased marked-down stock in breach of company policy.  The Tribunal determined that the dismissal was unfair as the investigation process followed by the Company was flawed.  The Tribunal did not award re-instatement in this case. It held that the Claimant’s own actions had contributed to her downfall in that she could have sought authorisation from her superiors before she carried out the actions that led to her dismissal but she chose not to.

The Tribunal held as follows:-

  1. The Claimant had not been given sufficient notice of the investigation meeting in circumstances where she received only one hour’s notice.
  2. The Company raised additional matters at the meeting which had not been set out in writing in advance to the Claimant prior to the meeting so the Claimant had no prior notice of them.
  3. The decision maker involved in the disciplinary meeting was not objective as there were pre-existing issues between him and the Claimant. The Claimant made certain allegations concerning this individual in the context of the handling of her maternity leave and also in relation to payment negotiations.
  4. The appeal carried out by the Company was not an independent and objective review of the matter.