07841706203 louise@watersidehr.uk

A recent tribunal decision has ruled that a prank did not constitute gross misconduct and the employee was unfairly dismissed.

What was the case?

Mr Buchholz had worked for Geze, a company who 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, one of the cleaning company’s managers came across a desk which had a small clear plastic bag.  The bag contained white powder, two lines of loose powder and something that had been rolled into a cylinder or straw like shape and was believed to look like drugs.  This was shown to the Operations Director who stated that that knowing it was Mr Buchholz’s desk, it was probably a joke.  The Health, Safety and Quality Manager agreed.  The Police attended to test the powder and confirmed it was sherbet powder.

The employee, Mr Buchholz was on holiday at the time and when he returned to work found he had locked out of the IT system.  He then attended a meeting with HR where he was not forthcoming but did maintain the items were not left intentionally for the cleaner to find.  He was invited to a disciplinary hearing for causing damage to the company’s reputation and bringing it into disrepute.  During the meeting, he explained a colleague had bought in the sherbet and he had spilled it, which led to jokes.  Then he decided to set up his desk to make his colleagues laugh but had forgotten about the office being cleaned and booked a holiday at the last minute.

Mr Buchholz was dismissed as he ran the risk of damaging the Company’s reputation and it was concluded that he had intended to leave his desk for the cleaners to find.  Mr Buchholz appealed but the dismissal was upheld.

What were the tribunal’s findings?
  • That there were no reasonable grounds for the conclusion that Mr Buchholz left the prank out deliberately
  • Dismissal was not within the band of reasonable responses (a warning would have been appropriate)
  • Failure to follow a fair procedure as the same investigating and disciplinary manager was used
What does this mean for employers?

This is not a binding decision, but it does show that:

  • Employers should conduct a proper investigation
  • Reputational damage should not be used as a reason for dismissal where the actual chances of it doing so are remote
  • Other factors should be taken into account such as length of service and disciplinary record
  • You should ensure your response is reasonable in relation to the allegations made