How on earth could an investigator accept evidence of a witness saying that he saw the subject mouth a racist insult through his side rear view mirror?
Mr Benton, an LGV driver employed by TDG Chemical and a trade union representative, was dismissed for gross misconduct following an incident at the company’s depot. A colleague, Carl Ricketts, who was reversing his vehicle, claimed to have seen Mr Benton through his rear view mirror mouthing a racist insult directed at him as a black driver.
Mr Benton denied it. He admitted sounding his horn but said he had made no gestures, mouthed no words, and was not a racist.
The employer’s investigation consisted of an interview note taken by Mr Beattie and a written statement of around 50 words from Mr Ricketts. There was a “paucity of evidence”, no CCTV and no other witnesses.
At the disciplinary hearing, Mr Benton’s union representative asked to put questions to Mr Ricketts and was refused, management saying it “would not be the intention of the company to let that happen”. Mr Benton was dismissed.
The ET found the dismissal unfair and awarded £17,649.38. The EAT, dismissed the employer’s appeal.
The criticisms of the investigation centre on the gap between the gravity of the allegation and the thinness of the inquiry.
The EAT confirmed that the standard of investigation must “befit the gravity of the matter charged”, and that where dismissal would create “serious consequences for the future of an employee”, particular care must be given to the investigation.
The refusal to allow the union representative to question Mr Ricketts at the disciplinary hearing was, on that footing, “unfair, in the light of the paucity of evidence”. The point Mr Benton had taken from the outset, that Mr Ricketts might simply be mistaken about what he had seen, was precisely what the employer needed to probe.
“The inherent difficulties in such a case should have been apparent to the employer,” and indeed “the defects in the procedure were pointed out to the Respondent’s management during the disciplinary process”. The employer pressed on regardless.
TDG Chemical Ltd v Benton UKEAT/0166/10/DM
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