Alerts

A few sherbets…

Mr Buchholz set up lines of sherbet powder on his desk at work with a small plastic bag and rolled up paper, resembling drug memorabilia, as a prank for his colleagues,. This was found by the cleaners. He was dismissed for reputational damage to the company.

Was he fairly dismissed?

Buchholz v Geze UK Limited

Mr Buchholz worked for Geze 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. During the clean up one of the cleaning company’s managers found 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 on a desk.

She showed the substance to the operations manager of Geze who assured her that he knew it was Mr Buchholz desk and it was probably a joke. The health and safety manager of Geze also said that it would just be Mr Buchholz “playing silly sods” as it was Mr Buchholz mentality to “play a silly joke”. However, the operations manager decided to retrieve the substance and lock it away and asked the police to attend to test that the substance. The police concluded the substance was not drugs and appeared to be sherbet powder.

Mr Buchholz was on a week’s holiday after he had left the sherbet powder on his desk as a joke and was not aware the matter was being investigated. When he returned, he was locked out of the company’s IT systems and told that his password had been changed. He had to wait an hour before he was called to a meeting with HR.

During the meeting Mr Buchholz was asked if he left anything on his desk before he went on holiday, he said other than his usual IT equipment, no. He was informed that the cleaners had found a bag and other items that looked like drugs on his desk. Mr Buchholz claimed he had no idea who had left them there. His answers were vague. He admitted to having sherbet on that day and that a bag may have split. He maintained that the items were not intentionally left for the cleaners to find. He asked for the cleaners details to apologise to them directly. Two other members of staff were interviewed at the same time who said that it was another colleague who had brought the sherbet in to the office as ‘banter’ and that Mr Buchholz may have forgotten about the items as he was not working at his desk on that day.

Mr Buchholz was invited to a disciplinary hearing for breaching company policy by causing damage to the company’s reputation and bringing it into disrepute as the items on his desk portrayed an illegal substance. During the hearing Mr Buchholz explained that it was banter between colleagues as he had spilled the sherbet on himself which led to jokes. He then decided to leave the items on his desk to make his colleagues laugh immediately following the spillage and had forgotten to clear it away. The manager leading the disciplinary reiterated to Mr Buchholz the risks of damaging the company’s reputation if this prank had been posted on social media as it gave the impression that drug use was condoned.

Mr Buchholz was dismissed because of the risks the prank caused in damaging the company’s reputation. Geze concluded that Buchholz intended to leave his desk for the cleaners to find. Mr Buchholz appealed the decision but the director handling the appeal did not overturn the decision agreeing that Mr Buchholz left the items on his desk deliberately to cause trouble.

Mr Buchholz brought a claim for unfair dismissal.

Decision

The tribunal found the dismissal unfair. It made particular reference to one manager’s recollection of events as he had initially thought that Mr Buchholz must be playing a prank but had then, surprisingly, concluded during the disciplinary hearing that Mr Buchholz had left the items to intentionally cause trouble and damage the company’s reputation. It did comment that the initial investigation was reasonable and Mr Buchholz leaving the items on his desk as a joke was an issue relating to his conduct and was potentially a fair reason for dismissal. However, the tribunal found that the reason for dismissal was not Mr Buchholz’s conduct but rather the deliberate act of trying to damage the company’s reputation by leaving the substances for the cleaners to find. The tribunal did not accept that this was a reasonable conclusion. Mr Buchholz consistently explained that the items had been left there inadvertently and gave plausible evidence of workload and pressure just before going on holiday as to why he was away from his desk that day. Geze should have objectively judged the situation and accepted Mr Buchholz evidence. Moreover, given Mr Buchholz known personality, dismissal was a disproportionate punishment for the conduct of this particular employee, who has no current warnings and had worked for the business for 14 years.

Comment

In this case, the employer tried to rely on and justify flawed reasoning for dismissal, that being reputational damage to the company, which in this case was difficult to argue since the act had not been posted on social media or anywhere else outside of the company. Employers should ensure they conduct a proper investigation, and reached conclusions based on a reasonable investigation. They must also ensure that they comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures and ensure that difference managers deal with the investigation, disciplinary and appeal as part of ensuring a fair process is followed.

If you have any queries in relation to carrying our fair and reasonable investigations and/or terminating an employee’s employment or require assistance defending a claim for unfair dismissal or have any other legal or HR queries please contact our employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

Email Alerts

Baines Wilson LLP send our clients and contacts legal updates by way of short email alerts. If you would like to receive our regular alerts, please follow the link below.

Sign up for Alerts

Awards & Accreditations

  • Lexcel
  • Chambers UK
  • Chambers UK
  • Supply Chain
  • Cyber Essentials