I am in the middle of a disciplinary process with an employee for a gross misconduct issue, and he has asked me to look at mitigating factors. The investigation already found that there has been a breach of policy which falls within our definition of gross misconduct. Surely this means dismissal should be automatic? How do I handle it?

Jennifer O'Sullivan writes:

As part of the obligation to apply fair procedures in a disciplinary process, an employer must give full consideration to what would be a fair, reasonable and proportionate sanction given the specific circumstances of the disciplinary issue in question. The Employment Appeals Tribunal have been regularly critical of employers who apply blanket sanctions without considering the individual facts. Part of the obligation to act fairly and reasonably would necessitate taking into account any mitigating factors in a disciplinary process and determining whether these factors are such as to make the imposition of a lesser sanction more reasonable. In many cases an employer will be within their rights to take disciplinary action against an employee, but find themselves in legal difficulty because the sanction is not appropriate to the misconduct.

Issues that an employee may raise in mitigation can include their length of service with the employer; previous good behaviour or performance reviews; the fact that they admitted an issue early on and apologised; or that they made a genuine and honest mistake.

In the recently reported case of Meade –v- Adelphi Calton Limited t/a/ Cineworld Cinemas, UD 892/2012, an employer learned a costly lesson that mitigation should not be ignored when considering a disciplinary sanction. As part of an internal review of a stock shortfall, the respondent’s operations manager decided to examine CCTV footage of the sales desk. The claimant was observed on CCTV taking a large hotdog and a packet of wine gums without paying the correct price. Staff were entitled to a 40% discount on purchases however the claimant had recorded a price for a regular hotdog and a packet of maltesers as opposed to the large hotdog and wine gums that were actually taken. The difference in price, taking into account the discount, was approximately €1.

The respondent had a Staff Discount policy in place which specifically stated that the employee availing of the discount must ensure that the goods received match what is on the receipt and then sign a copy of the receipt and hand it back to the till operator. Any discrepancy was stated to be a breach of policy.

The claimant was brought through a disciplinary hearing and subsequently given an opportunity to appeal the outcome of dismissal, which was upheld on appeal.

At both stages, the claimant admitted that his actions were a breach of the Staff Discount Policy but he maintained that he did not deliberately defraud his employer and that he simply had not read the receipt before signing it. He stated that he was unaware of the serious implications of such a breach and he had never received a copy of the Staff Discount Policy. The claimant also had three years’ service with the employer.

In finding that the claimant had been unfairly dismissed, the Tribunal noted the evidence of both the original decision maker and the person hearing the appeal that the mere fact that there was a breach of the policy in relation to staff discounted purchases meant that an act of gross misconduct had occurred and that dismissal was the appropriate sanction. In essence, it appears the decision automatically followed the finding of gross misconduct, which meant that no consideration was given to the seriousness of the issue, any mitigating factors or the proportionality of the sanction.

The Tribunal noted that this practice suggested that whether or not the incident was an honest mistake by the claimant could have had no impact on the outcome of the disciplinary sanction. Therefore, the Tribunal was not satisfied that it was reasonable of the respondent to conclude that this was an act of gross misconduct and the appropriate sanction was dismissal. The claimant was awarded €20,000.

The key advice is that an employer must be seen to have given proper consideration to any mitigating factors before reaching a decision on a disciplinary sanction. Even in cases where the decision is to dismiss, an employer will be in a stronger position to defend against a case for unfair dismissal if they can demonstrate that they weighed up mitigating factors at the disciplinary stage but still had a reasonable basis to stand over a decision that these factors did not detract from the seriousness of the issue and that dismissal was still reasonable and proportionate. Irrespective of the seriousness of the conduct, an employer must be able to show the reasoning behind a decision to impose a particular sanction and that it is reasonable and proportionate given the particular facts and not a pre-determined or automatic outcome.