Maintaining zero tolerance without abandoning fairness

Zero-tolerance policies are enforced in workplaces up and down the country, but it’s key that employers remain fair when challenging situations arise. Our team looks into a case that highlights the need to maintain zero tolerance without abandoning fairness.

Even though the Nayfeh judgment is a Scottish decision and not binding in England and Wales, it is a useful reminder for employers of the necessity of maintaining procedural fairness when pursuing a zero-tolerance policy in the name of the duty to prevent sexual harassment.

Mr Nayfeh (‘N’) had been employed by Barclays Bank (‘B’) for nine years and had a clean disciplinary record.

‘C’ – a colleague of N – had a condition which caused them to “zone out” of conversations.

C made allegations against N that he had made sexually inappropriate remarks, which included:

• “if I show you my willy, will that make us friends?”
• “why don’t you buy yourself some sexy underwear?”
• “what’s the youngest a 40-year-old can go with?”

There were no witnesses to these remarks being made, nor was there any written evidence or evidence of any exchange of messages between N and C.

N was suspended pending an investigation.

In the absence of any evidence, the investigator concluded that it was likely that all three remarks had been made.

The letter inviting N to a disciplinary hearing included five allegations, not the three that had been investigated. Whilst the chair stated the hearing would be limited to the three allegations, N was finally dismissed in respect of all five.

The time taken by B to conclude this process was four months, during which time N remained suspended.

The reason given by B for the dismissal was that N’s conduct was incompatible with their values and zero-tolerance policy.

On appeal, the appeal officer spoke again to C but failed to inform N or give him the opportunity to respond further.

The dismissal was upheld.

At the Employment Tribunal (ET), the matter was not why N had been dismissed but how. The ET found the process leading to the dismissal to be seriously flawed, and that the dismissal fell outside the range of reasonable responses and was therefore unfair.

The investigation was found to be one-sided and failed to consider that, in light of C’s condition, they could have misremembered or misunderstood.

Additionally, the chair of the disciplinary panel misinterpreted the two denials as partial admissions and made a finding on two different allegations that had never been put to N.

The ET went on to find that evidence was withheld at appeal and that delay in the whole process was unjustified and harmful.

In its attempts to maintain zero tolerance to uphold standards, B had made serious errors.

The ET did make a contributory fault deduction to the compensation of 15% in respect of the allegation admitted by N, but stressed that that single comment did not justify dismissal.

In its actions, B had caused delay and confusion through poor communication – N had been judged and punished without being heard.

Notwithstanding the delay, the chair could have paused the process to enable the additional allegations to be properly investigated, and the appeal officer could have shared the additional evidence. The chair could also have restricted the disciplinary process to the scope of the original three allegations.

Taking these actions would have strengthened B’s zero-tolerance policy as it would have demonstrated procedural integrity.

When conducting disciplinary action, employers must be mindful that a dismissal must be justified by the evidence and be proportionate to the conduct.

At Willans, we can provide advice and support with any disciplinary or grievance procedure. If you have any questions or queries, please don’t hesitate to get in touch.

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