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Dismissal for gross misconduct after inadequate investigation was victimisation (EAT)

The EAT has upheld the decision of an employment tribunal that an employee was unfairly dismissed and victimised when he was summarily dismissed, ostensibly for knowingly using non-kosher jam to make cakes at a kosher bakery. The employee had previously asked for adjustments to his duties due to sciatica and had brought a tribunal claim for disability discrimination, which had hardened the employer's attitude to him.

The tribunal had been entitled to find that, even though the employee's use of non-kosher jam was an act of gross misconduct which entitled the employer to dismiss him, the principal or "operative" reason for the dismissal in this case was that he was regarded as a "problem employee" due to his earlier and ongoing requests for adjustments. Had it not been for this, the employer would have carried out a more thorough investigation and may as a result have imposed a more lenient penalty.

However, the EAT held that the tribunal had been wrong not to consider a reduction to the compensatory award for unfair dismissal on the grounds of contributory fault. For these purposes, the test was not whether the employee's blameworthy conduct had been the principal cause of the dismissal, but whether it had to any extent caused or contributed to the dismissal (which, on the tribunal's findings, it had). (Carmelli Bakeries Ltd v Benali [2013] UKEAT/0616/12.)

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