Employee Caught Short. Employer Fell Short.

Employee caught short. Employer fell short.

On the face of it, dismissing an employee for urinating in a public place would seem like it should result in a fair dismissal. However, the case of Asda Stores Ltd v Raymond demonstrates how important investigating the circumstances properly is when dismissing employees.

Asda dismissed a delivery driver for urinating in a shopping centre delivery yard. The driver argued that he had been desperate to go to the toilet and did not have time to find one. Instead, he urinated in a ‘discreet part of the yard’. Unfortunately for the employee, it was not so discreet that he avoided being caught on CCTV cameras. He was dismissed for gross misconduct and breach of health and safety policies and regulations.

The Employment Tribunal concluded that Asda's investigation was inadequate and was not within the band of reasonable responses. The manager failed to investigate the full circumstances of the case and was not interested in the reason why the employee had urinated in a delivery yard, only that he had. This made the dismissal unfair.

The employee suffered from type 2 diabetes yet Asda did not seek any medical evidence. The Tribunal heard that one of the symptoms of type 2 diabetes is urge incontinence (a sudden and urgent need to empty the bladder). The Employment Tribunal held that the dismissal was unfavourable treatment arising from the employee's disability within the terms of the Equality Act 2010.

The Employment Appeal Tribunal agreed with the Employment Tribunal that the employee had been unfairly dismissed. The investigation and dismissing officers had not properly considered the reasons why the employee had urinated, and did not obtain medical evidence despite the relevance of the employee’s diabetes. Asda was also unable to identify the employee’s breach of health and safety regulations, despite alleging that the employee’s misconduct was a health and safety issue.

Employers should:-

  1. conduct a reasonable investigation, taking care to review the circumstances of a situation, including any medical or other evidence that may support the employee; and

  2. ensure that if they allege an employee has breached policies, rules or regulations, that they can identify the breach!

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Author: Rebecca Butler
Senior Associate, Employment

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