In Mr P Gregory v P&O Ferries Ltd, a long-serving employee was dismissed following allegations of misconduct.
Paul Gregory, a customer service representative and union rep with 28 years of service and a clean disciplinary record, was accused by a junior female colleague of pulling her hair in a check-in booth and later whispering an offensive remark in her ear.
Mr. Gregory admitted to a playful touch of her hair after reminding her to keep it tied back per company policy but denied any malice or whispering offensive language.
The investigating manager initially concluded there was insufficient evidence for disciplinary action, recommending equality training and mediation, and assured Mr. Gregory his job was safe. However, after facing heavy pressure from senior managers who wanted a different outcome, the investigator repeatedly altered his report to conclude physical assault and intimidation, ultimately recommending a formal disciplinary hearing.
Mr. Gregory was not re-interviewed regarding the new allegations or evidence, key eyewitnesses were never questioned, and he was dismissed for gross misconduct in June 2023.
The Rulings
The Employment Tribunal ruled that Mr. Gregory was unfairly dismissed both procedurally and substantively, awarding him £40,807 in total compensation.
The tribunal’s key conclusions included:
- The judge found that the investigating officer ‘succumbed to unreasonable peer pressure’ from colleagues who had not heard the evidence, rendering his altered findings ‘unreliable and unsafe’.
- P&O Ferries failed to disclose internal emails revealing the management pressure placed on the investigator until specifically ordered to do so by the tribunal.
- The tribunal noted that no independent witnesses supported the allegations and that the employer gave undue weight to a complainant with known personal grievances while disregarding Mr. Gregory’s 28 years of unblemished service.
- The employer failed to re-interview Mr. Gregory on new evidence, ignored key witnesses, and refused his request to question the investigating managers during his appeal hearing.
Learnings for Employers
- Never allow senior managers to pressure an investigating officer into changing their findings or recommendations to suit a preferred outcome.
- If an investigation uncovers additional evidence or expanded allegations, you must re-interview the employee to give them a fair opportunity to comment before moving to disciplinary action.
- Ensure that every colleague who was physically present during an alleged incident is interviewed, rather than relying solely on uncorroborated claims.
- Attempting to withhold internal communications or draft reports showing internal pressure will severely undermine your credibility before a tribunal.
- Telling an employee an investigation is closed and their job is safe, only to reverse course under management pressure, creates severe procedural unfairness.
The Employment Rights Act 1996 places a legal duty on an employer to first establish a potentially fair reason for dismissal (such as employee conduct). However, establishing a reason alone is insufficient; the employer must also demonstrate that they acted reasonably in all the circumstances in treating that conduct as a sufficient reason to dismiss.
In conduct-related dismissals, tribunals evaluate fairness using the established Burchell test (British Home Stores Ltd v Burchell), requiring the employer to prove:
- They held a genuine belief that the employee committed the misconduct.
- That belief was based on reasonable grounds.
- At the time the belief was formed, they had carried out as reasonable an investigation as was appropriate in all the circumstances.
Furthermore, employers must follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, any unreasonable failure to do so can increase the unfair dismissal award by up to 25%.
Both the investigation process and the ultimate penalty of dismissal must fall within the ‘range of reasonable responses’ open to a reasonable employer.
As demonstrated in the P&O Ferries case, failing to conduct an unbiased investigation, allowing senior management peer pressure to dictate findings, or refusing an employee the right of reply will cause a dismissal to fall outside this reasonable range.
Under current rules, compensatory awards for ordinary unfair dismissal are capped at one year’s gross salary or £123,543 (whichever is the lower). While the following case illustrates notable exposure today, the picture shifts dramatically under the upcoming reforms when the statutory cap is removed.
