Essential Employment Law for Managers
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Was CCTV footage sufficient to infer misconduct leading to dismissal?
The Employment Appeal Tribunal (EAT) in the case of Leicester City Council v Chapman had to consider whether the Employment Tribunal’s (ET) decision to deem CCTV footage as insufficient to justify the Claimant’s dismissal was correct.
Background
The Claimant was employed by Leicester City Council (the Respondent) for ten years at one of their leisure centres. The Respondent’s leisure centre had a gym for its own staff.
Following some incidents of aggressive behaviour and unwanted physical contact, one of the Respondent’s female employees reported the Claimant. The incidents that were reported by the employee included instances of shouting, grabbing, chasing, and the Claimant pushing her face towards his groin area.
The Respondent investigated the allegations and were able to identify from a review of CCTV footage, the Claimant chasing and grabbing female colleagues. When questioned, the Claimant initially said that he could not remember the incidents happening. However, when shown the CCTV footage, he described the incidents as banter.
During the fairly lengthy investigation, the Respondent interviewed numerous witnesses to the reported incidents but failed to interview two eyewitnesses to the incidents under investigation. Notwithstanding this, the Claimant was dismissed summarily for gross misconduct and predominantly for the incident of pushing a female colleague’s head into his groin area. The Respondent relied heavily in the dismissal letter on the CCTV footage. However, it should be noted that the primary incident the Claimant was dismissed for was not clearly visible on the CCTV.
As a result, the Claimant brought claims of unfair and wrongful dismissal.
The Law
To establish a lawful dismissal, the Employer must show that there is a fair reason as set out under section 98 Employment Rights Act 2010 (ERA) and follow a fair process. In addition, the tribunal must also be satisfied when applying the test under section 98 (4) ERA 2010, that the employer acted reasonably in treating that reason as sufficient to dismiss the employee.
Decision
The ET held at first instance that the Claimant’s dismissal was unfair on the basis that the Respondent was unable to infer any misconduct from the silent CCTV footage. The Respondent appealed the finding of unfair dismissal.
The EAT allowed the appeal and held that the oral evidence and other documentary material adduced by the Respondent during the investigation had been overlooked by the ET. The EAT was of the view that although the CCTV was an important piece of evidence, it was nevertheless not the only evidence supporting the Respondent’s decision to dismiss the Claimant on grounds of gross misconduct.
The claim has been remitted to a new ET to be determined.
Comment
This case indirectly stresses the importance of employers conducting thorough and fair workplace investigations. As this case highlights, CCTV evidence will not necessarily be sufficient evidence on its own to justify a dismissal for misconduct unless it is unequivocal in what it depicts. It is therefore advised that when employers are investigating any potential misconduct of an employee, particularly where action could lead to dismissal, they do so in a balanced and thorough manner. Where a decision is to issue a sanction, especially in cases of dismissal, it is important to have ample evidence, ideally from more than one source, to underpin that decision.