Admiral subsidiary worker wrongfully dismissed, court finds

An Employment Tribunal (ET) in Cardiff has ruled against EUI, a subsidiary of Admiral, stating that the firm wrongly dismissed an employee for gross misconduct before ongoing criminal investigations had concluded.

The claimant, Mr D Bosher, was arrested in 2017 on suspicion of being in possession of two indecent ‘category A’ images; police searched the claims valuation coordinator’s home in March of that year, removing electronic devices and memory cards to be forensically assessed.

Bosher was formally charged in July 2017; he informed his line manager that this had occurred, however he reinforced that no indecent images were found on his phone.

At this point, EUI did not suspend Bosher or place any restrictions on him at work, although the firm did establish that it would be conducting its own investigation into the affair, alongside the formal action being taken by the Crown Prosecution Service (CPS).

At a meeting in July, EUI warned Bosher about his bail conditions and recommended the claimant be careful in the building’s lifts, as these are not covered by CCTV surveillance. However, the organisation was happy for Bosher to take time to obtain legal advice.

Investigations

In August 2017, Bosher confirmed that he was aware of distasteful material on his Dropbox account, however he did not knowingly look at, possess or download such images.

EUI recorded in meeting minutes that month that Bosher informed the organisation that his solicitors recommended he pleaded guilty; Bosher contends this.

At this point, Bosher was advised that EUI’s internal investigation would progress to a disciplinary hearing, although Bosher maintained that the information surrounding the case had not changed since their initial meeting.

Bosher accused his EUI bosses of offering him the opportunity to resign with a reference at the conclusion of the August meeting, providing that he did not mention the disciplinary investigation. EUI disputed that this occurred.

Later in August 2017, Bosher entered a ‘no plea’. A pre-trial hearing was set for September 2017. On the back of this information, EUI filed an investigation findings summary sheet.

This said: “Following our extensive investigation and coupled with the more recent outcome from [Bosher’s] court appearance, we have reasonable belief that the allegations may be true, as [Bosher] has never categorically denied the allegations and it now appears that his solicitor are relying on technical points in order for the case to be thrown out, rather than submitting a plea of ‘not guilty’.”

Disciplinary action

Bosher’s disciplinary hearing at EUI was on 22 August 2017, where he was dismissed for gross misconduct. The meeting minutes, as reported in the ET’s court documents, read: “We have had a think about everything you’ve said and we believe it is GMC. We have reasonable belief the allegations are true.

“Due to the reputational damage, duty of care to our staff who are under the age of 18 and the breach of trust we have decided to dismiss with immediate effect.”

On meeting with his lawyers following the disciplinary meeting, Bosher was advised to plead ‘not guilty’.

Bosher appealed his dismissal in September 2017, however his request to delay any appeal hearings until after his criminal court proceedings fell on deaf ears.

Wrongful dismissal

Employment judge Harfield, who presided over the hearing, found the reasons for Bosher’s dismissal unclear.

Harfield said: “A finding of gross misconduct does not automatically mean that dismissal is a reasonable response. An employer should consider whether dismissal would be reasonable after considering any mitigating circumstances. Generally, to be gross misconduct the misconduct should so undermine trust and confidence that the employer should no longer be required to retain the employee in employment.

“It cannot be the case, in my judgment, that it is reasonable for an employer in every situation to consider that a claims validation coordinator is unfit to perform their job because they have exercised poor judgment in their private life.

“The respondent here says it had no confidence in the claimant’s integrity to fulfil a role in the fraud team that involved undertaking work such as finding evidence and clues and assessing improper activity. They refer to the claimant’s access to social media which could include pictures of children. They term this a breakdown in or a breach of trust. But this is a claimant who had not been suspended and who had not been subject to restrictions or sanctions in work.

“There is no evidence, since the events first came to light, of the claimant’s performance in work being affected or any suggestion that he had conducted himself in work inappropriately, recklessly or in a way that lacked judgment. I do not consider that any reasonable employer would have summarily dismissed on that basis.

“When viewed objectively, dismissal was not in this case in the range of reasonable responses.”

The judge ruled that Bosher, who was later acquitted regarding his criminal trial, is entitled to financial compensation.