Despite wrongdoing by the employee, judge says the delay in proceedings was ‘surprising’ and objectively unreasonable
28 November 2022
A sales adviser who gave his personal mobile number to a customer and passed her contact details on to a colleague was unfairly dismissed, a tribunal has ruled.
The London South Tribunal ruled that Mr C Hagan, who was investigated for a string of accusations from colleagues, including bringing his daughter to his place of work, bullying and playing offensive music, was unfairly dismissed when his employer, Sky, took five months to complete a disciplinary investigation.
Employment judge Swaffer said the period of time that Sky took to carry out the investigation without any contact with Hagan was “at odds” with the requirement for an investigation to be reasonable.
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The tribunal heard that Hagan – who “met all his performance targets” – was employed as a sales adviser at the Sky stand in Kingston upon Thames’s Bentall Centre from 7 August 2017 until his dismissal on 25 November 2020.
In September 2019, Hagan’s grandmother, who was also caring for his disabled son, died, and on 2 October he made plans to travel to Ghana to attend the funeral.
The tribunal heard that “sometime” between September and December 2019, Hagan was investigated for using the Sky stand to make calls to Ghana.
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As a result, Hagan was issued with a final written warning for his breach to Sky’s acceptable use policy. The tribunal found he racked up a bill of £1,033.84 by making 97 calls to Ghana, which totalled 17 hours and six minutes.
Sky accepted that Hagan’s “decision making was impacted during a stressful and emotional time”, and told the tribunal this is why it favoured a final written warning over dismissal. Hagan was also offered an occupational health (OH) referral, and he eventually repaid the money owed.
Meanwhile, on 28 November 2019, while the first investigation for calls to Ghana was taking place, Hagan expressed concerns to his manager, AH, about the behaviour of a female colleague, RD. On 3 December he asked AH about the uniform policy, arising from a male colleague’s, CE, dress.
On 11 December, RD told team leader Ricky Davis that Hagan “intimidated, bullied and harassed” her, and Davis held an investigation meeting with RD on the same day.
The tribunal heard that RD made allegations that Hagan, who was a single parent, left his daughter for “long periods” at the stand, shared his Sky login details with another colleague, made “inappropriate remarks” to her after she declined to date him and was “inappropriately involved” in RD’s relationships.
She also said Hagan made “inappropriate comments” about women who passed the stand and that he played music with “offensive lyrics”.
Davis held an investigation meeting with Hagan on 19 December, in which he denied RD’s allegations and suggested she may be “retaliating” against him in a separate incident where RD was suspected of bullying a non-Sky employee at the Bentall Centre. Davis suspended Hagan on full pay while the investigation was ongoing.
On 7 January 2020, the tribunal heard that Davis met with CE, who alleged that Hagan was “often late for work”, shared login details and played “inappropriate” music on the stand.
On 5 February, Davis met again with RD, who alleged that Hagan argued with her on the stand in front of customers, and “frequently” left the stand for long periods when he was on the phone – but RD resigned on the same day.
On 17 February, Davis met with Hagan, who apparently “expanded” on RD’s possible motivation for making allegations against him. The tribunal did not go into detail as to what they could be.
On 9 March, Davis met with CE, who agreed that Hagan often left his daughter on the stand, alleged that he had access to Hagan’s Sky account, and that Hagan made inappropriate comments about women. On the same day he also met with a former employee, SC, who had worked with Hagan and corroborated all the previous allegations, but added that Hagan gave customers his personal mobile number.
Davis met with CE again on 27 March, who provided “evidence” that Hagan had provided a customer with his personal mobile number and kept customer numbers, as Hagan sent CE a message “with a customer’s phone number, asking me to call them about a deal”.
On 15 April, Davis met with Hagan, who confirmed he understood data protection and that he was not allowed to give his personal number to customers. He explained that while he was travelling to his grandmother’s funeral, a potential customer called him but he said she became “dissatisfied” that he was not providing “good customer service”.
Hagan claimed he told her to visit the Sky stand for assistance, but she did not want to and was “not willing” to wait until he returned to work, and asked for her details to be passed to a colleague, so Hagan sent her number to CE.
The tribunal heard that Hagan wanted to “promote Sky’s business and provide the best customer service”, that he felt pressured by the customer, that he had gained her consent to share her details and that she was a “prospective customer, not an actual customer”. The tribunal accepted Hagan’s account of the events.
On 28 May 2020, a formal disciplinary case was raised in relation to Hagan sharing personal login details with a colleague, having customer details on his personal phone that he shared with a colleague without the customer’s consent, making inappropriate comments about women – an accusation that was not upheld by Sky, nor discussed further by the tribunal – and playing offensive music.
Despite Hagan initially being invited to a disciplinary meeting on 4 June – which did not go ahead – he did not hear from his employer until 5 November, which stated that the meeting did not go ahead because Hagan provided a ‘fit note’ from his GP, which resulted in a referral to OH. As such, the investigation continued until late November 2020.
Davis told the tribunal the delay was because of Hagan being on leave, the impact of Christmas and difficulties arranging meetings with the witnesses, new information being provided at each meeting that required further investigation, Hagan’s son having ill health and Hagan contracting Covid.
On 24 November, during the disciplinary hearing, Sky regional manager Margaret Kerr dismissed all the allegations against Hagan but upheld the breach of the data protection policy in relation to customer details, and dismissed Hagan on 25 November. Hagan appealed the decision but he was unsuccessful.
The tribunal found there was a “clear finding” that Hagan breached data protection policy, and Hagan “accepted he had done so”.
However, Swaffer said the delay between the first planned disciplinary meeting on 4 June 2020 and his eventual dismissal on 25 November was “objectively unreasonable” and fell “outside the range of reasonable responses”.
“This is [down] to the overall length of time that it took to carry out the investigation, and in particular the period of time during which there was no evidence of any attempt by [Sky] to contact [Hagan] about the investigation,” said Swaffer, who added that they found the period of five months “without evidence of contact or attempted contact surprising, and at odds with the requirement for an investigation to be reasonable”.
Monica Atwal, managing partner of Clarkslegal, said the case highlighted that employers should “beware” of a delay in investigation and disciplinary proceedings. “An employer must have due regard to conducting a process in a timely manner,” said Atwal.
“Grievances and absences during the process cannot detract from the obligation. But this judgment is only part one of the story; there are findings that [Hagan] committed wrongdoing.”
A remedy hearing on 26 October 2022 ruled that Hagan was only entitled to a basic award of £807 as compensation for his dismissal, which was reduced by 50 per cent, because of his “contributory conduct”.
Sky has been contacted for comment. Hagan could not be reached.
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