The tribunal heard that Ben Wicken, who worked at IT services company Akita Systems, requested to attend an important performance meeting from home, as he needed to supervise gardeners.
Wicken’s manager, Christophe Boudet, questioned whether he was taking the meeting seriously, however employment judge Lisa Burge decided his decision to stay at home did not constitute “blameworthy” behaviour. The judge's decision was published on 30 April.
Following grievances between Wicken and Boudet and allegations of bullying, an internal investigation was arranged. However, the investigation was rules as biased, as Boudet had hired a friend who was an external HR consultant.
Judge Burge stated: “Once the perception of bias was raised, why was an independent HR professional not appointed, had the respondent truly wanted an independent investigation?”
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Workplace investigations should always be conducted by someone externally who has no personal connection to any party involved, Phil Pepper, employment partner at law firm Shakespeare Martineau, stressed.
Speaking to HR magazine, he said: “Those instructing the investigator must also not be involved in the investigation or influence its findings. In this case, Wicken expressed his concerns around the chosen investigator, who was a personal friend of the employer, but was quickly dismissed. Instead, the process ploughed on ahead, with the claimant’s grievance soon closed without thorough investigation.
“Ultimately, these failings all contributed to the employment tribunal’s conclusion that Wicken’s case amounted to unfair dismissal. A cautionary tale for all employers, this case emphasises the importance of following appropriate procedures from the outset when dealing with performance or disciplinary issues. HR policies should also be kept at the forefront of any case as it unfolds. Wicken was also at no point part of a fair and reasonable process to address his request to work from home. These oversights gave him grounds to challenge his dismissal.”
The tribunal heard that Wicken was taking part in a series of mediation meetings to improve his performance and working relationship with Boudet. When Wicken asked to attend this meeting remotely, Boudet was said to be “very disappointed”.
Wicken felt “attacked” at the meeting and told Boudet he thought he was undervalued before breaking down in tears. A HR professional had later told him that the directors of the company had lost trust and confidence in him, which led him to resign.
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This case highlights the importance of ensuring that investigations are fair and objective, explained Jane Amphlett, head of employment at law firm Howard Kennedy.
She told HR magazine: “The tribunal was critical of the employer in not appointing an independent HR professional once the perception of bias had been raised. Taken alongside other breaches, including a communication that the directors had lost trust and confidence in Wicken, the tribunal concluded that the employer's failure to do so was likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.”
HR leaders and managers should be careful not to assume that staff who choose to work from home are not productive, added Pepper.
He said: “Employers who do choose to allow working from home should have a clear policy in place that clarifies basic ground rules and behaviours to prevent similar legal dilemmas. Regular meetings to review capacity and monitor workloads, along with pursuing the correct disciplinary procedures for employees in breach of the rules will keep expectations clear on both sides.”
