When is a dismissal for failling to follow instructions unfair?

The EAT has found that an employee who was dismissed for failing to follow reasonable management instructions was unfairly dismissed. This case illustrates the importance of adequately communicating changes in workplace policy and following a fair disciplinary procedure in cases of misconduct.

The claimant in Butler v Synergy Health UK Limited had worked for his employer, who sterilises and decontaminates medical equipment, for almost a decade. For 8 years, he had changed out of his PPE just before the end of his shifts. During a year-long absence, his employer changed policy so that staff were required to change out of their PPE after clocking out rather than before. When the claimant returned, the new policy was not explained to him, and he continued to change before clocking out in the belief that he had a contractual right to do so. His employer gave him a final written warning, against which he unsuccessfully appealed, continuing to change clothing before clocking out in the meantime. He was then dismissed, against which he also unsuccessfully appealed.

The EAT found that there was no implied contractual term allowing the claimant to act in the way he did, despite the fact that he had done so for a number of years, particularly because there was no evidence that other colleagues changed out of their PPE before clocking out. The fact that he had faced no disciplinary action previously could be explained by employer discretion. The EAT also found that to ask the claimant to adhere to the new policy was a reasonable management request, and it was not unreasonable for the employer to initiate disciplinary proceedings once it became clear the claimant was not going to comply.

The EAT did find, however, that the decision to dismiss was unfair. It was important that the claimant has a reasonable, if mistaken, belief in his contractual right to change during working time, and that he had in fact done so for some 8 years. Additionally, he was not at work when the policy change was introduced, and he was not told about it when he returned. The EAT also found that the disciplinary procedure followed by the employer was flawed. On his return from work after a lengthy absence, he was immediately given a final written warning in respect of behaviour which had previously gone uncriticised for many years, and in line with a policy that had not been communicated to him. Additionally, as the second disciplinary process began before his appeal had been heard, he did not have any time to reflect on the final warning and unsuccessful appeal and change his behaviour before risking dismissal. It was also found that one of the decision-makers had approached the process with a closed mind, and that she had been the investigator and decision-maker in both disciplinary proceedings.

This case highlights several important points for employers to be aware of. It is essential that all policies and changes in policy are clearly communicated to employees, especially where an employee’s absence may lead them to be unaware of new policies. Furthermore, employers should always ensure that disciplinary proceedings are conducted in as fair a manner as possible. While the same person can be both an investigator and decision-maker in the same proceedings, this should be avoided if possible, and good reason should be given as to why it cannot be avoided.

Ultimately, if an employer is considering dismissal for failing to follow instructions, it should always be considered whether the employee is acting reasonably in doing so, looking at all the circumstances.

If you feel you have been unfairly dismissed by your employer, get in touch with us at the details below. Hina Belitz is a highly experienced employment solicitor with over 20 years' experience in the field.