Sanction of Dismissal Disproportinate to the Misconduct

In this case, the claimant had been employed by the Hotel Group for ten years as a conference and banqueting supervisor and had an unblemished record.


She claimed she was next in line for a promotion to Manager in that area of responsibility.


The Hotel Group had been tipped off that there was embezzlement and had engaged the services of an undercover investigator who had installed CCTV cameras in the bar area of a function room.


Following a function on 9th January 2005, the claimant was alleged to have consumed drink while on duty and leaving the premises while she was still on duty.


The procedures followed by the Hotel Group were as follows:


• A fact finding meeting was held on 20th January 2005 where a number of Hotel Group managers were present along with the claimant and a union representative. The claimant and her shop steward had not been informed of the allegations prior to this meeting

• The claimant was suspended from duty on 20th January 2005

• The claimant was invited to a disciplinary meeting on 21/01/05 but did not receive a letter from the Hotel Group outlining the charges against her. The claimant did not attend and submitted a doctors certificate

• The Hotel Group wrote to the claimant on 16th February 2005 requesting an up-to-date medical certificate

• The Hotel Group wrote to the cla imanton 22nd March 2005 requesting a meeting to continue the investigation

• The Hotel Group sent another letter to the claimant dated 28th March 2005 requesting the claimant to make contact with the hotel

• The Hotel Group sent another letter on 26th April 2005 stating that the Hotel Group had no alternative but to proceed with the disciplinary procedure

• The claimant wrote to the Hotel Group on 28th April 2005 stating she didn’t know when she was likely to return to work

• The Hotel Group wrote to the claimant on 6th May 2005 and requested she attend the company doctor who subsequently (on 27th May 2005) advised the Hotel Group that the clai mantwas fit to return to work

• The claimant attended a disciplinary meeting on 17th June 2005

• The claimant agreed that she had consumed alcohol but claimed she was off duty when she consumed the drink and that it had been purchased by a customer.

• The claimant had consumed 2 drinks one at 23.36 hours and a second at 00.05 (as evidenced by the CCTV footage)

• The claimant requested to attend a neutral occupation health specialist and the Hotel Group agreed

• The claimant however did not make an appointment to attend

• The Hotel Group arranged a further disciplinary meeting for 4th July 2005 but the claima ntdid not attend

• The Hotel Group wrote to the claimant’s union official requesting that the claimant attend the hotel to conclude the investigation

• The Hotel Group arranged a further meeting for 27th July 2005 but the claimant did not attend. The claimant claimed she did not receive a letter from the Hotel Group in relation to the July meeting.

• The claimant attended a meeting on 18th August 2005 and the conclusion following this meeting was that the claimant was dismissed for gross misconduct

The Tribunal agreed that the following issues had to be decided:


• Whether the Hotel Group was obliged in law to provide the claimant with an employment contract

• Whether drinking alcohol whilst on duty in the hotel was a gross misconduct

• What the definition of “off duty” was

• Whether the claimant was drinking while on duty

• Whether drinks consumed by the claimant were paid for

• Whether the disciplinary procedure adopted by the Hotel Group was fair within the meaning of the rules of natural justice


The Tribunal found that:


• The Hotel Group’s employees signed a letter of offer but did not receive a contract of employment. The claimant had not received a contract of employment or terms and conditions when she joined the Hotel Group in October 1995. This letter of offer did not amount to a contract.

• The Company Disciplinary manual clearly states that consuming alcohol while on duty is gross misconduct

• The definition of “close” is not in the company’s training manual or company policy document and it is the Hotel Group’s responsibility to adopt specific guidelines with regard to when the function/conference ‘closes’ and ensure they are enforced

• There were no set procedures in place to establish when a function was ended. It was customary that a managers/supervisors responsibility ended when the lights were put out in the bar and the money was totalled

• In the absence of the Hotel Group’s policy the claimant’s definition of “close” i.e. when the food was served and bar was closed meant she was off duty and consequently she had not drunk while on duty

• A drink for staff could be authorised after busy nights when cash was completed, the room was cleaned and staff clocked out. An ullage book was kept at the bar to record who authorised the drinks but there were no drinks from the bar authorised on 9th January 2005. The system was not strictly adhered to.

• The claimant’s drinks were paid for by a customer and therefore did not appear in the ullage/waste book, the house account on the till or the staff book

• The claimant had a system with her manager that if both of them were running a function they would take it in turn to leave early

• The claimant was not informed of the purpose of the investigative meeting prior to the meeting in January

• There was no evidence that she had formally (in writing) been made aware of the charges against her. Despite all of the correspondence between January and August, it did not state the charges against her, consequently the claimant’s rights to fair procedure were breached by the Hotel Group


The Tribunal concluded that:


• The claimant’s dismissal was disproportionate to the charges being made against her

• The claimant’s dismissal was unfair


The Tribunal awarded the claimant €30,000 under the Unfair Dismissal Acts 1977 to 2001.


Case: Kearney v Gresham Hotel Group Ltd, Employment Appeals Tribunal, UD891/2006, 18/5/2007


If you would like help in with employment law, Please contact us or Call 01 866 6426 for more information on how we can help.