Negotiation Plan Outline Structure

(1) Issues to be negotiated:

- Whether Biggins is completely blameless
- Was what Biggins had done a disciplinary matter and should he be dismissed for it
- As the union representative, should Biggins have known better

(2) Objectives and Interests

Biggins: establish that there was unfair dismissal –he does not want to lose his jobs and thus
wants to be reinstated  he loves his job and needs to support his family

Employer (Better Biscuits): lost the trust and confidence in Biggins after he stole from the
company/was rude to the manager/ the fact that Biggins was found guilty of assault is
unacceptable to the company

(3) Claimant’s Strengths and Weaknesses

Unfair dismissal claim on grounds of misconduct—theft, being rude to Mr Cross and being
convicted of assault.

i. Unlikely to show that Better Biscuits had an honest belief that Biggins was guilty of
misconduct (theft) or that they had reasonable grounds for the belief

- Whether it was unfair to dismiss Biggins on the grounds of conduct (theft), the eer needs
to show honest belief that eee was guiljty of the offence, that it had reasonable grounds
for the belief and that belief came from reasonable investigation
o Difficult for Better Biscuits to show an honest belief that the eee was guilty of the
offence –customary practice for the eees to take the biscuits home if it were
broken/if the packaging damaged –Victoria Square (managing director) was fully
aware of it and she had never said that it could not be done  since the MD knew
about it and didn’t say anything, she condoned it/tacit acceptance of it. It was also
customary practice for all the eees.
 Were the other eees who did the same dismissed?

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 o Kenyon Road Haulage Ltd v Kingston is a case where the dismissal of the eee
was due to the fact that the eee sold scrap metal generated by work at the eer’s
garage and divided the money obtained between workers, including the C. C
stated that he did this for year and thought that the management knew and
approved. ET held that the eer did not have a genuinely held belief that C had
committed gross misconduct and had not carried out reasonable investigation.
EAT agreed with ET.

o There was a sign that said “anyone found taking any of the Company’s property
without authorization would face disciplinary sanctions and potentially dismissal”
–However, at this point of time, taking the damaged biscuit was not without
authorization as it had been such a norm in the company and for many years

o Mr Cross did warn that rules will be tightened and enforced but again, it was a
vague and a general statement. It did not specifically refer to the conduct of taking
the damaged biscuits. No reasonable person in those circumstances would have
interpreted what Mr Cross said and the notice to mean that a practice adopted for
20 years was not allowed. There was nothing explicit that said eees could no
longer take the biscuits home and that it amounted to theft –surely for something
done so frequently and for so long, a clearer and specific statement should have
been given.

o Yes, he received a copy of the disciplinary and grievance procedure stating that
theft is treated as gross misconduct –but the company had always condoned the
practice of eees taking damaged biscuits home –not taking without authority if
nothing was said for that conduct for the past 20 years – amounts to tacit
permission

o No reasonable investigation into the alleged misconduct

ii. Dismissing him on the grounds of his conduct at the meeting

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Shouting at Mr Cross—Mr Cross also shouted at him and at one point looked like he was about
to hit him—both parties were at fault here—even if it amounted to misconduct, it was conduct
that merited a sanction lesser than dismissal
o Mr Cross did not explain clearly what the meeting was for –Mr Biggins was under
the impression that it was about the box he forgot to drop off. Mr Cross then
started to tell him that what he did was theft and that he would call the police –
took Mr Biggins by surprise and thus he got heated as he was being accused
o A case of miscommunication?
o Both parties were at fault as they shouted at each other
o Even if Mr Biggins misconduct was accepted by the ET, there is procedural
unfairness as ACAS Code had not been complied with –no investigatory meeting,
did not inform Biggins about any disciplinary case to answer, no disciplinary
meeting

iii. Conviction for assault on 24th April 2019 and was fined
o Just because there was a conviction does not make it an automatically fair ground
to dismiss Biggins
o ET has made it clear that dismissing an eee for criminal misconduct is only
justifiable where there is sufficient connection between the crime committed and
the eees work
 The offence did not occur in his workplace –did not affect his employment
as a driver for the company
 Any publicity will not affect the company as the position he holds is not a
management position/he does not represent the company when making
business deals/sales
o Also, not a very serious offence –punished with a fine
o Mr Cross did not consider other alternatives to dismissal
o No procedural fairness as well –investigatory hearing, informing Mr Biggins about
the allegations etc. –ACAS Code or any internal disciplinary procedure not met

iv. Likely to be held as unfair dismissal since no procedural fairness –he was
immediately dismissed without any procedural steps being taken

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 o No full and proper investigation on the alleged theft and there was no disciplinary
hearing that took place before the dismissal
o No warnings given before dismissal—the conviction happened on 24th April and
there had been no warnings given for that
 The warning for theft was given on the day he was dismissed

(4) Information sought/to be disclosed

- It was always the practice of the company to allow eees to consume the damaged
biscuits, and subsequently they were also allowed to take it home?
o Customary practice ongoing for many years?
o MD must have known about it?
o Even if she did not agree to it, the fact that it had went on for 20 years and nothing
had ben done to stop it would, in the minds of a reasonably honest eee, amount
to tacit acceptance?

- Mr Cross’ position on what amounts to theft

- Whether there was an express statement addressing the act of taking the damaged
biscuits home
- Were eees told what to do with the damaged biscuits besides taking it home
- Since Mr Biggins was the union representative, was he told by Mr Cross that the taking
of damaged biscuits amounted to theft –how would he have known better if the
management did not communicate it to him?
- Whether reinstatement is possible
o S114 ERA 1996
o In reinstatement, nothing changes. The eee is returned to the previous position
and treated as if he had not been dismissed.

(5) Concessions
What Biggins will concede: reinstatement –can he work at a different location? Warning?
Suspension for a period?
- Whole idea of reinstatement is to bring you back to the position you would have been at if
you hadn't been dismissed ; not just about financial compensation (like in WD) but about
bringing you to the ACTUAL POSITION you would have been in if you were not dismissed,
financially, socially, from view of social welfare as well as from actual obligations at work

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