In the case of Daly v Donnybrook Fair Ltd t/a Donnybrook Fair the EAT has recently considered the issue of a failure to consider alternatives to dismissal in cases of gross misconduct. The case revolved around an employee, Mr Daly, who had posted derogatory comments about his store manager on Facebook following a telephone disagreement with her. Having been told later in the day by his employer that his behaviour could be seen as bullying he apologised the same day. The employer carried out an investigation, during which Mr Daly "put up his hands" and provided a written apology. Mr Daly was dismissed and at the Tribunal it was admitted by the employer that it "did not consider any other sanction as what [Mr Daly] had done was to put content on Facebook that was a public forum and [the employer] considered it gross misconduct".
The EAT found that the failure of the employer to consider alternatives was significant. Mr Daly had taken responsibility for his actions and apologised to all involved. Even though the conduct in question was, in the view of the employer, gross misconduct they should have considered mitigating circumstances and whether there were any reasonable alternatives to dismissal.
This case is a timely reminder that even when gross misconduct is found to have taken place, alternative sanctions to dismissal should still be considered. However, not surprisingly, the EAT found that Mr Daly significantly contributed to his dismissal which impacted on the compensation he was awarded.