Unfair Dismissal: Case law example
Resignation does not need to be in writing (although it should be if that is required under the contract of employment), it can be given orally or in some cases via conduct. When a resignation is clear and unambiguous there is no obligation on the employer to double check the employee's intentions. However, if the employees resignation is unclear and an employer proceeds in treating the employment as having ended then there may be trouble ahead.
In Cope v Razzle Dazzle Costumes Limited the claimant was a factory worker. She fell out with a colleague who subsequently resigned, accusing the claimant of bullying. When the claimant was made aware of the allegations she requested a meeting with her employers, Mr and Mrs Parker, and said she would resign if things were not sorted out properly. The following day the claimant made two attempts to speak to Mrs Parker who was unavailable on both occasions. On being told this for the second time the claimant said "I'm done", left her factory keys on the counter top and left the building.
The employee whom the claimant had said this to subsequently advised Mr and Mrs Parker that the claimant had resigned. No attempt was made to clarify the situation, despite the claimant texting Mrs Parker later that day to indicate she had attempted to speak to her but couldn't stay at the workplace any longer. The following day she handed in a two week sick note, and a week after that she requested a meeting with the Parkers which took place. It was at that meeting that the claimant was informed that her employers considered her to have resigned and they did not agree to her returning. By this time the employers had also re-employed the employee who had made the bullying allegations.
The claimant was successful in claims for both unfair and wrongful dismissal. The tribunal was of the view that no reasonable employer would have concluded that the claimant had unambiguously resigned, and her subsequent behaviour, in particular the submission of a sick note, was not consistent with a resignation. The tribunal took the view that the employers chose to treat the claimant's actions as a resignation because dealing with a dispute between two employees was disruptive to the business.
It is easy to see why the tribunal came to the conclusion that it did. While announcing she was "done" and handing in her keys may, in some circumstances, reasonably be seen as a resignation, in this case the claimant was due to have 3 days off and she had in the past handed in her keys when off on holiday. The evidence also suggested that the claimant had been in a highly anxious state when she walked out and the act of obtaining a sick note is clearly not consistent with resignation. Treating it as such, to avoid dealing with the allegations of bullying, may have seemed like the easier option at the time but the award of nearly £7,500 in compensation together with the management time and any legal fees involved in defending the tribunal claim has likely given the employers a different perspective on the matter.
The advice for employers is if in doubt check it out. If it is unclear what has happened, or if words may have been said in haste then ask the employee to confirm what their intentions were/are. If words were said in the heat of the moment then consider giving the employee a short period of time to cool off and reconsider. If the contract requires written notice and this has not been given then ask for the resignation to be put in writing. This will avoid any subsequent dispute and a possible Employment Tribunal claim.
Tips for Dealing with Underperforming Employees
Poor employee performance can affect not only their immediate team but also the wider business. When colleagues see an employee slacking, their own motivation can decrease.
In some cases, an employee may be genuinely trying but is struggling to hit their targets or meet the needs of the business. On the other hand, an employee may be more than capable but not as bothered when it comes to hitting their targets.
These tips may help you deal with underperforming employees.
Know what you want from the employee
To identify if an employee is underperforming you need to be aware of what you want from them. It’s important to know that the employee must be aware of the required standards of the business.
Informality
When addressing the performance issue for the first time, you should approach it informally with the employee. A simple conversation with the employee will make sure the issue is not unaddressed.
Let the individual know that there are concerns
The first practical step is to let the employee know that you have concerns regarding their performance in the workplace. This should be done privately with the employee. This isn’t a formal meeting so there is no need to formally invite the employee with notice. It’s best to approach this conversation in a friendly manner.
Identify the problem
There should be inquiries to the reason for the employee’s underperformance. This is necessary to establish what action you need to take. If they have the capacity to perform better but simply choose not to, they need to be told to improve.
If they’re trying hard to do the job but still can’t perform well, that’s the problem and you should identify how you can help them for example providing training or supervision. If it’s a medical reason, it may be necessary to obtain an expert medical opinion.
Make them aware of the consequences
Although you’re dealing with the issue informally, you should inform the employee that if there are no signs of improvement you may need to begin a formal procedure with them.
Revisit
If the employees’ performance doesn’t improve, the issue should be revisited. You should speak to the employee again, pointing out your previous discussion and any help that you provided and that it doesn’t appear to have any effect.
Formal Procedure
If no sufficient improvement or explanation is provided, you should consider implementing a formal disciplinary or capability procedure with the employee. Formal hearings should be held where the employee is permitted to respond to the concerns you have. Employees should be formally invited to these hearings, allowed the right to be accompanied and formal sanctions, e.g. warnings may be given where appropriate.
Additionally to these tips you need to remember to communicate clearly with each employee. Ensure the employee is clear on the objectives they’ve been set and on the consequences of their underperformance.
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D Topping v Steppingstones Nursery (Hoddlesden) Limited
Darci Topping was employed by Stepping-Stones Nursery in Hoddlesden when she found out she was expecting her first child in March 2020. Her employers were informed a week after starting her new job.
The 23-year-old who was on minimum wage at the time was questioned about her pregnancy by her managers and was quizzed about the baby’s father and her intention to go through with the birth. The employment tribunal heard that she was pressured into reducing her hours as the Covid-19 pandemic hit and then made redundant unexpectedly.
The tribunal judge found the nursery liable on all counts of detriment on grounds of pregnancy; unfavourable treatment on grounds of pregnancy; and unfair dismissal on the ground of pregnancy.
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Unfair Dismissal Claims & How to avoid them
Unfair Dismissal Claims & How to Avoid Them
An unfair dismissal can occur when your employer terminates your contract of employment with or without notice or the employee terminates their contract of employment with or without notice due to the conduct of your employer.
A dismissal is automatically considered to be unfair if you are dismissed for any of the following reasons:
- Membership or proposed membership of a trade union or engaging in trade union activities
- Religious or political opinions
- Legal proceedings against an employer where you are a party or a witness
- Race, colour, sexual orientation, age, or member of the Traveller community
- Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
- Availing of rights under legislation to maternity leave, adoptive leave, parental leave, carer’s leave, parental leave, or force majeure leave
- Unfair selection for redundancy
Steps to avoid Unfair Dismissal
Have clear policies
It is important to ensure that all new and current employees have access to the companies’ policies regarding harassment, dress code and attendance policies. The policies must be easy to read for the employee and available to them at any stage during their employment. These policies are not only to keep employees informed but they are used as important reference points to use as the employer during the disciplinary process. Failing to follow these policies can result in an unfair dismissal claim.
HR & Equality training
Employers need to make sure that the dismissal is thoroughly thought through beforehand and is not an impulsive retaliation to an employee’s actions. By providing training for all staff members involved in the dismissal process you will know that the process is being conducted legally.
Keep track of employee conduct
Terminating an employee can sometimes devolve into a he-said she-sad argument with no clear winner. Without proper documentation, it can be difficult to terminate an employee without fearing an unfair dismissal claim. When you begin to see that an employee might not be suitable for your company, start keeping track of their misconduct. Use a word document or journal to keep track of any problems the employee encounters. For example, take note of any time they showed up late or were not dressed appropriately.
Implement a performance management plan
When you first discuss with the employee about potentially dismissing them, you will need to set up a performance management plan to give your employee a chance to improve. If you still need to terminate this employee, the document plan shows that you tried to help your employee. Employers can do this by setting up parameters and goals for their improvement.
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Tribunal Case: Refusal to get Vaccinated
In the Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held that a care home worker was fairly dismissed when she refused to get the vaccination against Covid-19.
Background
Ms Allette worked in a nursing home that provides residential care for people with dementia. In December 2020, staff were encouraged to have their Covid-19 vaccinations to protect their staff and residents. By the middle of January 2021, the nursing home changed their approach and required that staff had to be vaccinated to continue their employment. There had been a Covid-19 outbreak in the nursing home which resulted in the deaths of multiple residents. There was nothing in Ms Allette’s contract of employment that required her to be vaccinated nor was there anything in the nursing homes disciplinary procedure about the termination of employment due to the refusal to get the vaccine.
By the middle of January 2021, it was now made mandatory for staff in the nursing home to be vaccinated, and there was a risk of disciplinary action if she refused to get vaccinated. Ms Allette did not want to be vaccinated as she was concerned over the safety of the vaccine. She was dismissed from the workplace for gross misconduct at the start of February 2021. Her Rastafarian beliefs include being opposed to any form of non-natural medication was reason for her refusal. Her appeal against the dismissal was unsuccessful.
Tribunal Claim
Ms Allette brought claims to the employment tribunal (ET) that her dismissal was unfair due to the right to respect her private life under the European Convention on Human Rights. She also argued that the dismissal was wrongful as it was in breach of the contract.
Employment Tribunal Decision
In relation to Ms Allette’s unfair dismissal claim the ET acknowledged that the employer could have:
• Given her more opportunities to change her mind
• Placed her on unpaid or paid leave
• Sought further scientific information or material to persuade her that the vaccine was safe and necessary.
The tribunal refused to conclude that no employer would have responded the same as the care home did in the circumstances of this case.
They accepted that the nursing home cannot be in direct breach of Act.8 (on the right to respect for private life) of the European Convention on Human Rights because it is not a public authority. The tribunal went on to conclude that the employer's interference in Ms Allette's private life was justified in this case. The tribunal had to consider the balance between her right to a private life and this small employer's legal and moral obligation to protect its vulnerable residents.
When rejecting Ms Allette’s wrongful dismissal claim the ET accepted that the rights of the residents, staff members and visitors outweighed the impact that the requirement to be vaccinated had on Ms Allette.
In relation to her wrongful dismissal claim the ET accepted that there was nothing in her contract that required her to have the vaccine. However, the ET accepted that the nursing homes instructions to their employees that you had to be vaccinated to remain employed was within reason due to the:
• state of the COVID-19 pandemic nationally at that time
• consequences of the care home's outbreak
• advice on the virus and vaccination from public health authorities in England.
The ET found that there was mistrust between Ms Allette and the nursing home’s management team on what she was being told about the safety of the vaccine. According to the tribunal her decision was not made by any religious beliefs and the reason for her not to get vaccinated was unreasonable.
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Covid-19: The Most Recent Tribunal Cases
There is no doubt that there is a rise in tribunal cases, recent cases include the refusal of returning to the office in fear of catching the virus. It is important as an employer to understand what employees are entitled to and understanding that there is still a fear surrounding Covid-19
Two of the most recent tribunal cases, Moore v Ecoscape UK Ltd and Lewis v The Benriach Distillery Company Limited discuss the claims and outline the decision that the employment tribunal (ET) came to.
Moore v Ecoscape UK Ltd
Ecoscape required Moore to return to working from the office. Moore sought to rely on section one hundred of the Employment Rights Act 1996, to which a dismissal is automatically unfair where an employee believes that they are in ‘serious and imminent danger’ if they leave or refuse to attend the workplace while the danger persists.
Ecoscape conducted various Covid risk assessments and adjusted the office and sanitisation procedures. They also provided Moore with a separate working space with her own equipment to address the concerns that she had. She was still reluctant to return and asked if she could work from home. Based on the nature of her work, the employer refused this request as she deals with deliveries and customers. She raised a grievance and a grievance appeal, but both were unsuccessful. She resigned and brought a claim for constructive unfair dismissal.
The ET found that the claimant’s Covid concerns related to a general fear about leaving the home and not about the employer’s workplace. She failed to involve herself with the discussions with Ecoscape about the measures they implemented and refused to visit the workplace to review those measures.
The ET concluded that Ecoscape had taken appropriate steps to accommodate the concerns of the claimant and that they failed to explore any compromises proposed by Ecoscape. In a result the claimant’s claim failed.
Lewis v The Benriach Distillery Company Limited
Mr Lewis was a forklift driver for a whisky distillery. He served 23 years of good service and was dismissed without notice for attending work when his son informed him of having symptoms of Covid-19 and had booked a Covid test. Lewis did not believe his son’s symptoms (a cough and loss of smell) were genuine. He thought his son was faking his symptoms so he could get off work.
At the time the Scottish government’s guidance required anyone who lived with someone displaying symptoms to isolate. His sons test came back positive the next day and Lewis was dismissed for gross misconduct.
An ET found that Lewis’ dismissal was unfair. There was nothing in the government’s guidance that would require someone to self-isolate if Lewis genuinely believed that his son was not in fact displaying Covid symptoms.
While assessing the case, the employer should have taken into consideration:
his 23 years of good service
his record of compliance with Covid guidance; and
that there was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.
The ET found that there was some contributory fault from Lewis so reduced his financial awards by 25%.
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Case Law: Discriminatory Dismissal
In the recent case of Stott v Ralli Ltd the Employment Appeal Tribunal ruled that the dismissal of an employee was not an act of discrimination arising from disability. In this case the Claimant was employed as a paralegal by Ralli Ltd for approximately three months. Ms Stott was dismissed by her employer due to poor performance and was paid lieu in notice. Following the dismissal meeting, the Claimant raised a grievance against Ralli Ltd and stated that Ralli had been informed of her mental health issues in several communications. At the grievance meeting, she stated that her disabilities were mental health issues, anxiety, depression and a heart condition which she claimed had affected her performance.
Ralli rejected her grievance, stating that they had not been informed about her disabilities. Her appeal against the rejection was also unsuccessful. The Claimant then went on to bring a claim in the Employment Tribunal for discrimination arising from disability in relation to her dismissal. Ralli accepted that the Claimant had a mental impairment amounting to a disability at the time of her dismissal but argued that it had not been known about at the time and that it had only been raised after her dismissal.
The Employment Tribunal dismissed Ms Stott's claim, finding that the Claimant had been dismissed for poor performance and that the Claimant had not disclosed her impairment to Ralli prior to her dismissal. Had the Claimant pleaded her claim more widely to include post-dismissal discrimination, relating to the grievance process and subsequent treatment (when the employer had knowledge of her disability) the outcome may have been different.
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Don't Get Caught Out: Discrimination Case Law
We are all aware of how it is against the law to treat someone less favourably due to their gender, race, religion, age etc, but this does not mean that discrimination does not still occur in the workplace. In a recent case, the Employment Tribunal (ET) ruled in favour of an employee who was discriminated against when she was dismissed while on maternity leave for refusing to accept a lesser role with a £20,000 pay cut.
The claimant claimed that when she informed her colleagues of her pregnancy, she was asked how the pregnancy would affect her long-term career goals and the all-male executive team subjected her to "offensive and humiliating" comments, announcing they should "put a wager" on how much weight she would gain during her pregnancy.
During her maternity leave the company went through a restructure which included the dismissal of several executives. The new chief executive excluded the claimant in the restructuring and the claimant discovered from HR that she was no longer on the company email distribution lists or on the new organisational chart and was at risk of redundancy. In response, the company sought to offer her a revised job description for the director of marketing role which was a lower-level role than marketing director and also involved a £20,000 pay reduction. The claimant refused the role and was subsequently made redundant by the company.
The ET upheld her claims of unfair dismissal and maternity discrimination as there was a stark difference in the treatment the claimant received compared to her male colleagues, with the only explanation being due to the fact that she was on maternity leave. The tribunal found that not only was the job description offered to the claimant copied from other websites but also that no such role existed and the retained executives did not have their salaries reduced in order to stay with the company.
Although, a claim of harassment on grounds of pregnancy and maternity cannot be brought under the Equality Act, the ET concluded that the claimant was subjected to a “humiliating and degrading environment” when her colleagues placed a bet on how much weight she would gain during her pregnancy and that this amounted to direct discrimination and the ET awarded her £25,000 plus £5,000 in interest for injury to feelings.
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Redundancy in the UK: A Guide to Avoiding Unfair Selection
As you all know the Coronavirus Job Retention Scheme has now entered its final month and will draw to a close on the 30th of September 2021. With this scheme coming to an end companies are now unfortunately faced with the possibility of redundancies having to be considered. The number of redundancies in the UK has accelerated at the fastest pace since the financial crisis. According to ACAS, redundancy related calls to their helpline have increased by over 160% compared to 2019.
If redundancies must occur then we see the following steps should be adhered to:
Collective Consultation
If an employer is proposing to make 20 or more employees redundant at one establishment within 90 days, collective consultation will be required with trade union or employee representatives.
For employers who collective redundancy applies to and who wish to make redundant by the end of the furlough scheme, they would have needed to commence their collective redundancy consultation by the 31st of August 2021.
Non-Collective Redundancy
If collective redundancy does not apply and your redundancies are on an individual level this is non-collective redundancy which is less than 20. In this case;
- You should aim to avoid compulsory redundancies through: voluntary redundancies, agreed short-time working or other flexible staffing arrangements.
- You should also carry out a consultation with every employee individually. The consultation must be meaningful and your plans must not be finalised at this stage.
Next is selecting staff for redundancy. Employers should use fair and objective criteria. Ideally, all employees at risk of redundancy should be put in a selection pool and assessed upon criteria such as: Standard of work, experience / qualifications and disciplinary record. Selecting those who have been on furlough over other employees may not necessarily be fair – these employees may have been parents with childcare issues or individuals with disabilities, so there could be a risk of a direct or indirect discrimination claim.
Notice of Termination
Once you have selected staff for redundancy, you need to give employees notice of their redundancy. The statutory redundancy notice periods are:
- At least one week’s notice if employed between one month and 2 years
- One week’s notice for each year if employed between 2 and 12 years
- 12 weeks’ notice if employed for 12 years or more.
It is always advisable to check your contracts of employment as the contractual notice agreed may differ to statutory notice. Where contractual notice is greater than statutory notice, contractual notice will apply. However, where the contractual notice is less than statutory notice, statutory notice will apply.
Statutory notice pay is protected. If the notice in the contract is the same or less than the applicable statutory notice, 100% of the employee’s normal pay should be paid during the notice period.
However, things are slightly different where contractual notice is greater than the statutory notice period. If contractual notice is greater, by at least 1 week, an employee should receive their normal full pay as long as they are working. If they are not working, they should receive what they would have normally been paid for that absence.
So, if you have an employee who is out of work due to furlough and being paid at 80%, and this employee’s contractual notice is greater than statutory notice, they may be paid at 80% for their notice period. For this reason, it is extremely important to always check the contract of employment.
Redundancy Payments
An individual is entitled to statutory redundancy pay if they are an employee and have been working for the employer for 2 years or more.
- One week’s pay for each full year they have worked when 22 or older, but under 41 years old.
- Half a week’s pay for each full year they have worked under 22 years old.
- One and half week’s pay for each full year they have worked when 41 years old or older.
Redundancy pay is capped with a length of service being 20 years. For employees made redundant on or after 6 April 2021, a weeks’ pay is capped at £544, so the maximum statutory redundancy they can receive being £16,320.
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Role Changing During Covid-19 - Can the employer require its employees to take on different roles to cover absence?
An employer can expect its employees to carry out different roles within the business where their contract of employment permits this. The employer should consider the relevant job descriptions to see if they comprise of the proposed changes, or if the contract contains a flexibility clause that allows the employer to vary the employees' roles and/or duties. If the employment contract does not allow for this, employers must be aware of the difficulties of imposing contractual changes which could potentially result in claims for constructive unfair dismissal. Any changes to the contract of employment should therefore should be undertaken with early consultation and with a view to reaching agreement with employees.
During the COVID-19 outbreak, employees may be more prepared to accept changes to their contract of employment where there is an imperative need for the work to be carried out, or where the viability of the business may be at risk. Employees may be willing to take on different roles if they are aware that it is for a brief period. The employer should be as transparent as possible with employees about the duration of any changes to their roles. An employee may be seen as having agreed to contractual changes if they carry out the varied role without any complaint.
Employers should ensure that suitable training is provided to any employees who may be required to carry out unfamiliar tasks and a risk assessment should be carried out to cover the temporary redeployment. For example, young or pregnant workers should not be substituted into inappropriate work.
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