Claim for Unfair Dismissal – Conduct Dismissal
Mr Walker has been working as a Service Manager for three years at a well-known motor company. He is called into a meeting without notice by his manager and is told that a client had made a complaint about him and therefore the Company was dismissing him for gross misconduct, without notice. He is told to leave the premises and is sent his P45. Mr Walker lodges a complaint to the tribunal for unfair dismissal.
Mr Walker’s legal representatives help prove that the dismissal was unfair as proper procedures were not followed, there was no investigation and Mr Walker’s employer did not come to a reasonably held belief in his guilt.
Mr Walker obtains permanent alternative employment of a higher pay within 6 months and demonstrates that has made every effort to find work. The Employment Tribunal awards him compensation for loss of earnings, compensation for the fact that he will have to work for a period of 2 continuous years in order to gain the right not to be unfairly dismissed and what is known as a basic award. In addition, the Employment awards an uplift of 25% to the compensatory award to reflect its finding that it failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.
The Company’s legal representatives help prove that the complaint was actually made by a client, that the allegations were very serious in their nature and, if a proper procedure had been followed, Mr Walker would have been dismissed within a period of 3 weeks.
The Employment Tribunal finds that the dismissal was unfair as procedures were not followed. However, it awards him a reduced sum of compensation to reflect the fact that Mr Walker would have been dismissed within a short period of time if a fair procedure had been followed.
Two months before the hearing and before Mr Walker obtains alternative employment, Mr Walker’s legal representatives persuade the Company that it is likely they will lose and that substantial compensation could be awarded against them. After a period of negotiation, the Company agrees to pay Mr Walker a sum of compensation. Mr Walker agrees to withdraw his claim and not to bring any other claims against the Company.
Miss Leigh has been working as an in-house accountant for a National Company for 2 years. Miss Leigh is generally unhappy with the way in which she has been treated at work. One day, her manager hurls a tirade of abuse at Miss Leigh in the presence of Miss Leigh’s colleagues in relation to a minor error that had allegedly been made. Miss Leigh then continues to work for her employer without raising a grievance and accepts a new project. One month later, she resigns with immediate effect stating the abuse she was subjected to by her manager as the reason. She then lodges a claim to the Employment Tribunal for constructive and unfair dismissal.
Miss Leigh’s legal representatives help prove that the tirade of abuse constituted a fundamental breach of the implied term of mutual trust and confidence and it was open for Miss Leigh to accept and communicate that breach to her employer by resigning. Further, although it was argued by the Company that Miss Leigh had waived the breach by the delay to her resignation and accepting another project, the Tribunal find that she accepted the new project as she was given no choice by her employer and the delay to her resignation was not significant enough to prove that she had waived the breach of the implied term. It further finds that the reason for her dismissal (the abuse that led to her resignation) was for making a minor error and that reason was unfair. Miss Leigh succeeds in relation to her claim for constructive and unfair dismissal and is awarded compensation for loss of earnings. She is also awarded a sum of money to reflect the fact that she will have to work for a period of 2 continuous years in order to gain the right not to be unfairly dismissed and a basic award.
Miss Leigh is not legally represented. The Company’s legal representatives persuade Miss Leigh that the tirade of abuse may not constitute a fundamental breach of contract and, even if were wrong, she would not be successful due to the delay to her resignation. Miss Leigh feels she cannot continue with her case and writes to the Employment Tribunal withdrawing her claim.
Miss Leigh’s legal representatives persuade the Company that the tirade of abuse is undoubtedly a fundamental breach particularly in view of the fact that it was made in the presence of Miss Leigh’s colleagues. Further, they persuade the Company that the reason for her resignation was due to these circumstances and, on balance, it was likely that an Employment Tribunal would accept that a one month delay to her resignation would not result in a finding that she waived the breach. The Company agrees to make a settlement payment provided that Miss Leigh keeps the terms of the agreement confidential. They also agree a reference that will be provided to Miss Leigh’s potential future employer upon request and this is incorporated into the agreement that is signed by both parties.
Mr Jones works in the car industry as a Senior Sales Executive for eight years. Each year, he is set sales targets which have been increasing for the last two years. Historically, Mr Jones has always hit his targets and has performed exceptionally. However, this year, there has been an economic downturn in business and he is unable to meet his targets. He is called into a meeting and informed that, unless he meets his targets, he will be put under a performance improvement plan (PIP) and could be dismissed.
The Company feel that there is no reason that Mr Jones has not hit his targets this year and take advice. Upon taking advice, they place him on a performance improvement plan and set reasonable targets making him fully aware of the problem. The Company do everything they can to help Mr Jones improve his performance. They carry out a proper investigation into the problem and then set reasonable targets giving him 9 months to improve. They provide him with support and his performance is reviewed regularly. At the end of the period, it is felt that his performance has not substantially improved and a meeting is held to ascertain whether he should remain with the Company. Following the meeting, there is a genuinely held belief in his incompetence and he dismissed. He is given the opportunity to appeal but his appeal is not upheld. Mr Jones doesn’t take legal advice but lodges a claim to the Employment Tribunal within 3 months of his dismissal. The claim goes to final hearing and the Tribunal unanimously dismiss Mr Jones’ case finding that the dismissal was fair falling within the reasonable band of responses of a reasonable employer.
Mr Jones felt that his employer effectively gave Mr Jones an ultimatum which was to meet impossible targets or to be placed under a performance improvement plan which would ultimately lead to dismissal. After an exchange of correspondence, Mr Jones resigns and brings a claim for constructive dismissal at the Employment Tribunal. Upon consideration of the evidence, the Tribunal finds that Mr Jones was given an target which was unrealistic, their conduct was such that, without reasonable or proper cause, it conducted itself in a manner that was calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee and therefore there was a breach of the implied term of mutual trust and confidence. His claim for constructive and unfair dismissal was made out. He is awarded compensation for loss of earnings.
Mr Jones’ legal representatives write to his employers setting out the lengthy factual background to his current position and the law including his potential claim for constructive dismissal and unfair dismissal if he is eventually dismissed. After around 4 weeks and after a lengthy exchange of correspondence, an agreement is reached where his employer agrees to pay him a severance and, in return, he agrees not to take any legal action. The matter is concluded by a settlement agreement and his employer pays a contribution towards his legal costs.
Mrs Shah felt discriminated against on one of the above grounds. She was treated less favourably at work by being isolated from other members of staff and being spoken to in a condescending manner. Her work was overly criticised and she felt that she was being pushed out of the organisation. Some of her colleagues in the same or similar position as her have not been treated in this way. Although she feels discriminated against, she feels that this will be difficult to prove. After taking legal advice, she finds out that discrimination can be proved by inference. She brings a claim at the Employment Tribunal for discrimination on one of the above grounds and the case goes to final hearing.
The Employment Tribunal hold that there was sufficient circumstantial evidence to suggest that she has been discriminated against including the fact that she has been less favourably treated than another person who did not share the same characteristics as her. Furthermore, her employer failed to show that the reason for the treatment afforded to her was for some other non-discriminatory reason. The case was proved primarily by inference and Mrs Shah is successful in proving her claim and is awarded compensation representing injury to feelings and another sum of money representing the financial loss she suffered arising from the discrimination.
The Employment Tribunal holds that there was sufficient circumstantial evidence to suggest that she has been discriminated against. However, it goes onto hold that the reason for the treatment afforded to Mrs Shah was in view of her manager having bad management skills and her claim fails.
Mrs White suffers from repetitive strain injury. She is a PA in a large well-known organisation and has been employed for just under 2 years. Her employer is aware of her condition and she has pointed out that she is often in severe pain when carrying out her typing duties. She then is sent to an Occupational Health Therapist who recommends adjustments to the equipment that she is using. Nothing is done. She then is off sick for a period of 2 weeks as a result of her RPI. When she returns to work she is called into a formal meeting and informed that her performance is not up to the mark and that a performance improvement plan is going to be commenced against her. She explains that her typing may have been slow due to her RPI. Nevertheless, a performance improvement plan is commenced and is subsequently dismissed. She lodges a claim to the Employment Tribunal complaining that she had been discriminated against on the ground of her RPI which she says she is a disability. Firstly, she alleges that her employer had failed to carry out reasonable adjustments to her equipment. Secondly, she complains that putting her on a performance improvement plan and dismissing her constitutes discrimination.
Mrs White proceeds with a claim. A preliminary hearing is listed to decide whether her RSI constitutes a disability for the purposes of the definition of disability discrimination. The Tribunal decides that it does not and her case is struck out.
Mrs White is successful in persuading an Employment Tribunal that the RSI constitutes a disability and goes on to win at an Employment Tribunal. The Tribunal find that her employer discriminated against her by failing to provide her with equipment that would not put her at a substantial disadvantage compared to other employees. It also finds that her employer discriminated against her by putting her on a PIP and subsequently dismissing her.
Mrs Harris works for a large corporate bank for 11 years. She has a good working relationship with all staff members and, in particular, her manager. She feels that she is treated fairly in general. Mrs Harris plans for a baby and, to her delight, falls pregnant. Upon informing her manager, she notices a change in her relationship. She notices that he is much more impatient and critical with her. He excludes her from a meeting and increases her workload drastically amongst other things. She eventually goes off on maternity leave but starts earlier than she otherwise would have due to the stressful environment she was working in. Before she returns back to work from maternity, she is called into a meeting and told that her position is redundant as the job is no longer required to be done. Mrs Harris knows that somebody to do her job is required and the job cannot be easily be absorbed by other people.
Mrs Harris seeks legal advice and instructs solicitors. Her solicitors question her employer about the role which has allegedly disappeared or absorbed. Mrs Harris also has reason to believe, through her colleagues, that her job has not disappeared and, in actual fact, the person who was recruited to cover her during her maternity leave is now permanently doing her role. A satisfactory response is not forthcoming from her employer and so a claim is lodged at the tribunal for pregnancy / maternity related discrimination. Her employers take legal advice and then become very worried about obtaining a judgment against them at Tribunal. They make considerable efforts to settle the case and the case is resolved before it is heard by the Tribunal.
Mrs Harris proceeds to an Employment Tribunal and wins her case. As well as concluding that her employer discriminated against her on the ground of maternity, they conclude that there was, in fact, a redundancy situation. However, they find that her claim for unfair dismissal is successful as there was a suitable alternative position which was not offered to her in priority of other staff pursuant to the Maternity and Parental Leave Regulations 1999. She was entitled to be offered this position as the redundancy occurred whilst she was on maternity leave.
Mrs Herbert has been working as a senior recruitment consultant for 6 years and started as a junior consultant. The Company calls her into a meeting. Present at the meeting are HR Business Partner and her line manager. She is told that she is at risk of redundancy and aspects of her job are going to be distributed to other employees in the Company. She leaves the meeting feeling devastated having worked and built up the business for many years. She is informed of a vacancy and is subsequently given the job description. Upon reading the job description, she realises that this ‘new’ job constitutes 80% of what she already does. She is informed that she can apply for this job. Mrs Herbert applies for the job but someone else gets it. She lodges a claim to an employment tribunal for unfair dismissal.
Her case is heard and she is successful. The Tribunal find that there was no redundancy situation as it was in her skill set to carry out the job and 80% of this new role was hers in any event. The Tribunal award a basic award, loss of statutory rights and loss of earnings. She has not found a job by the date of the hearing and she is awarded future losses of six months.
She loses her case. The Tribunal find that there was a redundancy situation and she was given a fair opportunity to apply for a new position and her application was considered fairly.
Mr Gupta was working within a pharmaceutical Company. He has been employed for just under 3 months. He raises issues with HR regarding working hours in excess of 48 hours and the fact that he witnessed general bad health and safety practices within the Company. He later informs a colleague of his report to HR who then proceeds to tell his Manager. Mr Gupta is then subjected to systematic bullying in the form of taunts, marginalisation and unfounded criticism. When he reaches 3 months of service, he is called into a probationary meeting lasting around 10 minutes and is told that due to unsatisfactory performance, he has not passed his probationary period and is being dismissed from the Company with immediate effect. However, the Company do not substantiate this. Further, they do not provide him with any evidence. Mr Gupta feels that his performance could not be criticised and that the Company is unjustified in terminating his employment based on performance. Mr Gupta attempts to resolve matters amicably with his employer and this fails. He lodges a claim to the Tribunal for unfair dismissal.
He wins. The Tribunal find that the real reason for Mr Gupta’s dismissal was that he had reported health a safety concerns to HR and these constituted protected disclosures or whistleblowing.
He loses. The Tribunal find that the reason for the dismissal was for reasons connected to his performance even though his employer did not substantiate it. They criticise the manner in which his employer carried out the dismissal but, as he did not have 2 years’ service to claim unfair dismissal and the dismissal was unconnected to the whistleblowing, the claim must fail.
Mr Philips is commences employment in what he considered to be an exciting new opportunity in a business which has recently been established. Soon after joining, he feels that he perhaps made the wrong decision in leaving his previous company and joining this one. Amongst other issues, he is not paid on time. After 5 months of working he subtly raises this with the MD stating that it is not right for his wages not to be paid on time, believing it to be against the law. A few days later, he is called into a meeting and it is stated to him that his employment is being terminated for performance related issues. Mr Philips believes that the real reason is due to his email complaining about the timing of his pay. He brings a claim to an employment Tribunal for automatically unfair dismissal pursuant to section 104 of the Employment Rights Act 2006.
An employer calls Miss B into a meeting without notice and says she has been provisionally selected for redundancy. She is given a settlement agreement and told to go home and consider it. She takes the agreement to a solicitor as she is required to do. The solicitor advises she has a case and the sum of money being offered is low. The solicitor advises her to negotiate for a higher sum of money.
Miss B instructs the firm to negotiate on her behalf and she gets and increased sum to her settlement agreement. She is delighted with the result.
Miss B decides to accept the sum of money that is on offer and signs the settlement agreement.
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