Unfair dismissal qualifying period: case study 1
Sarah-Marie Williams and Matthew Ditchfield of Clyde & Co LLP continue a series of articles on the unfair dismissal qualifying period with a case study that looks at a situation in which an employer dismisses an employee with short service but the employee is still able to bring an unfair dismissal claim.
Go-Easy Products Ltd
supplies leisure goods and clothing to stores across the
Martin is also based in the
Customer relations officers are awarded an annual bonus based on the number of complaints that they successfully resolve. During June 2012, Joanne, who is also Martin's manager, reviews the recent monthly reports that Martin has prepared. The reports indicate that he has resolved 30% more complaints than during the same period in the previous year. Joanne thinks that 30% is an unusually high figure and believes that Martin's reports do not reflect the true number of complaints that he has resolved. She suspects that Martin is attempting to claim a bigger bonus than he deserves. Following further investigation, which supports her suspicions, Joanne initiates Go-Easy's disciplinary procedure. She invites Martin to a disciplinary hearing to address allegations that he has fraudulently recorded complaints. Martin asks Jane to accompany him to the disciplinary hearing because he feels that her no nonsense approach will work to his advantage. The disciplinary hearing is set to take place at the beginning of July.
Prior to the meeting, Jane takes some time away from her duties to review the papers and meet Martin to discuss his response to the company's allegations. At the meeting, Jane takes an active role in proceedings. She is critical of Joanne's handling of the situation and strongly opposes the allegations that she has made against Martin.
During the meeting, Martin gives an explanation as to why his figures have increased. Joanne adjourns the meeting so that the company can investigate further. However, she feels quite antagonised and irritated by Jane's behaviour. She considers that Jane was overly obstructive and unhelpful in the meeting. After the meeting she mentions to her manager, John, that she thinks that Jane tried to use Martin's disciplinary meeting to undermine her. She also says that she does not think that Jane should have taken time off before the meeting and that it was not appropriate for Jane, being a very new employee, to attend the meeting as Martin's representative. She thinks that this heralds that Jane may be a disruptive influence on other employees and cause trouble in future. She decides not to confirm Jane in post. Joanne thinks that, as Jane has been working for the company for only a short period, there will be no problem with this and that Jane will be unable to claim that her dismissal is unfair. In her probationary review meeting, Joanne tells Jane that she is unsuitable for the job and has "the wrong attitude". She sends Jane a letter terminating her employment. The letter does not make reference to Jane's performance or conduct during her three months' service with the company but merely states: "Go-Easy Products Ltd believes you have failed to demonstrate your appropriateness for the position of customer relations officer during your three-month probationary period."
Jane is very surprised by her dismissal. Up to that point she thought that she had been doing well. She had exceeding her targets and had lots of positive feedback from clients and colleagues. She suspects it is because she acted as Martin's companion at his disciplinary meeting and decides to bring an unfair dismissal claim.
Can Jane claim unfair dismissal even though she has only three months' service?
To claim unfair dismissal, an employee must generally have a minimum period of continuous service at the effective date of termination. This period increased from one year to two years on 6 April 2012 (see Unfair dismissal qualifying period: overview in this series for more details). Jane joined Go-Easy on 12 April and, as a result, would normally need two years' service to bring a claim.
However, although Jane has only three months' service with Go-Easy, she could, potentially, bring a claim of automatically unfair dismissal against it. If an employee is dismissed for one of a number of specified reasons, he or she does not require a minimum period of service to bring an unfair dismissal claim. These are reasons that are automatically unfair reasons for dismissal (see Unfair dismissal qualifying period: exceptions). An employee bringing a claim of this nature must be able to show that, on the balance of probabilities, the reason, or if more than one the principal reason, for dismissal was an automatically unfair one and the burden of proof is on the employee in this regard.
Under s.12(3) of the Employment Relations Act 1999, a worker is automatically unfairly dismissed if the reason for the dismissal is that he or she exercised (or sought to exercise) the right to be accompanied at a grievance or disciplinary hearing, or accompanied (or sought to accompany) another worker at a grievance or disciplinary hearing. Under s.12(4), the employee does not need a qualifying period of continuous employment to bring a claim under s.12(3). If Jane can show that her dismissal falls within s.12(3) and can be attributed to her acting as a companion at Martin's disciplinary hearing, she will have a claim for automatically unfair dismissal.
Companions at disciplinary (and grievance) hearings are entitled to address the hearing to put and sum up the worker's case and respond on the worker's behalf to views expressed during the hearing. They can also confer with the worker during the hearing. Companions are also entitled to reasonable time off to carry out their functions. According to the Discipline and grievances at work: Acas guide (PDF format, 898K) (on the Acas website), this "should cover the hearing and it is also good practice to allow time for the companion to familiarise themselves with the case and confer with the worker before and after the hearing". The company is vulnerable if Jane can show that she was dismissed for acting as a companion within the parameters permitted and/or for taking reasonable time off to prepare for Martin's hearing.
In Evans v Open Sight ET/3100599/11, the employment tribunal found that the reason for Mrs Evans' dismissal at the end of her probationary period was her role as a companion at colleagues' disciplinary and grievance hearings, rather than capability and conduct as cited by the employer. The tribunal highlighted various factors that led it to this conclusion, including that:
- there was no evidence that Mrs Evans was underperforming during her probationary period;
- the employer did not address issues of underperformance with the employee before the probationary meeting;
- the notes of Mrs Evans' acting line manager contained a brief reference to attendance at the three hearings being inappropriate; and
- the dismissal letter did not refer to conduct or performance issues.
In her claim, Jane will be able to rely on the lack of reference to poor performance or conduct prior to, or during, her probationary interview. She will also be able to point to the fact that her dismissal letter did not identify performance issues and the company provided her with no documentary evidence that she was not suitable to work as a customer relations officer. She could point to her good record during her short service and the proximity of Martin's disciplinary hearing to her dismissal as evidence that she was dismissed because she acted as his companion at it. Joanne's evidence at the tribunal could assist Jane's claim, as could Joanne's manager's if he is called as a witness and refers to the conversation between them in which Joanne indicated her dissatisfaction with Jane's role at Martin's disciplinary hearing.
Jane's claim goes to an employment tribunal. The tribunal concludes that, on the balance of probabilities, the principal reason for Jane's dismissal was her role at Martin's disciplinary hearing. Go-Easy is ordered to pay Jane compensation for unfair dismissal.
Next week's topic of the week article will be a second case study around the unfair dismissal qualifying period and will be published on 28 May.
Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a legal director and Matthew Ditchfield (Matthew.Ditchfield@clydeco.com) is a trainee solicitor at Clyde & Co LLP.
Further information on Clyde & Co LLP can be accessed at www.clydeco.com.
