Employers should be aware of the responsibilities and legal obligations they owe to their employees, otherwise it can land them in hot water. It’s easy for employers to not consider the legal obligations owed and end up in court. Employers need to be aware that once an employee has been employed for a period of 103 weeks’ they will be awarded an extra protection called Unfair Dismissal.
It is also important to note that Employment Tribunal claims are free to bring, stressful, expensive and it can take around 12 months for a case to proceed to a final hearing (this previously used to be around 6 months before the pandemic).
What is Unfair Dismissal?
Unfair dismissal may occur when an employee, employed for over 2 years has been dismissed based on one or all of the reasons below:
- No fair reason to dismiss the employee.
- The reasoning for the employee’s dismissal cannot be justified. This may be the case where an employee is dismissed for a misconduct offence, when it would have been appropriate to issue a first written warning.
- The employer has failed to follow a fair procedure.
Background
A recent case was heard at Cardiff Employment Tribunal, in which a barber was fired for calling in sick on Mondays.
The employer, Acute Barbers, had noticed that during Ms Thorley’s 4-year employment period she had a pattern of calling in sick on Mondays. Mr Donnelly, the owner of Acute Barbers, had apparently issued Ms Thorley with a number of verbal warnings previously.
The issue of calling in sick came to a head on the last weekend of October 2021, when the owner of Acute Barbers, Mr Donnelly said to her, “Don’t let me down on Monday”.
Subsequently, on Monday morning Ms Thorley texted Mr Donnelly stating:
I know you’re going to be mad at me but I can’t make it to work…my stomach is killing me and I’m all shaky…I’m soo sorry!
Ms Thorley argued that she was suffering from endometriosis, however, failed to provide any medical evidence to prove that she had a formal diagnosis or was on a waiting list to receive a formal diagnosis.
Decision
Judge Roseanne Russell, upheld Ms Thorley’s claim that she had been unfairly dismissed, as Acute Barbers had failed to provide any formal warnings during her employment, stating that “a fair process had been ignored altogether”.
The failure was not inadvertent but deliberate. This was demonstrated by Christian Donnelly telling the claimant to ‘Crack on with all the legal s***.
Acute Barbers have ordered they pay Ms Thorley a total of £3,453.
The “Take Home”
It is apparent that if Acute Barbers had taken advice before dismissing Ms Thorley, a different outcome would have taken place.
An Employment Tribunal will always assess whether or not an employer has taken into account or followed the ACAS Code of Practice, failure to follow the code can result in any compensation awarded being increased by up to 25% for unreasonable failure to comply with any provision of the Code.
It is clear in the case outlined above, that Acute Barbers did not carry out any investigation or formal disciplinary action into Ms Thorley’s sickness absence before dismissing her. It is noted that Mr Donnelly set out that he issued her with verbal warnings, but this is not enough to justify or evidence that a fair process had taken place in dismissing Ms Thorley.
If an employee has over 2 years’ service and no potential discrimination or whistleblowing claim, you can look to dismiss them provided you have followed a fair procedure in dismissing them. If you fail to do this, you will end up in the same position Acute Barbers have been faced with and the chances are you may need to pay the ex-employee a much bigger sum than £3,000.
We would advise that before dismissing any member of staff, even if they have less than 2 years’ service, you should seek legal advice first.
At Bater Law we offer a HR Retainer for businesses; HR can be a minefield, we can be there to take that headache away from you, so you can carry on running and growing your business.
If you have any questions, please do not hesitate to contact us at [email protected]