Unfair dismissal employer mistakes examples

How things can legally go wrong for employers.

Recent Examples

We have recently seen some mind boggling examples of employers making mistakes and going all the way to the Employment Tribunal only to lose.  The common thread with each of these examples is that the claims could have been avoided with some thought and attention.  We highlight two examples and explain what could have been done to avoid a claim.  We also recap briefly the legal position to be mindful off.

A win on unfair dismissal, discrimination and harassment.

What the employer did wrong

The employer stopped paying statutory sick pay suddenly and without warning, and when challenged told the employee “we aren’t a charity you know.”

Background

Peter suffered a heart attack in November 2018 and was on long term sick leave, during which he received statutory sick pay. In June 2019 his employer stopped paying SSP. Peter attempted to contact his employer on multiple occasions, before finally being told “we aren’t a charity you know.”

Peter was able to show he had been dismissed from the date the SSP payments stopped, and that there was no fair reason for his dismissal. He also showed he was dismissed because of his disability, and that his treatment by his employer was humiliating and amounted to harassment.

What the employer could have done

Peter’s employer made no effort to follow a fair dismissal procedure, or even to defend itself at the employment tribunal (the employer did not attend the hearing). Instead, they simply stopped paying and hoped Peter would go away.

A fair procedure might have been to consider whether Peter had the capability to continue in work, and if the answer was “no” to dismiss him on that basis. Peter was a courier and his heart attack meant that he could not drive for at least a year, so it is likely that with a little thought the employer could have dismissed him fairly. This could have been done at relatively little cost to the employer, and certainly would have avoided the cost and negative publicity of this widely reported case.

Claims for unfair dismissal, age and disability discrimination and harassment

What the employer did wrong

ASDA allowed its staff to harass Joan, a 73 year old woman with dementia, to the point she was forced to quit.

What the employer could have done

There is no question that Joan was slowing down and was not capable of doing her former job. The employment tribunal itself acknowledged that had ASDA followed a fair procedure Joan would have been dismissed before the end of 2020. As it happened, ASDA’s failure to manage the process allowed Joan to resign on 25 September 2020 and claim constructive unfair dismissal.

The published judgement did not consider how much Joan should be paid in damages, but the employer could certainly have saved money by following a fair procedure. This would have involved performing a capability assessment to determine if she was still able to perform her role.

How do you dismiss someone fairly?

In both cases discussed above the employers failed to put in place any procedure to take control of events. In either case the employee could have followed a fair procedure and lawfully dismissed the employees.

In these two cases the employees could have been dismissed as they lacked the capability to remain in their positions. The other possible fair reasons for dismissal are redundancy, illegality (i.e. where the employee’s visa has expired, for instance) or conduct (where the employee is failing to perform as required, which might necessitate written warnings and a performance management plan). Whatever the procedure, we can help ensure it is defensible and avoid a trip to the employment tribunal.

If you need help navigating the world of employee dismissal’s or believe you may have been unfairly dismissed, please do give us a call on 0207 438 1060 we would be happy to discuss.

Alex Kennedy

I know that when the noise dies down there is a solution to be found. I set about that task as quickly as possible.

Let us take it from here

Call us on 020 7438 1060 or complete the form and one of our team will be in touch.