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Employment Tribunals - A Client Success Story

ARTICLE ORIGINALLY PUBLISHED APRIL 2008

Miss X worked at a salon in the south of England and, after 2 years despite all the efforts of her Employer, was still struggling to complete her training. There had been several promised completion dates but these were always missed.

Miss x had already received a verbal and a written warning for her conduct. This allied to her inability to complete her training made her far from the ideal employee.

It appeared that she might eventually be about to complete her training as she had one module to complete. The Salon paid for an assessor to undertake the assessment on the Salon premises on a day they were normally closed. Models were even arranged on her behalf.

The assessor and models arrived but the time for Miss X to arrive came and went. Eventually over an hour late she arrived claiming she had a prior arrangement and pointing out that she was coming to work on her day off. Unfortunately the assessor and models had, by now left.

The Salon owner was livid and felt this time Miss X had gone too far. Miss X was suspended and invited to a disciplinary hearing. At the hearing the Salon owner wasn't persuaded there was any acceptable explanation for Miss x being so late and she was dismissed. Miss X appealed against her dismissal but this was also unsuccessful.

So far so good, Miss x had finally gone a step too far and the Salon owner was satisfied that she had made a perfectly legitimate decision .She considered this to be gross misconduct.

THE OTHER PERSPECTIVE

Of course there is always another side of the coin. Miss X argued that the Salon would have been closed on the day they arranged for her assessment and as such she wasn't scheduled to work. How could she be dismissed for being 70 minutes late for a non-workday?

She claimed that various comments had been made to her following her dismissal and that she had been given contradictory reasons for her dismissal at the initial hearing and the appeal.

She also queried why she had jumped from a written warning to dismissal rather than being given a final warning.

She submitted her claim for unfair dismissal to an Employment Tribunal supported by a Solicitor.

The Salon Owner was dismayed and began to worry about the potential costs of preparing for the Tribunal and also the possible costs of losing the case.

Should she get legal advice to fight the case? The problem was that the legal costs would probably have been greater than agreeing a settlement with Miss X. This situation is not untypical and explains why many cases are "settled" through ACAS.

She considered her options and decided that her decision to dismiss had been perfectly legitimate. I was able to offer some guidance about what actually happens at a Tribunal and she bravely decided she would represent herself.

The next stage was for the Salon Owner to respond to the Employment Tribunal application. The temptation was for her to itemise everything Miss X had ever done wrong.

However, the Tribunal is primarily concerned with the decision to dismiss and its fairness. I am simplifying the issue a little but basically the Tribunal look at the process followed and "whether a reasonable employer" could have dismissed Miss X.

The Salon collected all of the information that would be used for her case. Pleasingly she had a disciplinary procedure and had well written notes from the hearing and appeal, all of the decisions had been confirmed in writing. In short she wasn't going to be tripped up by any gaps in her process.

The next stage was for the Miss X to submit her "schedule of losses" (in short what she was claiming as compensation). This is made up of the award for unfair dismissal and then, much more significantly the loss of earnings.

It takes several months for a case to reach the Tribunal if the employee had failed to gain alternative employment (as was the case here) the costs escalate.

The total claim was for several thousand pounds.

On receipt of the claim the Salon owner once again began to have concerns.

Whatever she did she would have to be away from the Salon for a day but to then lose the case and have a hefty bill to pay wasn't a mouth watering prospect.

This is sometimes the time to stand back and fully evaluate the strength of the case as a whole. Employers must not forget that the employee faces a similar dilemma Does Miss X continue with the claim and hope to win the full amount? Even if she were to win she would have her legal costs to pay. Of course individuals also have to consider the likelihood of losing and still having legal costs to pay.

In my view the Salon had a strong case. We were happy the overall circumstances of case meant that the decision was reasonable.

Having considered the position, the Salon owner offered a token amount to settle the case, at the end of the day this was less than her lost income in taking a day off work.

After a little minor discussion re the figure agreement was reached and the case "settled".

An agreement was then produced by ACAS and signed by both parties.

If you are in the glass half full camp then the Employer made the right decision to dismiss and would have won at Tribunal, the token settlement made good business sense.

However the glass half empty perspective is that, even with a strong case the Employer was forced to hand over money to an employee who had rightly been dismissed.

To end on a positive note, I think this case shows the value of having an effective disciplinary procedure. Utilised properly the disciplinary procedure is a very effective tool for Salons, make sure yours is up to date and fit for your purposes.



David Wright Personnel

Phone - 01302 563 691

Mobile - 07930 358 067