Emotionally Charged Dismissals: Employment Law/Case Round-Up (Part 2)

Emotionally Charged Dismissals - Employment Law/Case Round-Up (Part 2)Employees who feel fairly treated, heard and informed are far less likely to raise claims against their employer. This is why dismissing staff can’t be just about process and procedure. Equally important is understanding the employee relations – and potential employee relations fallouts that lead to Tribunal claims, damaged relationships, low morale and impacted profits.

In our last HR Blast, we looked at a few recent Tribunal Cases, reviewing the employment law decisions in these cases can help you avoid making the same mistakes. So, sticking to that theme, we’ll be looking at a few more cases as we aim to help you stay safe and free of legal hassles in 2022.

Age discrimination (younger workers)

Last year, a British teenager was sacked after just two shifts as a waitress. She won her unfair dismissal claim and was awarded £2,800. Expensive shifts! She was dismissed due to concerns about her age (14) in relation to H&S considerations.

She had declared her age upfront and it would appear that her employer was somewhat confused about the grounds for dismissal, seemingly acting on instinct rather than any clear information or decision making

Learning points:

  1. If you think a H&S risk assessment is needed for a specific role, carry this out before someone starts to work for you wherever possible.
  2. Don’t make judgements about what can or can’t be done just based on someone’s age.
  3. Never underestimate the tenacity and determination of the younger generations to assert their rights!

Age discrimination (older workers – part 1)

In another case, an employee in their 60’s who was asked when they were thinking of retiring won their age discrimination claim. The Tribunal decided that a younger employee would simply not have been asked the same question.

The compensation on this one has not yet been announced.

Learning point:

Your needs, as an employer, to plan resourcing such as understanding who might leave or retire from the business do not trump your obligations not to ask questions that might be considered age discriminatory. You might find this unhelpful, but the law is clear on this.

Age discrimination (older workers – part 2)

Brian Fox worked for Jaguar Land Rover for 40 years from the age of 16. He had two heart operations and his lengthy absence from work was then followed by a request to work only day shifts. This request led to his dismissal that in turn led to an award by the Tribunal of £250K – including loss of earnings past and future given his proximity to retirement age.

You can read the full story here, but as we’ve said before, dismissing staff and defending legal claims cannot be just about process and procedure, employee relations must also be considered. Someone aged 59 and with 40 years’ service is inevitably going to feel they have been brutally treated if dismissed after a long period of confidence-sapping sickness absence compared to someone aged perhaps 30 with 2 years’ service, dismissed because they have a bad attitude.

Learning points:

  1. We encourage more managers to take the time to think through the human aspect of what they are about to do and to find ways to minimise the impact. Treat others with the respect and consideration you would like to be treated.
  2. In this situation, compounding the hurt no doubt felt by Brian by withholding compensation (whatever the legal reasons for that) especially given his age, his heart condition and whilst he was not currently earning is just red rag to a bull and surely no one wants headlines like “Jaguar Land Rover worker called in ‘bailiffs’ over £250,000 compensation for unfair dismissal”.

Emotional dismissals and the importance of procedure

Last year we saw a few harsh/brutal dismissals (e.g. sacked by text, sacked in anger, heard it via the grapevine before my email arrived etc.) arising out of an employer not liking the concerns or issues their employee raised, whether in relation to covid protocols, home working, H&S or other issues.

Often the employee just walks away wanting to get on with their life, but of course, some seek reparations. Invariably in these situations, there is a finding of unfair dismissal from the Tribunal.

Learning points:

  1. High emotion (and too much ego) tends to blunt our common sense, resulting in procedure rarely being followed as it needs to be, to ensure the dismissal is safe (or as safe as it can be). So NEVER send out a text or email in anger. Write it, but then sit on it overnight so you have time to reflect.
  2. While you are reflecting to ensure procedure is followed, as per our suggestion above, make sure you consider the employee relations issues too so that you minimise the likelihood of any claims being brought.

80% of tribunal claims are lost because procedure wasn’t followed

Also, 20 years ago we remember advising managers that 80% of unfair dismissal claims that are won at Tribunal are won simply because the company failed to follow the correct procedure, and not because there were no grounds for dismissal. Unfortunately, our advice on this remains pretty similar. Time after time after time when we read through Employment Tribunal outcomes, the employer is losing simply based on procedure. Please do make sure that your managers know how easy it is to mess up process, leaving the business financially exposed.

Our 6 top tips:

  • An investigation can’t be shoddy or shallow. If the procedure requires you to do an investigation, make it as thorough as is sensible and the circumstances allow. A five-minute investigation followed by five minutes of consideration time is not sufficient!
  • A procedure is not there just to make your HR person happy – it’s there because the law requires you to follow a fair procedure. So, follow it. No cutting corners.
  • Educate managers about why procedures are in place and why they need to follow them. It might be going back to basics, but in our experience some managers don’t even know where to find the relevant procedure, let alone understand the importance of following it.
  • Educate your directors about the potential financial consequences of following their emotions rather than their business head when it comes to dismissing staff.
  • Procedure trumps logic/common sense – if you believe that it is a logical response to dismiss on the spot (e.g. when finding someone taking drugs at work) don’t forget … procedure trumps logic. In this example, you cannot dismiss on the spot, you must suspend, investigate and then meet with the individual before any decision to terminate is made. Be self-disciplined enough to put logic aside and follow your procedures!
  • Don’t overcomplicate procedures otherwise you create trip hazards when it comes to expecting managers to follow them. Keep them as simple as possible, following ACAS guidelines. If necessary, go back to the drawing board and redraft. Beware: you may need to consult with staff if removing some policies and replacing them with a variation on a theme.

Emotional Dismissals

To finish this focus on emotional dismissals, let’s remember Mr Porchetti. A sobering lesson for us all!

The employment tribunal accepted he was a serial underperformer despite being on a high salary (£110K) and with a tendency to do disappear working. To move him out of the business he was offered a great settlement agreement (6 months’ pay). Discussions appear to have gone well and the settlement accepted in all but signature, but then Mr Porchetti submitted a £60K expense claim producing stacks of receipts he had kept in a shoebox. He also turned in a company rented car with significant damage and a broken laptop. All this of course, seemingly consistent with his chaotic approach to work.

In response to his having failed to disclose this enormous quantity of unclaimed expenses during settlement negotiations, the settlement offer was withdrawn, and he was instead dismissed on grounds of poor performance (unfortunately the correct procedure was not followed). The Tribunal found he had been unfairly dismissed but awarded him exactly £0! His lack of compensation being down to the fact that he was found to have contributed to his own dismissal.

Learning points:

  1. His employer had a policy of 14 days to submit expenses. It’s good to have a time limit but if you do, make sure you remind people of it and manage in accordance with it. At Jaluch we think 14 days is very tight, but no harm in having a 4 or 8 week limit in place.
  2. During settlement agreement discussions ensure you don’t just focus on the key numbers but ask for full disclosure of anything else that might be relevant during discussions.
  3. Don’t let employees run rings around you and step in to manage formally way before you think about settling someone out of the business. Having the courage to manage these underperformers we have in business might feel scary or stressful but everyone else in the business breathes a sigh of relief when they are managed so… be confident, step in!
  4. His dismissal letter referred both to poor performance and issues of misconduct. Decide what is most important and be clear in how you are going to manage it. Don’t ever seek to throw everything in the ‘pot’ in the hope that something will stick. You, the employer, looking confused and unable to decide if you are dismissing for performance or misconduct doesn’t do you any favours when you are trying to demonstrate to the Judge that you had it all under control and acted professionally.
  5. Even if the compensation was £0 be under no illusions that the legal costs of defence for this were probably upwards of £40K. So many things that money could have been better spent on!

Hopefully we have given you a little food for thought in this HR Blast from Jaluch. If you have questions or would like support (we can offer support on a pay as you go basis) please do get in touch with one of the team at Jaluch.

Various training and HR issues we have supported with this past month:

Lots more we can support with including training both online, face to face and eLearning. Please do check out our website.


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