Employment Tribunal

[spooks]

Good morning all, having lurked in the background here for some time, I now find myself in need of some of youradvice.

A former employee has submitted a claim for unfair dismissal, the claim merely states he was given no warnings or letters and was dismissed immediately, does not go into any more detail.

Our version as you would expect is somewhat different!

I had reason to have an informal meeting with him regarding his poor performance the previous week, this meeting became very heated, the employee eventually said F*** this , I quit. He was asked if he was leaving or working notice, he became abusive and was asked to leave the premises.

We wrote to him the following day asking him to confirm his resignation in writing within 7 days - no reply, p45 was prepared

Approx 2 weeks later , through former colleagues the employee had indicated he regretted his actions, I invited him to work a couple of days to see if he had improved/ changed as he assured me he had - he indicated he was not ready to return to work - needed to clear his head.

This pattern continued for a couple of weeks, this was cash work , paid per day

After 3 weeks this employee having been asked to come in for 4 days, turned up for 2 and never came back, cost us a large job and significant revenue.

He telephoned that week to ask for money, a heated discussion followed regarding what he was due, the outcome was that he was asked to collect his tools

A week later he arrives, becomes abusive, threatens violence against myself and my family and throws a metal container across the office at me, he was asked to leave immediately and not to return.

My question is this, how much of this are the tribunal interested in, do we detail only what happened during the initial meeting or do we detail conduct before and after?

I have a feeling this is not going to end well whatever the outcome - the joys of employing people!!

Any advice or guidance greatly appreciated

[Boxby]

Hi

I have been through this twice, and it is abmissmally skewed inside of the favour of the employee.

Firstly, forget the instances that have lead up to this situation and go right back to basics. Does the employee have a proper written contract, up to date, that states all of their terms and conditions of employment. Has this been revised regularly and does it comply with current employment legislation.

Secondly, did you COMPLETELY follow a grivement procedure as set out in legislation, or your company policy?

If the answer to this is no, then you are starting on the backfoot and at a disadvantage.

It will drag on for ages, letters, time, records, paperwork etc.

You have 2 options, fight or settle. If you are going to fight be realistic about the TOTAL costs, i.e. your time, the solicitors fees for preparing the file, the baristers fees for representation (at least £800!), the distraction for your business, time etc of digging out records, providing evidence etc etc etc. Stress & worry about possible downside.

I was advised to get the claim below £1500 and settle it (we actually settled at £600 and £1000)

It hurts, because it seems to be irrelevant about who is actually in the right, and a total disregard for the employers situation and rights. But a very high majority of employment tribunals against small employers get settled in the employees favour simply because the employer is unable to meet the (unrealistic burdonsome) requirements of employment legislation.

Alternatively, if you have a employment insurance, which covers the fees, then go and get bloody good advice and fight the case!! And if you don't have this insurance, and if you can afford it, go and get it.

Don't get emotional about it or take it personally, and look at it from a blunt financial point of view.

Good Luck.

[Antonia @limeone.com]

Many applications do not get to a full tribunal hearing as it also costs the employee unless they are representing themselves. Even on no win no fee cases the insurance policy that backs up these cases continually reviews their merits.

There is not a requirement for an employer to have representation at a tribunal and certainly not from counsel although many do.

The more full your defence the better, this is what we do every day for our business clients so if you want some free help on what to include in your defence just email me for a time for a chat. We have a number of employment law experts here who can get you on the right tracks.

Make sure that, if personal threats were made against you or your family these are reported as soon as possible, if you have not already, to the police.

[JohnG]

You say "This pattern continued for a couple of weeks, this was cash work , paid per day".

Did you put him back on the payroll as such? If not and you just paid him in cash how did you account for tax and NI deductions? Be careful.

[sjbeale]

You should have documentation in place to prove to a tribunal the actions you took to manage the situation. You should document all meetings and confirm in a letter the outcome. You should have an employment contract in place and a few basic employment policies such as grievance and discipline that you need to follow to the letter. The tribunal looks at the written word above the spoken word as proof of actions.

If you do all of this and have acted fairly you have a good chance of winning any tribunal claim.

[FPB-advice]

Not really complicated if it was handled properly, but this has not really been done.
Your problems started with...
I had reason to have an informal meeting with him regarding his poor performance the previous week, this meeting became very heated, the employee eventually said F*** this , I quit. He was asked if he was leaving or working notice, he became abusive and was asked to leave the premises. The meeting should have been dealt with better really, and went downhill from there.
When did you actually dismiss employee and did you write to this effect a few weeks later when he became violent. At that point you should have dismissed and wrote the appropriate letter, sent any monies due and ended it properly.

[spooks]

Thanks for all your replies, I find ths art of business the hardest to deal with without taking it personally, Not sure how it could have been handled differently, the employee became very abusive, said he quit, confirmed verbally he was resigning, refused to work notice and left after being asked to leave due to his language. According to ACAS our only obligation after a resignation in this fashion is to write to the employee confirming the resignation and offering the opportunity of a meeting to discuss the matter , a cooling off period I think they refer to it as.
This we did giving 7 days to respond, no reply was received.
Where we have gone wrong I fear was to allow him to return after the event, this is not raised in his claim at all, so do we mention it or do we reply to th claim which concerns the original meeting only.

What would make it a dismissal and not a resignation?

[Tungstone]

I had reason to have an informal meeting with him regarding his poor performance the previous week, this meeting became very heated, the employee eventually said F*** this , I quit.He said "I quit"
That constitutes a resignation
Do you have proof he said this?
Did you record it, have unbiased witnesses?


He was asked if he was leaving or working notice, he became abusive and was asked to leave the premises.Abusive.....
Did u call the police?


Approx 2 weeks later , through former colleagues the employee had indicated he regretted his actions, I invited him to work a couple of days to see if he had improved/ changed as he assured me he had - he indicated he was not ready to return to work - needed to clear his head.This is where it gets complicated
You invite him back

This pattern continued for a couple of weeks, this was cash work , paid per day
After 3 weeks this employee having been asked to come in for 4 days, turned up for 2 and never came back, cost us a large job and significant revenue.Did you invite him for a disciplinary hearing?
Did you offer him to be represented at this meeting?
Did you issue him with a letter of warning?


He telephoned that week to ask for money, a heated discussion followed regarding what he was due, the outcome was that he was asked to collect his tools You summarily dismissed him

A week later he arrives, becomes abusive, threatens violence against myself and my family and throws a metal container across the office at me, he was asked to leave immediately and not to return.
How can you ask him not to return, ( presumably you mean back to work?)
when he was summarily dismissed?

My question is this, how much of this are the tribunal interested in, do we detail only what happened during the initial meeting or do we detail conduct before and after?
My feeling is:

You did not follow procedures
Unfair Dismissal
Wrongful dismissal

[Boxby]

This is the exact same problem that i had. An employee resigned, was sick, didn't put it in writing, and was paid until the end of the month. At the begining of the next month they then phoned back to say they were better and they wanted to come back to work!

I appreciate what the legal advice is here re the procedures, meetings, documentation etc, but for a business, with one or two owners who are also managing the business, and probably doing most of the work, i still hold that it is IMPOSSIBLE to ensure that you are 100% compliant with HR and Employment legislation unless you pay/outsource this to a specialist. And for many small businesses, if you have less than 5 employees it's too expensive (as such advisors know the higher risks in such companies).

I was advised by Counsel, that if you start a tribunal defense with a failure to comply with contracts, notice periods, grievance procedures etc, then you are starting from a "guilty" position and trying to claw your way back.

Also, if employee is unemployed, they are almost "pushed" into making a claim by the benefits process - i.e. if you've resigned you can't claim benefits, so, if you've been sacked was it your fault, no then get a claim in. The benefit claim form almost replicates certain sections of the first Employment Tribunal Claim form.

And then, if they're on benefits, they can get free advice and representation from CAB or a Legal Advice Office. So it isn't costing them anything, and it's costing you a fortune.

When cases are awarded against the employee costs are very rarely awarded in your favour, only if the court strongly feel that the case was brought maliciously. And very very rarely if you've "breached" their "rights" in some way or other by not complying with greivance procedures, written notice, employment contracts etc etc etc. So you've still got to carry those costs, despite winning.


My advise is still to look at it bluntly and unemotionally, and forgot you're right and they're wrong. Let the employee put his claim in, see what it is, negotiate it to the lowest you possibly can and settle it. And then make sure that the same thing cannot happen again.

My advice is not negative - One of my closest friends is an employment barister who specialises in unfair and constructive dismissal. It's just that for an employer it's virtually a loose/loose situation. It's bad enough losing money over it, but the time, effort and stress that it takes up too is definately not to be underestimated.

Good Luck.

[Tungstone]

My advice is:

Always follow the procedures by the letter, every time
Ill put down the procedures you need to follow tomorrow hopefully, alternatively feel free to PM , me Ill e mail to you

[FPB-advice]

I wouldnt really say that procedure is particularly hard to follow if a general understanding is sought.
Businesses though do have enough on their plate without the complications of all the procedures, in reality though it is relatively cheap to take out adequate protection and get the assisstance needed as and when, from around £200 which would include legal expense cover, seems fairly cheap and affordable in todays times. £4 a week, small amount for peace of mind :)

[spooks]

Thanks again for all of your replies, all have valid points, some I agree with more than others, its interesting how people's opinions vary on these matters.
i'm inclined to agree with boxby on this one, as an employer of 10 people we struggle to cope with all the other legislation we deal with let alone the minefield that is employment law, how would one approach an early settlement in a case such as this, how do you come up with a number?

More interestingly, we had a solicitor review the paperwork for us - he thinks we would win at tribunal!! - he also thinks it would cost more to defend than to settle.

This firm is going to deal with our employment issues from now on - contracts etc, and also the insurance as previously suggested - a welcome idea thanks!

I would think this is the type of issue facing small business owners nationwide, hopefully our particular issue may cause others to consider their paperwork and procedures for the future and prevent something similar for them.

I guess we'll never know who was write or wrong in this case, as boxby said, it ain't worth the grief

Regards

[Boxby]

Spooks

Don't know if this is of interest to you buT RBS Mentor offer professional fee insurance to cover Employment (with 10 employees it may be more affordable for you that it was for us with only 2), also a policy covering H&S, and a seperate one which covers TAX & VAT. We have the tax and VAT one, which at £15pm plus VAT i think is terrific value for money.

Good luck
Sandra

[FPB-advice]

Just a further point on the issue of covering certain issues with regards employment-tax and the like.
£15 a month for tax/vat may seem a good deal at 180 per year but not when you can get the same cover from an accountant at possibly as little as 60 now that is good value, but no protection for employment issues-H&S-data protection-jury service-landlord disputes etc.
Joining an organisation who specialise in those areas afford a much more comprehensive cover at incredibly competetive prices.
180 for tax-vat
200 for policy covering 11 areas, a no brainer imho.