Unfair Dismissal - Less than 2 years service

[MartinRey]

Evening folks,

I was just wondering whether somebody with more experience of such matters than me could give their opinion of this situation - we’re only a small employer and have, fortunately, never had reason to dismiss one of our team previously.

So, employee had worked for us for 20 months. They were dismissed 10 days ago, and paid in full all wages owed, PILON of one week (allowed for in their contract) and also 2 days untaken holiday entitlement calculated up to the date of dismissal. They were given written notice of their dismissal, including the opportunity to appeal the decision and giving 7 days to do so, which they didn’t exercise.

Now advising they intend to make a claim for unfair dismissal on ACAS advice, and have advised they intend to serve a SAR, and (to quote their message) “take us to the cleaners”.

The reason for the the dismissal was conduct - failure to attend work for two scheduled shifts without adequate notice, and also their actions posting negative and derogatory false information about the company on social media whilst they were off work on those days, to the point that the relationship had broken down and it would no longer work for either party for their employment to continue. This reason wasn’t elaborated on in the notice of termination.

Following the initial AWOL we did indicate that we intended to commence disciplinary proceedings, however following the second day of absence and the social media rubbish the decision was taken to terminate immediately and we clarified in writing that no disciplinary process had been concluded and no findings against the employee, we were simply terminating the employment by giving the required PILON.

I did speak to the ACAS helpline myself, but really just looking for a second opinion that there can’t be a claim for unfair dismissal as they had been employed for less than 2 years and there was no discrimination or breach of day one rights?

Many thanks

 

[STDFR33]

If under 2 years she can only claim if the dismissal was because of sex, race etc.

For the claim to be successful, she would need evidence. If she doesn’t have evidence then you’re grand.

 

[MartinRey]

If under 2 years she can only claim if the dismissal was because of sex, race etc.

For the claim to be successful, she would need evidence. If she doesn’t have evidence then you’re grand.

That was my understanding too, thanks!

They’ve definitely got no evidence, as that wasn’t the reason for dismissal at all, so no worries on that score.

All such a sorry mess - being such a small team we’re as much friends as we are colleagues and employer/employee, so absolutely gutted it’s come to this and that they burned their bridges so readily, but it is what it is.

 

[Newchodge]

That was my understanding too, thanks!

They’ve definitely got no evidence, as that wasn’t the reason for dismissal at all, so no worries on that score.

All such a sorry mess - being such a small team we’re as much friends as we are colleagues and employer/employee, so absolutely gutted it’s come to this and that they burned their bridges so readily, but it is what it is.

Does the person dismissed have a protected characteristic? Can you show documentation about the real reason for dismissal. Have you got screenshots of the derogatory comments etc. What do you mean by

This reason wasn’t elaborated on in the notice of termination.

 

[MartinRey]

Thanks Newchodge for replying, I was hoping you would although felt cheeky asking you directly.

Definitely no protected characteristics. Yes I have copies of everything, quite nasty it got too. We could potentially take action ourselves for defamation based on what was posted, although don’t have any desire to drag things out and simply want to move on.

I simply meant that I didn’t give detailed reasons for dismissal in the letter - I kept it short and merely advised that the decision had been taken to terminate the employment, effective immediately, and that in accordance with their contract they’d be paid 7 days PILON, all wages and holidays owed, and had the opportunity to appeal.

 

[Newchodge]

Thanks Newchodge for replying, I was hoping you would although felt cheeky asking you directly.

Definitely no protected characteristics. Yes I have copies of everything, quite nasty it got too. We could potentially take action ourselves for defamation based on what was posted, although don’t have any desire to drag things out and simply want to move on.

I simply meant that I didn’t give detailed reasons for dismissal in the letter - I kept it short and merely advised that the decision had been taken to terminate the employment, effective immediately, and that in accordance with their contract they’d be paid 7 days PILON, all wages and holidays owed, and had the opportunity to appeal.

Thanks. Always feel free to ask by tagging me in your post - I prefer not to advise in private messages as the point of this is for all to be able to learn.

EVERYONE has a protected characteristic, so you need to be careful. The received wisdom is that the average person has 7!

I always recommend giving the reason for the dismissal in the letter - that way you can't be accused of making it up later, however as long as you have the evidence of the misconduct it should not be a problem.

Unless they are attacking individual members of staff I would ignore them. If individuals are being named you need to support those staff members and, if necessary consider a solicitor's letter.

Good luck!

 

[MartinRey]

Thank you. Completely agree - that’s why this is the first thread I’ve had to start (despite lurking for many years!), because almost every situation we’ve encountered I’ve already found detailed threads about on here.

Sorry, naive wording - I meant no protected characteristics which played any part in the dismissal, and certainly none that we have discriminated against in any way so far as I’m aware. If anything I think we’re probably a bit too relaxed and easy going in general, they get away with murder at times, so I don’t think taking such a dim view of the behaviour was expected, however a line was definitely crossed and there would have been no coming back from it in terms of a positive working relationship.

To be honest their social media stuff just made them look pretty vindictive, and hasn’t caused any real damage, so no plans to take anything any further unless they kick up a fuss again. We’re fortunate to to be well regarded in the community, so most saw it for what it was.

And thanks, I doubt anything more will come of it - suspect they’ll get bored long before I do, when they realise there’s no pot of gold at the end of this, but if there are any developments I’ll report back.

 

[obscure]

@Newchodge A related question. If the OP sacks for cause but doesn't follow their own disciplinary procedure would that be grounds for a claim of Wrongful Dismissal?

 

[Newchodge]

@Newchodge A related question. If the OP sacks for cause but doesn't follow their own disciplinary procedure would that be grounds for a claim of Wrongful Dismissal?

If the disiplinary procedure was contractual, yes. A well-written contract and disciplinary procedure would ensure it was non-contractual. Ie a procedure that can (and SHOULD) be followed, not one that MUST be.

 

[MartinRey]

I believe that’s the case with our contract and procedures, but I guess time (and potentially a test before a tribunal, not that I believe for a second they’d stay the course - after a quick buck with minimal effort is my impression!) will prove the point either way.

Playing devils advocate for a moment, a decade or so back I worked for a small employer who didn’t have a written procedure at all. Nor actually a contract, but that’s another matter entirely. What would be the potential outcome in that scenario, is there a default disciplinary process that would take effect? (All moot, as I left due to a failure to pay minimum wage due to requiring us to work additional hours unpaid, just curious as to what would/could have happened...)

 

[Newchodge]

I believe that’s the case with our contract and procedures, but I guess time (and potentially a test before a tribunal, not that I believe for a second they’d stay the course - after a quick buck with minimal effort is my impression!) will prove the point either way.

Playing devils advocate for a moment, a decade or so back I worked for a small employer who didn’t have a written procedure at all. Nor actually a contract, but that’s another matter entirely. What would be the potential outcome in that scenario, is there a default disciplinary process that would take effect? (All moot, as I left due to a failure to pay minimum wage due to requiring us to work additional hours unpaid, just curious as to what would/could have happened...)

The ACAS code is deemed to represent the minimum an employer should follow, but if there is no contract then the employer is under no oblugation to follow a procedure. Any employer who dismisses an employee with 2 years+ servicewithout following some sort of procedure would lose a tribunal.

 

[MartinRey]

Thanks @Newchodge, always good to have an expert opinion, and helps build an understanding. Plus, I’ll admit, I was always curious.

 

[bodgitt&scarperLTD]

.

EVERYONE has a protected characteristic, so you need to be careful. The received wisdom is that the average person has 7!

Good luck!

I'll bite- what protected characteristics does a white, straight male of average height and build have?

 

[MartinRey]

I'll bite- what protected characteristics does a white, straight male of average height and build have?

I was curious myself, so I checked the strict definition of protected characteristics. Age will always be one, as everybody is always “an” age, whatever that may be. Similarly being white, being straight, being male, they’re all characteristics too (you can discriminate against somebody based on their skin colour, whatever colour it may be. Or their gender. Or their sexuality).

 

[Displaycentreuk]

The fact that the employee failed to appeal and then has threatened to “take us to the cleaners” is a pretty strong indication to me that you do not need to worry about anything!

 

[Newchodge]

I'll bite- what protected characteristics does a white, straight male of average height and build have?

From that description, race, sexual orientation, sex. You also have age and religion. Just because your protected characteristic is a majority one does not mean you cannot suffer a detriment because of it. An advert seeking a black lesbian hindu under the age of 25 would discriminate against you on all 5 counts.