From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Albert, a mechanic and his disciplinary.
Albert had had a stand-up shouting match with his manager within earshot of customers waiting for their MOTs. It turned out that a month ago, he had forgotten to tighten the nuts on a customer’s car before it left the workshop, though fortunately no accident had taken place as the garage had rung the customer on his mobile and told him to stop driving immediately. They hadn’t told Albert about this or disciplined him at the time.
The manager was adamant that Albert had to go. They came to us for help on 14 October. We asked how much service Albert had. The garage wasn’t sure but gave a list of dates from their records, which included 19 October two years ago (when the employment contract was signed by the employee), 22 October (when he started work), 21 October (date he was set up on the payroll), 20 October (date written in the contract). We were instructed that the date in the contract was probably wrong. It was a mess.
The exact date mattered because an employee gains rights to sue for unfair dismissal after two years. Or at least that’s what people – even employment solicitors – often think, but in reality it’s two years less the statutory notice period of one week, which means 103 weeks. The date mattered. If Albert had less than 103 weeks’ service we could safely dismiss; if 103 weeks and one day, we might be in trouble.
We thought we would probably win a case for unfair dismissal, though we couldn’t be certain whether a single incident of gross misconduct – shouting in front of customers in an industrial environment – would fairly be seen to be a sacking offence. And even if they eventually won the case it would be a costly victory in legal fees.
The company had shot itself in the foot by ignoring the far more serious health and safety related misconduct. It would be unfair to rake that up after the event.
One thing was clear: we didn’t want to start a fair disciplinary investigation and a dismissal process, because that would definitely take Albert past his two-year point.
Happily, it turned out that the date he actually started work was 103 weeks to the day…tomorrow. He was one day shy of reaching the critical date.
We did our calculations several times. On paper, with a calendar, with a calculator. We worked out that the garage had to end the suspension and dismiss that same day if they wanted to guarantee that Albert would have no comeback.
But we said it was crucial that they make contact with Albert that day. A dismissal doesn’t take effect until the employee knows about it. If Albert didn’t know he was sacked until after midnight, he would accrue his employment rights. We considered sending a text, dropping a letter round in person and various other means of communicating the dismissal in a way that Albert couldn’t dispute.
In the end we invited Albert in that evening and he turned up to a meeting, at which he was sacked on the spot. If only Albert had lain low for a few hours, he would have had some kind of case. Now, if he brings an employment tribunal claim, it can be struck out quickly and cheaply.
The company now keeps better employment records.
*Our clients agree to the use of their stories but all names have been changed for anonymity
Images courtesy of Dave Parker, used under CC