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 Lisa, who was asked to leave (with a settlement agreement offering him £25,000) after 23 years.
When an employee calls us to say that their employer has asked them to leave like this we direct them to our page on settlement agreements. We explain that there is no charge to them if they want to accept the deal – the employer pays our costs of advising on what it says and means. Like most employment lawyers we include some redrafting and advice on whether it’s a good deal, at no extra charge. But not all employers offer an amount which is a good deal and often the employee can obtain a better deal by calling the employer’s bluff.
Typically the employer plays a game of ‘carrot and stick’, offering a sum of money to leave, alongside a threat to find a reason to dismiss them if they don’t accept – redundancy or poor performance, or one of the other ways an employer can dismiss fairly.
Lisa was in this position. She was an executive on a salary of £50k, and was being threatened with a PIP (a performance improvement plan) and possible dismissal if she didn’t improve. But there was, in reality, nothing wrong with her performance. It was just that a new manager wanted to put ‘his guy’ in Lisa’s place.
Often with a performance dismissal it is hard for the employment lawyers to assess whether the employer is likely to be able to dismiss fairly by blaming the employee for performance problems. This is especially true in executive situations, where judging performance is quite subjective. But Lisa advised that she was willing to call the employer’s bluff and go through the PiP, showing in detail how her performance was what a reasonable employer could expect.
If an employer is not likely to show poor performance then it is not likely to win a tribunal claim if it wants to dismiss. In that case, the employee’s position is quite strong. But in such a case the employee rarely wants to stay employed there. So we told Lisa that we would help to improve the offer by negotiation. We offered to either charge modest fees in three hour tranches or take a percentage of the improvement in the compensation (no-win, no-fee). She chose the first option and as it turned out that was the right choice.
We showed that Lisa was prepared to tough it out and provided the employer with a detailed analysis of why the allegations of poor performance were unfair, together with an assessment of where that left it legally. We had a hard-fought battle with the employer which took several weeks to complete but increased the offer by £15k and our fees were £1,200 in the end.
So with a combination our advice not to accept the first offer, confidence in us from Lisa and a joint willingness to do battle, we got a great deal for her.
Not all settlement agreement cases are like this but in many instance an improved offer can be negotiated. If the employment lawyers offer a no-win, no-fee agreement, it is typically about 35% of the improvement in the offer. So Lisa ended up with an extra £14k. We hear she is very happy in her new job and has invested the extra money in her pension!
By Zahid RezaRead More
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 Ken’s gross misconduct dismissal from a national supermarket after 35 years of service.
Ken was the Store Manager. One aspect of his duties was overseeing the processing of stock, and more particularly the recording of stock that couldn’t be sold at full price (‘disposals’). Ken would review disposals made by his team, and where possible re-code the items to remove them from the disposal category. This was what he had been trained to do.
Ken’s employer accused him of wrongly re-coding stock that could be sold, as stock that couldn’t be sold, losing the store money and giving it inaccurate figures. They claimed he was doing this to improve his KPIs and therefore his bonus. He was suspended, and an investigation was carried out. Ken received a letter inviting him to a disciplinary hearing, only now he was accused of losing, whether directly or indirectly (via his staff) £20,000. Ken was dismissed, but on appeal this was replaced with a final written warning and a demotion. Ken rejected the demotion and resigned with notice.
We found that Ken’s employer failed to get to grips with the issues; they didn’t investigate his claim that he had followed training to the letter and so the employer failed to get the decision right. They ignored the fact that his bonus didn’t depend on these KPIs. And they failed to understand that if he miscategorised stock, it made one statistic go higher but the other one go lower, a neutral net effect.
We helped Ken bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer behaved unfairly both in terms of their disciplinary procedure and the severity of the sanction – a gross misconduct dismissal that would be on his record.
He got a job at another supermarket, where he is happy, but at half his previous salary and his losses would be over £150k over a couple of years.
We had a strong hunch that the employer would not want to put this gross misconduct dismissal case before a judge and advised him to hold out to the bitter end and go to a tribunal hearing if necessary. Just before the final hearing, after some heavy negotiation, Ken received an offer near to the maximum that the law allows.
By Zahid Reza
Image used under CC courtesy of Polycart.Read More
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 Ian’s dismissal after an unfair disciplinary from a well-known company after 36 years of service.
Ian, age 56, was a foreman working on large infrastructure projects. With over 36 years of knowledge within his field, Gurdeep’s dismissal came as a shock.
Ian was issued with a company van to help complete his daily tasks. As the company owned many vehicles, it had its own fuel pump at the depot, where Ian was the only employee trained and authorised to fuel machinery. An electronic fob was issued to Ian which recorded how much fuel he dispensed from the pump.
The company were well aware that the small tanks they issued could only hold a certain amount and this was not sufficient to last for the working day. Therefore, Ian (thinking proactively) would fuel up several jerry cans to top up the tank whilst out on site. This is precisely why the company issued jerry cans in the first place!
Ian’s employer became aware that Ian was drawing more fuel than the van’s tank’s capacity to hold fuel. This led it to believe that Ian was taking the extra fuel for his own personal use and therefore an investigation was. carried out. Evidence included in the investigation was offered by another employee, Steven, who had a personal vendetta against Ian and wanted him sacked. Other colleagues of Ian stated when they need extra fuel, Ian gave them some of his fuel, showing where the extra fuel went too and was in fact not for Ian’s personal use as alleged.
It is important to remember when an employer is carrying out an investigation, it must be conducted fairly and reasonably. Making a decision after an unfair disciplinary investigation can make any subsequent decisions or action unfair, and leave an employer vulnerable to legal action.
In the appeal, Ian’s employer refused to hear new evidence produced by Ian and his representative. He complained the accusations made were instigated by his manager, who for an unknown reason, took a dislike to him.
Unfortunately, Ian was unfairly dismissed from his job.
We helped Ian to bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer simply conducted an unfair disciplinary and as a result got the decision wrong.
Image used under CC courtesy of DennisM2
From time to time we will tell you about a Birmingham employment law case we have recently dealt with. This is the story of Jason, a factory worker, and his settlement agreement that followed age discrimination.
Jason, 64 years old, was a production controller in a clothing factory.
Jason was in charge of cutting textiles which produced garments and managing the cutting room operations. Over the course of one year, his employer removed parts of his role, accusing him of not doing his job properly (which wasn’t the case). Jason was asked on several occasions whether he was planning to retire. He wasn’t. Instead of retiring, he had planned to reduce his hours to three days a week on reaching 65. the company have stated they were enquiring as they would need to have a sufficient amount of time to employee a replacement.
The employer had said that they were unsure whether this was going to be possible due to lack of work for Jason and they had asked whether he would reduce his hours to two days a week instead. It was implied that if he didn’t agree to working two days a week, an “alternative route” would be followed. He thought that this was an implicit threat to manage him out of the business.
The employer demoted him, told a client he was on his way out and this caused him a lot of anxiety.
Jason put in a flexible working request when he reached 65, declining the offer to work only two days a week. Out of the blue the employer held a ‘settlement meeting’ with him, asking him to leave and take a £3,000 pay-off.
He felt that this may be cause to resign and claim constructive dismissal, but our page on settlement agreements to see why this might not have been the case. But we advised him that because it was linked to his age, it might be an act of age discrimination.
On our advice, Jason raised a grievance complaining about how he had been treated, claiming he had been forced out of work due his employer’s assumptions about what should happen to employees over 65. This is age discrimination. There is no such thing as forced retirement any more. The grievance was heard and Jason was told that an investigation would be carried out. In the meantime, the employer denied his flexible working request.
Jason took legal action and we wrote to the business accusing them of discriminating. The grievance outcome denied all his complaints, which is usual.
Unfortunately, Jason fell at home whilst gardening due to lack of concentration as a result of being filled with worry over his work situation and was unable to work out his notice.
We helped Jason to bring a claim of unfair constructive dismissal, age-related harassment and age-related discrimination and victimisation. We took the claim to a hearing and the other side settled on the day of the trial for £25,000 to cover his loss of income, personal injury and injury to feelings for age discrimination. Ironically, the matter was tied up with a settlement agreement.
By Emma Bonehill
Image used under cc courtesy of Senorhorst JahnsenRead More
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 Harry, his heart condition and his disciplinary.
We helped Harry to get his employer to remove a first written warning following a disciplinary meeting.
Harry works for a construction company and has over three years’ service. Harry also has a heart condition which he disclosed to his employer at the start of his employment. He is a forklift driver.
One day, Harry was having chest pains and suffering from a shortness of breath. He told his line manager, who just told him to get back to work. He did this but was suffering pain throughout his shift. At the end of his shift, Harry told his line manager that he felt he needed to go to hospital. At this point, the company started taking him seriously. Two colleagues from health & safety told Harry that he could either go to the hospital himself or someone from the company could take him.
Harry had lost confidence in his employer’s ability to deal with the situation, so said he would go on his own. Upon arriving at the hospital, the doctors were very concerned because they could not feel Harry’s heartbeat. Once Harry had informed them of his heart condition, the hospital did a series of tests the next day and concluded that he was fine but that the symptoms could be life-threatening in the future.
Despite knowing where Harry had been on the day of the incident and the next day, the employer took the absences into account in giving him a warning for taking too much time off sick. After an investigation and disciplinary hearing, Harry was given a first written warning which was to stay on his record for 12 months.
We assisted Harry in his appeal against the disciplinary sanction and helped him to lodge a grievance. This did the trick because the employer then removed the sanction completely, leaving Harry with a clean disciplinary record.
Employers should always be aware that a disciplinary process must be fair and impartial for employees with more than two years’ service. This is because an unreasonable decision can breach the implied term of ‘trust and confidence between an employer and employee’, which can allow eligible employees (with two years’ continuous service) to claim constructive unfair dismissal. Those with less than two years’ service may rely on their disability rights under the Equality Act, including the right to reasonable adjustments to the disciplinary process. An unreasonable decision can support a discrimination claim. Therefore, employers should always deliberate carefully as to what is a reasonable decision based on the information obtained throughout the disciplinary process.
Harry was satisfied with the outcome and because the employer reversed its decision on appeal, he was willing to still work for them. His heart condition is not currently causing him any problems.
By Zahid Reza
Image used under CC courtesy of AJC
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 Grace from Birmingham, her dismissal for gross misconduct and the lessons to be learned from it.
Grace worked for sixteen years as a PA at a well-known company. In January 2014 she was dismissed for gross misconduct after an investigation into the theft of £40,000. She was adamant that she was innocent and backed this by paying privately to challenge the employer’s decision to dismiss her. In terms of evidence the actual perpetrator had access to the petty cash tin and could make withdrawals using her name. All the withdrawals were logged in a petty cash book and nowhere else. We understand that the company has now tightened its petty cash procedures.
The firm found her guilty of 30 thefts adding up to £40,000 and she was made subject to a dismissal for gross misconduct. Two junior colleagues gave statements saying that she had asked for petty cash on numerous occasions between 2013 and 2014. Grace strenuously denied the allegations but in face of two witnesses saying she was responsible for all the withdrawals it was always going to be an uphill struggle to win the case. The company’s only record of the transactions was in a cash book. Unfortunately Grace lost it when she took it home to see who had been forging her signature when withdrawing the cash, having been told that an audit had uncovered the financial irregularities. This led to the investigation into her involvement.
Understandably, Grace felt under immense pressure and became emotional during the investigatory and disciplinary meetings. She did not manage to properly explain her case to the best of her ability and had lost the key piece of evidence. The chances improved when she realised she could show that on some of the days when money had been withdrawn she was on holiday. The company however showed that some of these were half days off.
If Grace had kept better records and had not lost the book she would have stood a better chance of successfully answering to the allegations and ultimately winning her tribunal claim.
Her case highlights the importance of evidence and why employees should take care with petty cash records, especially when working a finance department. If the employer’s record-keeping is poor, employees should keep their own records. Confirming things by email means that there will always be a paper-trail, which may exhonerate you down the track.
By Naomi Vlad
Image used under CC courtesy of SuperRabbit
From time to time we will tell you about a Birmingham employment law case we have recently dealt with. This is the story of Francis, a window cleaner, and the discplinary process that led to his dismissal.
Francis was an employee in a multinational business that provides, among other services, window-cleaning to commercial customers.
Francis was caught on CCTV standing on an office chair to clean a window in a client’s prestige car showroom. This was a clear breach of Health and Safety policy and common sense. In a disciplinary process he said he did it because the firm did not provide him with a safe step-ladder.
In reality, a step-ladder was available, but it had not been inspected in over a year, which according to the firm’s health and safety policy should not have been used as it was not proved safe.
Francis had actually asked his employer for new, safe equipment several times before the incident. He had evidence of this as his colleagues had seen him asking for it in meetings.
So why did Francis take the risk of being caught breaching the health and safety policy? He said he was under pressure, as his employer threatened his employees to reduce their pay if a customer complained about their work.
After a disciplinary process, Francis was dismissed for gross misconduct. An important aspect of employment law is reasonableness. Francis’s dismissal seemed excessive and unfair, especially when Francis had been working for the company for over 13 years and had a clean disciplinary record.
Francis claimed that the company was trying to reduce jobs and saw an opportunity to replace a redundancy process with a disciplinary process. The theory that the firm was in financial difficulties explained things like equipment not being replaced, management not giving holiday pay to staff and the weekend pay being lower than promised.
The company’s position was that Francis had (by his own admission) breached the Health and Safety policy and that this justified his disciplinary process and dismissal. After appealing and going down the tribunal route, the employer agreed to pay Francis £7k in compensation for lost earnings after his dismissal.
What swung it for Francis is that he had witness evidence from a colleague showing that the equipment was faulty and that the firm was putting him under financial pressure, which could partially justify breaching the firm’s policy. This case shows that a claimant in a similar situation needs evidence to support his claim.
By Lily Wilde
Image used under CC courtesy of VictorRead More
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 Eva from Solihull. Settlement agreements are bread and butter to us and we deal with several every month.
Eva had a decent job working in middle management but fell out with her manager after a miscommunication by email that left egos bruised.
She was offered a settlement agreement under which she would leave quiety for her notice pay without having to work her notice, with the threat of “an HR process” if she didn’t accept it.
She looked for employment lawyers in Birmingham and found us.
We advised that, as she had more than two years’ service, she couldn’t be dismissed without a fair reason and there didn’t seem to be one here. She thought that she could find another job within three months but it wasn’t guaranteed. So she was looking for anything more than three months’ notice.
However, her employers weren’t actually threatening to dismiss her if she didn’t accept the deal.
We offered her a deal under which we would negotiate with the employer and seek six months pay instead of three months and charge a percentage (35%) of the extra portion that we managed to negotiate, if any.
The negotiations were protracted. The employer threatened to invite Eva to a disciplinary. We advised her to hold her ground. She had been intemperate in her email but in our view it wasn’t a sackable offence. The employer also alleged that her colleagues were refusing to work with her. Their witnesses didn’t really back that up but they did suggest that Eva had been abusive to them, albeit a long time ago.
An employer is entitled to raise historic disciplinary allegations, if it is only hearing about them for the first time. But the longer that there has been since the events that took place, the less fair it is to punish the employee for them. We advised her to stand firm and ignore the threat.
She attended the disciplinary and once the evidence was out in the open, we put to the employer that they didn’t have enough to dismiss, so she wouldn’t be leaving. Eventually they increased their offer to five months pay but coupled it with a threat to dismiss.
By that stage, we felt that we could advise a deal, because the threat to dismiss made sure there was a legal dispute between the parties. That means that the money on the table could be called compensation (which isn’t taxed) rather than notice pay (which, in certain cases, including Eva’s), is taxed. So, with the additional sum of money that would have gone to the taxman, Eva was able to leave with well over 6 months’ pay, which was enough for her to take the deal.
We finalised the negotiations and tied up the agreement for her, leaving another satisfied customer with a successful Solihull settlement agreement.
Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.
Image courtesy of Michael Coghlan used under CC
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 Dav.
Dav drove HGVs for 15 years with the same company. A few years ago he started suffering health problems and his employer re-assigned him temporarily to a different role.
He was diagnosed with sleep apnoea, a condition that interrupts breathing during sleep. Left untreated, this can cause the patient to fall asleep during the day. Once the diagnosis was made, his doctors notified DVLA, who suspended his driving licence until it could be treated. He was treated with a Continuous Positive Airway Pressure (CPAP) machine, to be used whilst he was sleeping. After his doctors signed off that it was working, he was allowed to resume driving by the DVLA.
A couple of years later, at a routine hospital review, he learned that he had been using the machine slightly wrongly and again the doctors told the DVLA.
However, this time, his employer had had enough. He was sacked on the spot.
Dav searched for employment solicitors in Birmingham. Employment law was on his side. It is unfair dismissal to sack someone with more than two years’ service without following a procedure. Sacking someone on the spot is no procedure at all and in his case that would lead to £5k in compensation.
But he could also expect to receive a large award / settlement if he could show that dismissal was also unfair in practice. This would be the case if the decision to dismiss would have been the same, even after a proper procedure. In that case he could expect to obtain compensation for a reasonable period of lost income.
And because sleep apnoea is a medical condition that qualifies as a disability, the actions of the employer drove a coach and horses through the Equality Act’s employment law protections for the disabled, amounting to discrimination. The dismissal was discrimination for a reason relating to his disability, that reason being the suspension of his licence.
He came to us for employment law advice and we offered to take his case on a no-win, no-fee agreement, which would entitle him to legal advice all the way to trial at no cost if it was unsuccessful.
The employer’s only real argument was that without his licence, if Dav had no income if wasn’t because he was dismissed (the employer’s fault) but because couldn’t get a new job with his medical condition (not the employer’s fault). They would still have to pay compensation but not as much. So Dav worked very hard to chase the hospital and DVLA to get a clean bill of health and his licence back, which took away this argument.
We had to issue a claim to do it but we secured a settlement for just under £20k. The employer learned a valuable lesson that day.
Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.
Image courtesy of Sally Butcher, used under CC
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 Charlie, a hotel worker and his disciplinary for gross misconduct for vaping.
Almost all employers ban smoking in their buildings, though some provide a place outside where smokers can gather. The law prohibits smoking in buildings accessible to the public but vaping is down to the individual employer.
We are finding that employers generally don’t allow vaping, either for image reasons – it looks like smoking from a distance – or because some people may not like the smell.
It is sensible for an employer to have a handbook that sets out the position but this is not strictly necessary as long as staff know that it is considered a disciplinary offence.
Charlie works in a hotel chain and had been given a written warning for vaping at work, though this wasn’t prohibited by the handbook. This week he came to us complaining that he had been invited to a disciplinary misconduct meeting for setting off a smoke alarm in one of the rooms and managers believe that his vaping was to blame.
When the alarm sounded, his manager asked him where his vaping ‘mech’ was and Charlie answered that it was in his locker. His manager didn’t follow that up at the time, for example by checking his pockets or his locker.
So now, it is hard to get to the truth of what set off the alarm, which can be triggered by deodorant and opening a can of carbonated drink.
We are advising Charlie and if his disciplinary goes against him we will help him with a claim for unfair dismissal – he has 15 years’ service with the hotel chain and a lot to lose from this disciplinary process.
He can’t claim that he didn’t know vaping was against the rules – although the handbook is silent on the matter, he knew from his previous disciplinary. But his defence is that he wasn’t vaping, there is no evidence that he was vaping and the employer must not dismiss if no reasonable employer would dismiss where there is no evidence.
Sadly for Charlie, he expects to be dismissed – he thinks his employer is gunning for him. We’ll keep you updated by updating this blog post.
Our clients agree to the use of their stories but names are changed for anonymity
By Jason Harbourne
Images courtesy of Jonn Williams, used under CC
**Update November 2016: The result of the disciplinary was that Charlie was cleared and so not given any warning**Read More