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 Baljinder, a bus driver, and his disciplinary.
Baljinder has over 15 years of unblemished service.
Whilst working he was abused and physically attacked by a passenger, who reached through the hole in the perspex divide and pushed her ticket roughly into his left hand. This left him shocked and he described the assault happening so quickly that he couldn’t explain how his right hand got hurt.
This assault was witnessed by another passenger and she gave him her contact details.
On the advice of his manager he sought medical treatment and whilst recovering from the ordeal, he called in sick. On returning to work our client was called to an investigatory meeting and they watched the CCTV footage together. His manager then made the claim that Baljinder was not attacked in the way he said he was and that he had made a fraudulent claim for sick pay. The CCTV evidence didn’t really show what had taken place.
The investigator at no stage contacted the witness and the matter was escalated to gross misconduct disciplinary, as a result of which he was ultimately dismissed. Although Baljinder told his employer about the independent witness, she was never contacted.
Baljinder unsuccessfully appealed and looked for employment law solicitors. We immediately wrote to the employer letting them know there would be a Birmingham employment law tribunal claim and requiring them to secure the CCTV evidence.
Baljinder ought to win his claim. It may be that the witness didn’t see how his right hand was injured, but the point is that there was no real evidence that he had lied about how his injury had been caused. It is a serious claim to accuse someone of lying for money and serious claims require serious evidence.
What matters in an unfair dismissal case like this is whether the employer reasonably believed that the employee was lying. The actual truth of how he got hurt is not important to the question of whether he wins his case. But it is important to the question of how much compensation he is awarded. If the passenger shows he lied, then he won’t receive much compensation. If she backs him up, then he may be awarded up to a year’s salary. If she didn’t see what was going on, then it is an open field – the judge will have to decide on the evidence what happened and we believe that an employment tribunal would side with someone with over 15 years’ service and no history of lying.
The employer in this case messed up. Managers who conduct disciplinaries need to follow the ACAS code of practice on Disciplinary and Grievance. We will now have to take this matter to the Employment Tribunal as the Employer will clearly not do the right thing and admit that they have not followed the correct procedure and due care and have dismissed this employee unfairly.
*Our clients agree to the use of their stories but all names have been changed for anonymity
Images courtesy of Elliot Brown, used under CCRead 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 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 CCRead More
Birmingham employment lawyers Hatton James legal have issued a record number of tribunal claims in September 2016.
We issued five claims in September 2016, an average of more than one per week.
Managing partner Jaspal Singh said “it’s been a really busy period for us, when the sector as a whole is struggling, because of various government initiatives to reduce the number of claims going through the employment tribunal“.
Hatton James is among the foremost among Solihull and even among Birmingham employment lawyers. Jaspal said “most of our clients come through referrals or having searched online and seen that we are well-reviewed on the internet“.
The claims issued this month include:
- A new trainee dental nurse who resigned because of her manager’s nastiness after she pointed out problems with infection control
- An HGV driver sacked after 12 years when his licence was suspended for two weeks on medical grounds
- Two jewellers, one who was dismissed because she needed time off to recover from an old shoulder injury …
- and the other, who resigned because of rudeness when a new manager took over
- A factory manager whose employer wanted him to slow down more than he did, as he reached retirement and ranted at him in frustration
These are a typical mix of the claims that Birmingham employment lawyers see; unfair dismissal, age and disability discrimination and whistleblowing. A couple are what we consider to be open-and-shut cases; others are more risky, perhaps because the depend on what the witnesses or the paperwork will say. One of these tribunal claims is funded by a no-win, no-fee agreement, one is paid for privately and in the other cases the client has legal expenses insurance. In each case we feel that the employee really needs to issue a claim in order to protect their legal rights and obtain a settlement or compensation.
These claims come on top of our bread-and-butter work of guiding employees and employers through grievances and disciplinaries and advising on the terms and effect of settlement agreements.
In a future blog post, we’ll take one of these cases as a worked example and explain what happens from when the client walks in through the door.
By Jason HarbourneRead More
We have just settled a whistleblowing case for a hard-working care manager who complained about her working hours and inadequate training at her workplace.
The employer denied that she had made any complaints (so it fell to a question of her word against theirs) and denied that they had dismissed her because of them, claiming that it dismissed her because of poor performance and redundancy (despite there not being much evidence of this).
She couldn’t bring an unfair dismissal case, because she didn’t have the two years’ service you need to do this.
The case settled on the day before the hearing for about 75% of what she was seeking. We advised that though she had a strong case, no case is 100% certain and we negotiated the employer up to £9,000 from a first offer of only £3,000 at the start of the case.
She would have received more compensation, but she had managed to minimise her losses by replacing her income well. Had she not done this, she might have been criticised by a tribunal.
This was a case that we handled on a no-win, no-fee basis so the risk was on us, since she didn’t have the money to fund the case herself.Read More