Recent cases in which we have successfully represented individuals include the following:
Unfair dismissal and “whistleblowing”
Acting for an employee who was also a director and shareholder of a business in which his two fellow directors and shareholders, a father and son, seized control and forced him out on the basis of an alleged redundancy after gradually removing most of his duties and responsibilities. We successfully brought claims of unfair dismissal and unlawful detriments following protected disclosures (whistleblowing) and the matter proceeded to a full tribunal hearing.
The tribunal found in favour of our client and that he had been subjected to various detriments after making protected disclosures. As the employer was unable to demonstrate that the treatment the employee had been subjected to was in no sense whatsoever because of the protected disclosures, his complaints of unlawful detriment were upheld. Aggressive and insulting correspondence from the employer’s solicitors was held to amount to a detriment as was the employer’s failure to pay the employee his notice and redundancy payments in a timely manner and behaving in an aggressive way towards the employee at a grievance meeting.
The tribunal held that the real reason for dismissal was not redundancy and that the employee’s dismissal was substantively unfair.
Whilst the client also has a shareholder dispute, the tribunal finding was in relation to his rights as an employee only. However, the Tribunal made it clear that the fact that he was a statutory director and a 40% shareholder in the business were matters that they had taken into account when considering the reasonableness and propriety of the employer’s treatment of him as an employee. The Tribunal found that the way the employee had been treated by the respondents in the period prior to his dismissal had been quite astonishing and this was one of the factors that led them to accept that redundancy was not the genuine reason for dismissal.
The client was awarded the maximum compensatory award by the Tribunal at a Remedy Hearing and was also awarded compensation for injury to feelings for the detrimental treatment.
Successfully representing a client against a well known insurance and financial services group in a claim for unfair constructive dismissal.
Our client was one of the company’s top sales consultants with a substantial remuneration package. The client’s bonus structure depended to a large extent upon a system of points which was an internal control measure to identify potential risks to customers. Our client was required to attend a disciplinary hearing with her employer but no disciplinary action was required or taken. However, prior to the disciplinary hearing points under the internal control system were added to her score increasing her risk factor to the highest level. The employer would not remove the points and, as a consequence, the client’s quarterly bonuses were significantly affected and so was her pension and an annual travel award. The client tried, unsuccessfully, to resolve the matter internally with her employer but had no success and therefore resigned on the basis of constructive dismissal.
The Tribunal held that the employer’s refusal to provide an explanation for the recording of the points and/or the repeated refusal to remove them, notwithstanding assurances by the employer that the matter would be resolved, was a breach of the implied term of trust and confidence. It was held that the employer had a duty to clearly explain how the points were allocated and which scale was used and that it was a breach of trust and confidence not to do so. Furthermore, once allocated there had been a complete failure on the part of the employer to explain how long the points were likely to last and how they could be removed.
The Tribunal upheld our client’s claim following a hearing and found that the employer had breached the implied term of trust and confidence by its actions, that the employee had resigned in response to the breach and had acted promptly in doing so. A significant financial settlement was negotiated for our client following the outcome of the Tribunal hearing.
Unlawful Race Discrimination
Representing a client whose employment had transferred automatically under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) to another company. The new company raised issues over an alleged gap in the employee’s employment history. The employee provided evidence to account for the gap. The company from which he had transferred had also carried out employment checks on him which were satisfactory. The new employer nevertheless instructed the employee not to attend work and subsequently issued his P45.
Claims of unfair dismissal and unlawful race discrimination were brought on the basis that the employee was of Jamaican origin and had been treated less favourably than a comparator. A financial settlement was secured for the client before the matter reached a full Employment Tribunal Hearing.
Unlawful disability discrimination
Our client suffered from multiple sclerosis and was registered as disabled. She had been offered a job subject to satisfactory references and a health questionnaire. When she completed the health questionnaire the client stated that she considered herself disabled and that her disability was multiple sclerosis. One question asked about her absences over the last two years and she confirmed that she had had no absences. She advised her new employer by email that she had occasionally be permitted to work from home when her condition was symptomatic.
The employer requested references from her previous employer and also details of her absence record. The client invited the new employer to request any further clarification or details of her sickness record and disability that it may require.
However, the job offer was withdrawn and the client was accused of having been dishonest when completing the health questionnaire by not including periods when she had been allowed to work from home as “absences” from work on the form.
A tribunal claim was submitted for unlawful discrimination under the Equality Act and a significant financial settlement was secured for our client at an early stage of the proceedings.
We successfully challenged the dismissal of a community psychiatric nurse employed by West London NHS Mental Health Trust. The case largely concerned whether the Trust had failed to take into account adequately or at all mitigating features so that a result other than dismissal might have followed.
The employee was subject to a disciplinary investigation for misconduct relating to a series of failures including overdue patient risk assessments and care plans. The employee suffered from a number of health problems including diabetes. The investigation and disciplinary process took over a year to complete. In the interim the employee was redeployed to work as a mental health nurse in Day Services, caring for the elderly, a role with no front line responsibility and which was subject to greater supervision.
At the end of the disciplinary process, the employee was dismissed with immediate effect on the basis that, “it was impossible that there could be any further trust between the Trust and the employee in caring for vulnerable patients in any setting”.
During the hearing of the employee’s claim for unfair dismissal, the Trust confirmed that in reaching its decision to dismiss no account whatsoever had been taken of the fact that the employee had been performing the role of mental health nurse looking after the elderly in Day Services for a period of approximately 13 months. No consideration at all had been given to allowing the employee to remain in the Day Services role. The employee had been performing the role in Day Services well and there had been no issues with her performance.
The Tribunal held that the appeal panel had been misled by the dismissing officer and that they should have been told that the dismissal panel did not consider or investigate the quality of the employee’s work for the 13 months between the commencement of the investigation and the decision to dismiss. They found that had the matter been properly considered the employee would have had a chance of being demoted to a permanent mental health nurse status. These failings rendered the dismissal unfair.
A financial settlement was secured following the hearing.