Barber has TOUPEE his ex-employee for SHEAR naivety

Imagine the following scenario: A small barber shop has an employee who is overheard bad-mouthing her boss to a customer. She has also refused to cut a particular type of hair and has told a maintenance man that her boss has “done a botched job”.

Let’s also take into consideration that this employee has allegedly had more time off sick in four years, than all of the employer’s other staff combined. These sick days include a “pattern” of her calling in sick on a Monday.

Her boss warns her not to “let him down on Monday” as she is finishing her final shift before the weekend – a weekend which includes the employee hosting a Halloween party.

The following Monday, she texts her boss, “Hey Chris, I know you’re going to be mad at me but I can’t make it to work, sorry! I’ve woke up this morning and was sick straight away… my stomach is killing me and I’m all shaky. I’m so sorry!”

Chris, the employer texts the employee, telling her that he was “not having this”. “After four years of phoning in sick on Mondays because you’d had a good weekend… Don’t come in. You’re gone.”

What do you think? Is that a fair dismissal?

You might think that the Chris was correct to dismiss her…

But what I haven’t told you is that, during her employment, although Chris had spoken to her about her behaviour in the kitchen, there were no formal records of his discussions.

And what if I also told you that, after her “dismissal”, when she made it clear that she had “no written warnings or verbal warnings”, he texted her back, stating, “You’ve had all your warnings… crack on with all that legal sh1t.”

And what if, after the employee asked about an appeal on two occasions, he did not respond.

Does that change your mind?

This was the situation in the recent case of Ms C Thorley v Mr Christian Donnelly t/a Acute Barbers

https://bitly.ws/AHPE

In this case, the Employment Judge noted that the employer had not submitted a response within the deadline and, when the Judge gave the employer an extension, he did not bother to respond.

It was not in dispute between the parties that there had been a dismissal. The Employment Judge found that the primary reason for her dismissal was her attendance record.

In this case, the Judge found that the reason for the ex-employee’s dismissal was for “some other substantial reason”. The Judge determined that this was not a “capability” dismissal.

So, what’s the difference between a “capability” dismissal and a “some other substantial reason” dismissal?

There is regrettably no hard and fast rule. However if an employee’s medical condition is the direct cause of his or her continuing absence and the reason is that he or she is incapable of performing the role, then the proper categorisation for dismissal is “capability” If, on the other hand, the employee is dismissed because of a history of absences, the most recent of which is not directly related to his or her medical condition, then the categorisation should properly be “some other substantial reason”.

So, the Judge found that the reason for this employee’s dismissal was “some other substantial reason”. So far, so good…

However, the dismissal in this case would only be fair, if it satisfied the reasonableness test. Whilst the Judge was satisfied that a poor attendance record could amount to a potentially fair reason for dismissal, in the circumstances outlined above, the decision was unfair.

In this case, the Judge took issue with the fact that employee had not received any formal warnings as a result of her attendance. Furthermore, she was never given any indications of the employer’s expectations with attendance. Lastly the employee was not given the opportunity to explain herself before being dismissed – and was not offered the right of appeal. Ultimately the employee succeeded with her claim and the tribunal awarded compensation of over ￡3k.

So, what are the case HIGHLIGHTS? Basically, as an employer, you should not take a SHORT CUT to a dismissal, otherwise you may have TOUPEE your ex-employee compensation. This employer could have SHAVED himself by offering a right of appeal but, through SHEAR naivety, he didn’t do that.

Be proactive, take legal advice.

Otherwise you might end up wanting to DYE in an employment tribunal...