Opportunistic dismissals may be unfair

We are often asked to advise on how employers might best “manage out” employees.  It might be that the employee is not quite performing to the level required, or their approach doesn’t fit with the company’s ethos.  These situations can always give rise to a variety of claims from unfair dismissal to discrimination.  Often the question will be asked, “can we make them redundant?”  If you are content to take a bit of a risk then there are ways around this, but you may come unstuck if you construct a situation and then try and justify it in a Tribunal.  A recent case highlighted the issue.

In brief, Ms Alexis was Headteacher of a school in Haringey.  Sharon Shoesmith, Director of Children’s Services (remember her - sacked for her part in the Baby P case?) was concerned that Ms Alexis was not competent and pressurised the school governors to get her to resign.  She did not resign, and steps were put in place to remove her.  However the parents staged a protest in support of Ms Alexis and there was a disruption at the school.  Ms Alexis was dismissed for not taking steps to stop the disruption.

Ms Alexis claimed unfair dismissal and the Tribunal agreed that her dismissal was a pretext when the real reason was the concerns about her performance.  Much of this case is very fact-specific, but it is useful to serve as a warning to employers who might face a similar situation and who want to defend their position at a Tribunal:

• If you have already on record concerns about an employee’s capability then you will need to consider whether it would be better to follow through a process on those grounds.  
• Remember that all documents, including emails, will possibly go before the Tribunal.  
• This case does not prevent you from implementing a genuine redundancy.  But the burden of proof will be on you to show that it is genuine and that the employee has been treated fairly.

Created 20 February 2012.