Problem

We were asked to support a pan-European manufacturing company to defend an employment tribunal claim for unfair dismissal and whistleblowing brought by a former employee.

The former employee claimed that his dismissal was as a result of him making a complaint about health and safety on the production line. The employer said that the Employee had not performed well enough in his role to pass his probationary period.

Solution

We took over complete management of the case and helped our client to gather the evidence they needed to show the real reason for dismissal. We also interviewed witnesses and drafted witness statements, liaised with ACAS over a possible settlement and prepared the hearing bundles for trial. The former employee represented himself and had unrealistic settlement expectations, which meant the case progressed to a final tribunal hearing.

We secured a unanimous victory with the Employment Judge agreeing that the former employee had not raised any health and safety complaints, and that the real reason for his dismissal was due to poor performance resulting in a failed probationary period.

Takeaways

Although our client avoided any findings against them and were not criticised by the tribunal, some of the key points arising from this case were:

1. Short service employees may try to be more creative with the claims they pursue if they can no longer claim ‘ordinary’ unfair dismissal.
2. The value of still running a fair dismissal process with short service employees is that it reduces the chances of a discrimination or whistleblowing claim and makes those types of claim less likely to succeed.
3. Having good evidence of decisions made and the reasons for those decisions is essential if you need to justify your actions to an employment tribunal.
4. Make sure poor performance is addressed properly – informally at first and then escalated to a formal process if required.
5. Keep a clear record of the steps you take to deal with performance issues, set realistic targets for the employee to achieve and actively manage the situation.
6. No matter how sensible your approach is to settlement, you may come up against someone with unreasonable expectations – so be prepared to fight the claim.
7. Taking a robust approach to defending a claim and having someone on your side who understands the tribunal process will save time, expense and reduce the chances of a finding against you.

We’re here to help

If you’re facing an employment tribunal, have a chat with Peter Beisty (free of charge), to find out how we can help you.