Dismissal during sickness absence was unfair

An Employment Tribunal had to consider whether proceeding with a disciplinary meeting when an employee was off sick was reasonable. In the case of Oise v Spring & Co Solicitors Ltd, an assistant solicitor was instructed by his supervisor, the organisation’s director, to obtain updates from a client about an ongoing case which was being investigated by an insurer. 

The client complained that he was being chased and was unhappy about it, which led to the employee sending a threatening email about ending the retainer that was in place. The email was sent without any discussion with, or approval from, the employee’s supervisor. The employee was also trained on how to handle such situations and should have known that this wasn’t the appropriate way to deal with the issue.  

The employee was told to write to the client, retract the threat and apologise, in an attempt to protect the relationship with them. But, he refused to do so and maintained that he hadn’t done anything wrong. As a result, the employer commenced a disciplinary process, alleging he had committed an act of gross misconduct and that he had undermined the trust and confidence between employee and employer. 

The employee was signed off sick for two weeks by his GP, so was unable to attend a disciplinary hearing. However, the employer did not delay the hearing in recognition of his absence as they didn’t believe that the employee’s sickness was genuine; instead, they proceeded to hold the meeting without him present and ultimately decided to dismiss him. 

The ET concluded that the dismissal in this situation was procedurally unfair, as the employer had ‘unreasonably’ pushed ahead with a disciplinary meeting despite the employee submitting a fit note to prove he wasn’t able to work, so upheld his unfair dismissal claim. The employer has been instructed to pay £1,177 in compensation. It must be noted that the award pay-out was reduced by 50% due to the employee’s conduct or ‘contributory fault.’ 

The tribunal also highlighted that, had a fair process been followed and the disciplinary hearing postponed until he was fit for work (or until reasonable adjustments could be made, e.g. asking for written submissions or arranging a welfare meeting), there would have been fair grounds to dismiss him over his threat to the client about ending the retainer. It further stated that the organisation was acting reasonably when it instructed the employee to apologise to the client, as it was important for them to protect the ongoing relationship with them. 

The case highlights the importance of following fair processes before dismissing an employee as, even where there are reasonable grounds to dismiss, if the process isn’t done correctly, it can still lead to successful claims. In light of a recent report from the Ministry of Justice which found that the average pay-out for unfair dismissal claims is £13,541, organisations simply can’t afford to get this wrong, especially in the midst of the ongoing cost-of-living crisis.  

As such, it’s beneficial to review all existing policies and procedures, and ensure managers are fully trained in implementing them, so businesses can be confident that they are treating all issues fairly and consistently. Doing so will minimise the risk of claims being raised. 

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