Dismissed after customer complaint
This example is a theoretical case with details inspired by the past experience of our senior lawyers here at Monaco Solicitors. The names and exact circumstances are not real.
- Client name: Ms McConnell
- Job title: Operations Manager
- Employer/company size: Retail industry. Circa 250 employees
- Annual basic salary, before tax: £47,000
- Annual expected bonuses & commission: £9,852
- Date the Case Details Form was filled out: 10th September 2016
- Date of first action: 15th December 2016
- Date of case completion: 13th June 2017
- Initial agreed fee: £500 upfront plus 20% inclusive of VAT
- Original settlement offer: There was no initial offer as the employee was originally dismissed for Gross Misconduct.
- Final settlement agreement amount: £18,000
- Final Fee Billed (Total): £3,600.00 (inclusive of VAT)
- Other terms we got included in settlement agreement: The company rescind their finding of Gross Misconduct so that the client could claim their income protection insurance.
Hear from the client and our lawyer
What the client said:
“The Company have claimed gross misconduct and loss of confidence in view of poor performance of my duties. They have summarily dismissed me without notice or pay in lieu of notice.
I do not believe that the company policy or ACAS guidelines have been followed with regard to my disciplinary hearing. I do not believe that the issues raised (irrespective of my guilt) warrant the severity of the punishment. I received no notice of investigation, no performance review or notification of concerns. I have been given no opportunity to rectify any issues or improve performance. I intend to lodge an appeal.
I believe that following the sale of the company and appointment of new senior management including head of my department, my services are not seen as a good fit for the direction the company wishes to take. Over the past 18 months I have been subjected to effective demotion and systematic erosion and undermining of my management status, which has increased since the appointment of a new department manager over my head a year ago. I believe that it was hoped that this would force me to resign of my own accord. As this has not worked, the company have now resorted to engineering a scenario to dismiss me.”
Lawyers initial thoughts:
“Based on the facts presented, there sounds like there has been a failure to follow process and there are certainly a lot of questions about the basis of the justification for dismissal. The bar for an employer establishing misconduct is low. The employer must satisfy a test that first, were there sufficient grounds to find that misconduct occurred following a reasonable investigation. Second, was the dismissal within a reasonable range of responses open to the employer.
By way of example, it is worth looking at the case of Mrs Birchall in the case of British Home Stores (BHS)–v-Burchell  UKEAT 108_78_2007 which, whilst being an old case, remains good law. Mrs Burchell was an employee of British Homes Stores and was accused of stealing. BHS conducted an investigation and concluded that Mrs Burchell had stolen company property. She was dismissed. Following her dismissal the real perpetrator was discovered. Mrs Burchell took her case to the Tribunal claiming unfair dismissal and lost. The Employment Appeal Tribunal overturning the original finding in Mrs Burchell’s favour, found that:
- The employer reasonably believed that there was misconduct
- There were reasonable grounds for that belief; and circumstances
In summary, an employer may not always reach the right decision but a Tribunal will give them a fair amount of latitude if they follow a fair and reasonable process.
Getting back to Ms McConnell, following an initial call it was apparent that some serious allegations had been laid against the client regarding the performance of his duties and that the Company claimed that they had suffered some significant financial losses. However, what was apparent was there was a separate agenda to scapegoat and blame the Employee for wider departmental failures. I advised that this might be a difficult case as the employer was taking a hard line, but we would be confident when taking on the case that we would recover at the very least her notice payment and hopefully, compensation equivalent to a redundancy payment.”
Chronology of case actions
First letter to the Company from Monaco Solicitors on behalf of Employee
Monaco Solicitors were instructed and initially drafted the grounds of appeal against dismissal – this was drafted to refer at the Company’s internal processes. The appeal had to cover a lot of ground both in terms of addressing the seven allegations and findings against our client and also to explain the background to the events and how she had been subjected to a bullying campaign by her line manager which was clearly intended to put enough pressure on that the Employee would resign.View Letter
Private and Confidential
By email only:
Dear Mr D
Appeal against dismissal
Further to my email of [Date] notifying you of AC (“my Client”, “Ms M”) appeal against the decision to dismiss her from employment. We had expected to be furnished with all the requested information prior to the submission of the grounds of appeal but in view of the delay in the provision of this information, please find set out below the grounds of appeal. Once we have sight of the additional information requested, we reserve Ms M’s right to amend these grounds of appeal.
We set out below some useful context for your consideration in the appeals process and evidence which appears to have not been considered in the original disciplinary process.
Ms M was employed from 2006 as a Manager for the Company. At the point of her dismissal, it is noted that Ms M was due to receive her long-service award but the Company failed to give the agreed long-service award. When Ms M was first employed by the Company, her department consisted of Ms M and an administrator. During this time, they used independent subcontracted engineers to carry out the works on site. Prior to her appointment, servicing and repair of the product had been a hit and miss affair which only took place on a requested basis with no focus or Ms M realised the growth this part of the business.
As this part of the business grew so did Ms M’s responsibilities and, over time, developed this side of the business with steady and sustained growth, an expanding portfolio and a core group of quality knowledgeable employees. Ms M’s efforts were rewarded with regular pay increases, bonuses and an upgraded company car. Clearly, Ms M was integral to the success of this arm of the business and it is testament to her endeavours that the Company enjoys the success that continues to this day.
Following the Company’s acquisition, Ms M was aware that there would be a period of flux and that given the business was now part of a larger group of companies there would be a time of readjustment. This was particularly evident following the retirement of Mr F and the appointment of a new managing director.
Ms M was more than prepared to move with the new challenges of the changed business and the changes that would inevitably take place. Following Mr B’s arrival and appointment to the role of Senior Service Manager, Ms M asked Mr F if her title could be changed from Maintenance Manager to Operations Manager to better describe her revised role within the business. At the time, it was made clear to Ms M that her skills were best suited to the day-to-day logistics of the operations. Whilst no formal job description has ever been issued, it was understood that Ms M’s core responsibilities were [ ].
It was widely understood that Mr B, as a more senior Manager, would be taking overall responsibility for the department and concentrated on the commercial aspects of the operation and ensure that the department developed and grew. Clearly, the responsibility for all the commercial aspects – particularly – meeting sales targets, invoicing, etc. – came under the auspices of Mr B. It is apparent that the scope of Ms M’s role was not properly recognised during the disciplinary process and particularly, the areas of Mr B’s overarching responsibilities. On an objective basis, it is quite evident that there was a clear attempt throughout the disciplinary process to back Ms M into a corner and be identified as the fall-guy for any perceived failures within the department. We will discuss these issues below in greater depth.
Since her appointment in July last year, Mr B has waged a consistent and relentless campaign to marginalise Ms M and undermine her authority. This has seriously compromised Ms M’s ability to manage her team and the day to day operation of the service offering effectively.
Mr B has completely failed to engage with Ms M or draw on her 35 plus years of engineering, service management and customer service experience, or her substantial knowledge and experience of Company X’s history, procedures and products. He made no attempt to develop a professional and productive working relationship with Ms M. Quite this opposite, he consistently took every opportunity to undermine Ms M’s authority by second guessing all decisions and approvals. He instructed staff from within and outside of the service department to refer all instructions made by Ms M to him for further approval. This was done covertly and evidently done to undermine, marginalise and exclude Ms M.
At the end of June, Ms M discussed her concerns with Ms E, the Company’s Human Resources Consultant, who discussed the option of raising a formal grievance about Mr B’s treatment. Ms M was reluctant to bring these issues to the fore as she realised it would likely be counter-productive and thought she should follow the Company’s procedure to raise matters informally with Mr B directly which she did. Ultimately, she was keen not to fracture an already difficult relationship. Some weeks after the original conversation, Ms E spoke to Ms M and asked if he had made progress and she told him that immediately following their previous conversation, Mr B had insisted upon to speaking to Ms E in an attempt to find out whether Ms M intended to submit a grievance. In hindsight, it would appear the commencement of disciplinary action was likely a pre-emptive strike from Mr B and one which was probably motivated by self-preservation.
In terms of the grounds of appeal, at its core the appeal centres on the failure to follow a fair process and one which has rendered the disciplinary decision unsustainable and unfair. In view of the fundamental failures to undertake a fair process, there is no means upon which this could be remedied upon appeal. In the circumstances, we invite you to rescind the decision to dismiss Ms M from employment and reinstate him to his previous position. In support of this contention we make the following points:
Failure to appoint an independent investigator to undertake a fair and impartial investigation and disciplinary process.
Whilst we have not seen the Company’s grievance and disciplinary policy we assume that the Company’s general policy would be to act in manner consistent with the ACAS Code of Practice and the principles of natural justice.
As we have mentioned above, Mr B was brought into the business to manage and oversee the Service Department and the allegations levelled against Ms M are matters which came within Mr B’s remit and any departmental failures rest with Mr B and not with Ms M.
Mr B attributed blame to Ms M for matters which came within the ambit of his own responsibilities and for that reason could not be a fair and open-minded decision-maker. It is believed that there has been a deliberate campaign to deflect responsibility from himself and he could therefore not be an independent to the issues that fell to be considered. Furthermore, it is apparent that he went on a fishing expedition to find and obtain biased information which would assist in building a case against Ms M.
It is clear from the evidence provided in support of the disciplinary action taken against Ms M that there had been a series of leading questions asked of members of staff to provide statement which were detrimental to Ms M. Ms M was not offered the opportunity to ask questions of the individuals concerned and examine how these statements had been realised. It is apparent that they were asked, presumably, at Mr B’s behest to provide statements which established alleged wrongdoing. You will note the request below for all data for which Ms M is the subject to be disclosed under the Data Protection Act 1998. We believe that it is pertinent that any appeal officer should examine the correspondence between Mr B and the individuals who provided statements in the course of the disciplinary investigation and we invite you to do so.
For example, the witness statement of Ms D purports to have been written on 12 August 2016 and yet refers to events and emails received days later. Clearly the information was provided at Mr B’s request and is far from an unsolicited complaint from a colleague as advanced in the disciplinary allegations of 22 August 2016.
Substantive evidential failures and consideration of incorrect facts or findings of fact that no reasonable adjudicator could have found.
As part of a decision-making process, an adjudicator should take account of the evidence provided and, in particular, the explanations offered in defence of the allegations. It is clear that there was a wholesale failure to take account of the evidence presented by Ms M in the course of the disciplinary investigation and consequently findings of fact were made that no reasonable adjudicator could have found based upon the facts presented. In respect of this ground of appeal, we break down the various allegations which were considered to be well-founded and make the following comments:
Allegation 1 – the Client Complaint
This complaint was not directed towards or about Ms M or the handling of this account, in fact, Ms M had a good, long-term relationship with the Client who had always been complimentary about Ms Ms advice and support. The material facts are as follows: the Client called in to the service coordinator, Ms X (currently on probation for promotion to contracts manager), in response to a repair estimate submitted by her for repairs to equipment that had been damaged in one of the stores. This call came in after office hours (and after Ms M should have left to go on annual leave). Ms X sent an email to Ms M at 17.45 saying that there was a problem and asked Ms M to discuss it with her. Ms M called her immediately but received no response, so left a voicemail message asking her to call him straight back. In view of the high profile of this account, and her close relationship with the client, Ms M telephoned him to find out what the problem was. The Client advised that he was concerned that he had had a number of similar instances this year and was worried that there may be an issue with the product. Mr C spent over half an hour talking with him and going over some of the issues. It was apparent that the majority were to do with external factors which had caused damage, not the product itself. Further, it also became clear that information supplied by the Company to the Client’s facilities team had not been shared with him. They also discussed some options to provide him with additional protection of the equipment. They concluded the telephone call with an agreement for them both, and the Client’s facilities team manager, to meet up once Ms M had returned from holiday to further discuss and options to improve his confidence levels going forward. The client was more than happy with this and thankful that Ms M had taken the trouble to talk with him and apologised for disturbing Ms M out of hours. The meeting subsequently took place and was very positive, resulting in a request to extend the contract to 2019 and to provide budget costs to carry out a nationwide refurbishment and upgrade programme to all the stores in the contract. It is likely that over the course of the next three years, there this contract will bring in over £500k.
Evidently, this is not the conduct of an unhappy customer. It is appreciated that the basis of the Mr B’s argument appears to be that this matter was not escalated to him. Ms M saw no reason to do so as she was the main point of contact and having a long relationship with the customer and an in-depth knowledge of the equipment installed, evidently Ms M was the most appropriate person to follow it through. Further, Ms M was aware that Ms X had made Mr B aware of the issue so it would have been a duplicated effort had Ms M also made contact with Mr B.
Allegation 2 – Failure to submit documents
This relates to an order intake versus jobs completed analysis for 2015 which Mr B had been tasked to complete. It is appreciated that Mr B found this task difficult as he had limited knowledge of the system and history and he had made little progress. In mid-2016, Ms M offered to assist him with this by having the data reviewed and compared. Ms M tasked one of his team to start this process, with Ms M’s assistance. After two weeks, Ms M had a meeting with Mr B and Mr Q and reviewed the data collated so far. At that meeting, they discussed the fact that the task was about 50% complete, but was proving very time consuming and difficult, particularly with the limited staff resources and heavy workload. It was agreed they would reconvene in about two weeks to review further progress. This meeting was never called. This coincided with two other incidents which have a bearing to the completion of the task. Ms R, the administrative assistant, who was carrying out this task was suddenly removed from Ms M’s team, without warning or consultation and transferred to another department. This obviously put the already stretched team under additional pressure. Ms M discussed the impact that this decision would have on the comparison work with Mr B. He told Ms M not to worry about it for the time being and that it could be picked it up at a later date, if necessary. Ms M asked for clarity on a couple of other occasions and the first response was “oh don’t worry about that, he’ll be gone soon any way.” This was a reference to Mr Q’s announcement that he would be moving within the Company and a new Managing Director would be taking his place. On another occasion, Mr B told Ms M again, not to worry about it as he would deal with it. Ms M has recently become aware that Mr B was investigating this issue and was taking considerable time away from the office, apparently working on it from home. Ms M offered to assist, but Mr B said he would not require his assistance.
In the dismissal letter there is a reference to the flowchart. This has been taken entirely out of context. At the meeting on 26 June 2016, Mr Q asked about the order process and whether there was a flow chart. Ms M confirmed that there was an overall process and flow chart documented in the quality manual which had been recently updated. Ms M also went through the process and suggested some improvements and illustrated this on the flip board in his office. Ms M does not recall being asked to produce a flowchart document. Had he been asked to do so, he would have pointed out that he does not have any experience or training to carry out this task and that as part of the Company’s ISO9001 accreditation, any new process document would need to be produced, approved and incorporated into the company quality manual by the quality manager.
Allegation 3 – Lack of Control over Invoicing
As we have stated in correspondence, we await sight of the specific detail as to date no evidence has been produced to substantiate the figures or responsibility.
The allegation against Ms M is based upon the premise that Ms M had overall responsibility to ensure that orders are invoiced and up to date. Prior to Mr B’s appointment as ‘Senior Service Manager’, her predecessor business development director, carried out this function. It was his responsibility to monitor all sales, quotations, follow-ups and invoicing via the spreadsheets and reports maintained by the team. Any anomalies or omissions would be addressed and corrected through discussion and regular communication. When Mr B took over, Ms M went through all the spreadsheets and the electronic service management system) to ensure he was au fait with the system and able to find the information. Ms M also provided him access to the management reporting function of Case Management system and provided training on the system. Mr B clearly had all the means to access the relevant information from the commencement of his employment but appears not to have used it.
During the disciplinary hearing, Mr B structured his questioning in such a way to corner Ms M and suggested that she had sole responsibility for controlling the invoicing and further suggested that this was her primary function. Under pressure, Ms M inadvertently acknowledged this as she was put on the spot. However, having had the opportunity to reflect upon this, she completely refutes this assertion.
Over the course of recent months, the issue of outstanding invoices had been discussed and it was apparent that work needed to be done rectify some of the historical problems. Ms M understood that this was the entire team’s responsibility. In informal meetings during July-August between Ms M and Mr B, it was agreed some changes in roles and priorities for individuals would be made and at the point of the disciplinary action being taken against Ms M this was in the process of being implemented. Ms M had agreed to undertake certain process changes to ensure that the ‘holes’ had been plugged. At no point was there any suggestion that Ms M was at fault personally, or that the performance of her duties was in question.
In the weeks before the disciplinary hearing, and the period between the first and second hearing, Ms M had asked Mt B for the information on any un-invoiced jobs that he had identified so far, but he was told that Mr B wanted to finish the exercise and then go through it to clear up any backlog in one go. During the second hearing, Mr B insisted that he had given Ms M this information via email and checked his sent mail during the meeting which proved that he had not. He then retracted this assertion. He also said that he was concerned that if he submitted a late invoice, without talking to the client first, it could be rejected and end up on the bad debtors list. He did not want this and instructed Ms M not to issue any invoices for old jobs that were identified.
It was well-known and discussed frequently with Mr B, and the previous management, that the department is seriously under staffed and that it was necessary to employ additional staff in order to effectively cope with the volume of work and administration generated by this. Furthermore, Ms M had consistently warned that mistakes and problems would occur if this was not addressed. In November 2015, this was recognised by Mr B who sought approval to recruit an additional admin assistant. However, the recruitment process was poorly managed by Mr B and the role has still yet to be successfully filled. The administrative burden was increased when Mr B made the decision to move the service coordinator into a new contract management role, which meant that she could not effectively undertake her existing duties.
Allegation 5: Failure to respond to a direct request for handover information
There is a considerable evidential dispute which is not made clear from the dismissal letter regarding this purported failure to handover information prior to Ms M’s annual leave. Ms Ms recollection of the events is as follows:
On Thursday 8 August, Ms M attended a meeting with Company Y in Manchester along with Mr B (at his request). Ms M left home at 4.30am to ensure that she arrived in good time for the meeting at 10.00am. The meeting finished at around 11.30am and Ms M left to travel home, arriving at 18.45.
Before Ms M and Mr B left they chatted in the car park. Ms M said that he would see Mr B in the office the following day and Mr B replied “oh no I won’t be in tomorrow I’m knackered, it’s been a busy week, I’ll catch up with you next week.” Ms M thought this strange as she had already been up since before 4.00am and was faced with a long drive home. It transpired that Mr B had stayed in a local hotel the night before and it had not crossed Ms M’s mind not to attend the office for work the next morning. However, it was not unusual for Mr B to have a reason not to be in the office on a Friday. Ms M reminded Mr B that she would be on holiday the following week and it would have been good for them to touch base before she went away. He replied “oh if there’s anything you want me to do just send me a note by email”. As it transpired that there were not any outstanding items which Ms M required Mr B to deal with in her absence so there was no need to forward any instructions to him.
In the course of the disciplinary meeting, Mr B produced two handover information emails from two members of Ms M’s team to each other as evidence of procedure. These were examples of a handover system that Ms M had introduced for his team to have visibility on day to day operational tasks. As Ms M generally dealt with larger projects, Ms M would try to ensure that they did not take place when she was out of the office so as to avoid additional pressure on the team. Further, the team were aware that Ms M was contactable whilst away and would continue to monitor her emails and would respond to clients or request support from the office if required. It is notable that in all the time that Mr B has been employed, save for the occasion set out below, he did not give or request any form of handover between Ms M and him prior to holidays. In reality, Mr B showed very little interest in any of Ms M’s projects. Prior to Mr B’s holiday in the summer, Mr B sent an email to Ms M consisting mainly of a list of things that he had not done and was either asking Ms M to do them or had passed them over to another member of the team. This was in response to a meeting that Ms M had requested with him expressing his concern with the lack of communication from him and the secrecy with which he conducts his day to day business on behalf of the company. Ms M frequently was required to deal with unresolved matters whilst Mr B was on annual leave.
Allegation 6 – Formal letter from member of staff outlining no support
The basis of the allegation is unfounded, the ‘letter of complaint’ refers to the incident detailed in allegation 4 for which Ms M was exonerated and the item dismissed. This individual was a new team member whom Ms M was training up. She used opportunities to involve Mr A in addressing unusual and more complex technical issues as part of that training which was done with support from Ms M and other members of the team. By involving the trainee and encouraging him to find the answers and relay these to the client and follow through the process he is both learning and hopefully experiencing a sense of achievement and contribution to the team as a result. This is a training technique that Ms M has used to great success previously. Clearly it is a cause for concern that Mr A felt pressurised even though he handled the tasks that he was given him well. Had Ms been given the opportunity, this was something that could have been addressed and a solution found to support him further. It is notable that there are no specific further examples given in his letter. This is not an allegation which should be the basis of disciplinary action being taken.
It is also strongly suspected that Mr A may have been encouraged or influenced to put his concerns down in writing rather than discuss it with Ms M informally as per the Company’s grievance procedure. Although, Ms M is without conclusive proof (please see comments above and Subject Access Request below), this is a tactic that Mr B has used on previous occasions in order to give him an excuse to take disciplinary action against other staff members.
Mr B would have been aware that Ms M had concerns, also shared with the Service Coordinator, over Ms A’s ability to cope under pressure and his lack of detailed concentration and questioned whether he was right for this demanding role.
Allegation 7: Formal Letter of complaint from Accounts:
This is a case of misunderstanding and Chinese whispers. Also the statements in the letter are inaccurate. Ms M did not inform Mr P that he had issued documents to, or was waiting for them to be completed by the accounts team. The Health and Safety consultant completed the health and safety elements of the form (including the insurance details) for Ms M on 6 August but was unable to do the accounts element. As Ms M was out of the office for two days, he obtained the additional information on Friday 5 August and completed the forms. Unfortunately, Ms M ran out of time on that Friday due to volume of work and was unable to issue the documentation until Monday 8 August. The forms were sent via email directly to Ms P and acknowledged by her with thanks. Later that day, at around 13.20, she requested further information regarding insurance which was not included in the Company’s standard information letter and provided an additional form for completion by the Company’s broker. As Ms M was out of the office – working from home – she forwarded this to the Finance Manager, and asked if she could assist by requesting the broker to complete the form and return to Ms P and copy her. It is understood that this was actually done by Mr N.
The misunderstanding perhaps came about as Ms M had been trying to get hold of the client’s project manager to confirm details of the job and if they would be ready for the provisional date on the 15 August and left a number of messages. In one of these messages, Ms M told him that he had received the questionnaire and that the Health & Safety information had been completed with just the finance element to be done. When she finally got hold of him on Monday 8 August, he discussed the job and his requirements with him and it was clear that the site would not be ready for the Company’s attendance on 15 August. Mr S requested that they delay the job until the following week on 22 August. Ms M told him that he had sent the completed questionnaire and supporting documents to Mr P that morning. Ms M then advised Mr A of this so that he did not need to worry, as he had been contacted by another person from the site. The postponement of the job was a client request and not as a result of any delay or wrongdoing on Ms M, or the Company’s part.
The job was subsequently completed on schedule and to the complete satisfaction of the client. The job and paperwork trail was subsequently used as an example of our procedures during an external quality audit and passed satisfactorily. Again, this seems to highlight Mr B’s fishing expedition to find individual to provide witness statement finding fault as above.
In the circumstances, there has been no lawful basis to dismiss Ms M from employment and the allegations are without foundation and the decision to dismiss Ms M in these circumstances was well outside the range of responses open to an employer in particular taking account of Ms M’s lengthy and unblemished service.
We look forward to hearing from you in due course.
for and on behalf of Monaco Solicitors
Without Prejudice letter from Monaco Solicitors to the Company
Following receipt of the appeal, we were in communication with the general manager of the Company and sent him a without prejudice letter going into some detail about the dismissal circumstances and the likely findings if matters were considered by a Tribunal. We hoped that there would be engagement from the general manager and there would be pragmatic approach adopted that would ensure that a swift settlement could be reached. The general manager equivocated and then said he wished to let the internal process be exhausted and was not willing to entertain settlement.View Letter
Strictly Private and Confidential
13 March 2017
Without prejudice and subject to contract
Dear Mr W,
You will have seen the comprehensive letter of appeal that has been submitted on Ms McConnell’s behalf. We do not wish to fetter your decision-making ability in considering this appeal but are conscious of the fact that Ms McConnell is currently without any income and her dismissal has taken a considerable toll upon her. She has, therefore, asked me to explore the possibility of settlement before she takes the step to prepare Tribunal proceedings for unfair and wrongful dismissal.
Ms McConnell was a long-serving and loyal member of staff who was both conscientious and diligent in her work. She has been the victim of a concerted and cynical campaign by Mr S to remove him from the business. Her employment should not have been terminated in the way that it was. The decision to dismiss her for gross misconduct is without foundation and we are confident that a Tribunal would find that there was no evidence of misconduct and, even if there were (which is vehemently denied), it is apparent that the decision to dismiss Ms McConnell from employment fell outside the range of responses open to an employer. A Tribunal, on balance, will find Ms McConnell’s claims well-founded and award compensation.
If, which is not accepted, there was anything in the allegations that have been levelled against Ms McConnell then the appropriate way of dealing with such matters would have been under a capability procedure and not as disciplinary action. In such a circumstance, the steps that should have been to commence a performance improvement plan, or any other appropriate measure, under the Company’s capability procedure. Clearly, we do not know what would have happened if the Company had followed proper process.
One would have hoped that the Company would have supported Ms McConnell to identify any areas of weakness and worked with her to continue in her role unimpeded. Had there been sufficient concerns about her performance, then the Company should have commenced a formal process. This would have resulted in a series of warnings, and following on from this, had there been consistent poor performance, this would have been the juncture to consider dismissal. We estimate that this would have been between six to nine months hence.
If this matter were to proceed to trial, we would be confident that Ms McConnell would succeed in both wrongful and unfair dismissal claims and she would be entitled to the statutory maximum award of compensation. In light of the above, and in an attempt to reach a speedy and amicable resolution, we are instructed to make the following offer:
Rescission of the reason for dismissal being gross misconduct;
£11,750 – three months’ pay in lieu of notice;
£23,500 – six months’ pay as compensation for loss of earnings;
A sum of £7,185.00, equivalent to a basic award of compensation;
Release from all post-termination restrictions save for confidentiality;
All accrued holiday pay including the holiday pay that would have accrued during his notice period;
A payment in respect of loss of pension for a period of 12 months following dismissal, estimated at £1,500.00;
Honouring the gift of a long-service award which was outstanding at the time of dismissal;
Payment of £1,437.00 in respect of loss of statutory rights; and
An agreed reference from Mr W.
In return for the above, Ms McConnell will be prepared to sign a settlement agreement and compromise her right to bring any proceedings against the Company relating to his employment the circumstances surrounding his termination. She will sign a confidentiality and non-disparagement clause and would expect the Company to do the same. Our fee for advising on the terms of a settlement agreement is £500 plus VAT.
I look forward to hearing from you or your appointed representative substantively.
for and on behalf of Monaco Solicitors
Our next steps
Monaco Solicitors worked with Ms McConnell to prepare for her appeal hearing, and considered the various documents that the Company belatedly sent over by way of disclosure. We also made a subject access request for all documents where the employee had been the subject, as she is entitled to see these under specific sections of the Data Protection Act 1998.View Subject Access Request
BY EMAIL ONLY
Dear [ ]
[ ] – Subject Access Request
Please make all documents and correspondence within the Company’s control where our Client is the data subject available in accordance with the Data Protection Act 1998.
This includes all correspondence, notes (typed and handwritten), memorandum, data sheets, emails, letters, text messages, instant messaging including Whatsapp or similar and other records. We expect that you undertake a search of the following individual’s email and telephone accounts:
The search should include private accounts to the extent that they were used for work or business purposes. The search should be comprehensive and include search terms include for my Client’s full name, her initials, a short name or any name or variation that might be used by any of the above people to identify her.
In the event that you do not disclose any of the documents mentioned above, we would be grateful if you could confirm that a search has been conducted and no results have been found. We may in due course, request sight of the search terms that were used and the results of the searches conducted.
It may be helpful for you to know that a request for information under the Data Protection Act 1998 should be responded to within 40 days. The Information Commissioner’s guidance suggests that any request should be dealt with promptly and the 40 days period is the very maximum amount of time to furnish the data subject with the relevant data
If you need advice on dealing with this request, the Information Commissioner’s Office can assist you and can be contacted on 0303 123 1113 or at www.ico.gov.uk
Please inform us by return if you require my Client to pay a fee for £10.00 to cover your administrative expenses.
Internal appeal made by the Employee with Assistance from Monaco Solicitors
On appeal, the Company upheld the original dismissal. I had anticipated that the employer might attempt to remedy their earlier failures by concluding that whilst there were grounds for dismissal with the misconduct being well founded, there were not grounds to dismiss without notice and accordingly pay the employee in lieu of their notice. If they would have done so, this would have put the employee in a difficult situation and her unfair dismissal claim would not have been so strong, as case law has established that an employer can remedy earlier failures on appeal.
Attempts by Monaco Solicitors to contact the Company
I made various other attempts to speak to the General Manager but suggestion to discuss settlement was rebuffed. I would not be passed over to the General manager when I called the company, and my messages were left unanswered. When I emailed the relevant representatives at the company, my attempts to discuss the appeal (and so avoid lodging a tribunal claim) were dismissed.
Tribunal application by the Employee with the assistance of Monaco Solicitors
The Employee was left with no choice but to issue Tribunal proceedings and instructed us to prepare the papers on her behalf.View Tribunal Application
IN THE EMPLOYMENT TRIBUNAL
IN THE MATTER BETWEEN
DETAILS OF CLAIM
1. The Respondent is a manufacturer of [ ] based in [ ] and provides maintenance and servicing to residential and commercial premises, warehouses and retail outlets throughout the UK.
2. The Claimant was employed by the Respondent from March 2006 until her dismissal from employment on September 2016. During this period, the Claimant held various roles within the business and most recently was employed as Manager. The Claimant had always performed well, whilst she did not have regular performance reviews she was informally praised and received regular pay rises, bonuses and upgrades to her company vehicle.
3. The Claimant was first employed by the Respondent as a Service Manager and at that time ran the service department with the assistance of an administrator. Over time, the Claimant developed the service side of the business with steady and sustained growth and increased the turnover from £180k per annum to over £1 million over the course of eight years. The Service department was heralded as the most profitable division of the Company, the Claimant’s endeavours were recognised and she was part of the senior management team.
4. In the course of 2014, the Respondent was sold to another company and during this period the former owner and Managing Director retired from the business and a new managing director was appointed in December 2016.
5. In July 2015, Mr F recruited Mr B and he was appointed to the role Senior Service Manager. At this time, the Claimant held the position of Manager. As a consequence of Mr B’s appointment, the Claimant’s duties were changed and, whilst no formal job description was provided, the Claimant’s core responsibilities were to ensure that jobs being requested were fulfilled, resources (plant and materials) were equipped and qualified engineers were available to carry out the work. The Claimant was also responsible for the project management of larger jobs as well as overseeing the supporting colleagues running projects. She supervised day to day operations on site, resource planning, training and recruitment of engineers.
6. Mr B has overall responsibility for the department, its commercial aspects of the operation and was mandated to develop and grow the business. This including matters of financial control including meeting sales targets and invoicing.
7. Following Mr B’s appointment in July 2015, the Claimant was subjected to a constant and relentless campaign where Mr B would marginalise the Claimant and undermine her authority. This seriously compromised the Claimant’s ability to manage her team and the day to day operation of the service department. For example, staff both within and outside of the department were told to refer all instructions made by the Claimant to Mr B for further approval. This caused the Claimant considerable concern and anxiety. Departmental meetings and structural changes were made whilst the Claimant was on leave and without his knowledge. When challenged, Mr B’s response was “well I didn’t need to tell you as you had no say in it”.
8. In June 2016, the Claimant discussed his concerns with the Company’s Human Resources Consultant, who discussed the option of raising a formal grievance about Mr B. The Claimant was realistic that this would likely fracture the relationship further. The Claimant raised matters informally with Mr B in line with the Company’s grievance procedures. Mr B acknowledged his failings and for a short time following the discussion made some show of discussing department decisions with the Claimant. The Claimant did not consider that Mr B genuinely wished to involve him in future decision making but did so to placate her.
9. Some weeks after the original conversation with HR, they spoke again and HR asked if matters had improved. The Claimant expressed his concerns as outlined in paragraph 8 to her. She informed the Claimant that immediately following their previous conversation, Mr B had approached her to ask about what the Claimant had discussed and whether she intended to submit a grievance against him.
10. On 19 August 2016, the Claimant received a letter inviting her to a disciplinary hearing on 22 August 2016 regarding seven allegations. They related to a purported complaint from a customer of a key account (“Allegation 1”), failure to produce document within an agreed timeframe (“Allegation 2”), no control over the invoicing procedure (“Allegation 3”), concern over gaps in response to customer (“Allegation 4”) which was later dropped, failure to hand over information to Y (“Allegation 5”), formal letter from a team member alleging no support (“Allegation 6”) and allegation of providing false statements to a prospective client (“Allegation 7”)
11. The Claimant attended the meeting on 22 August 2016. Mr B was present and another took notes. The Claimant was provided with limited documentation in support of some of the allegations made but robustly defended her position and gave clear context to the allegations. Following his submissions, Mr B adjourned the meeting to undertake further investigations and wrote to the Claimant on 23 August 2016 confirming that a Sales Director, would investigate this additional information.
12. The Claimant attended the adjourned meeting on 5 September 2016 and was informed that her employment would be terminated and she would be placed on gardening leave until sending out the correspondence confirming her dismissal. The Respondent later produced minutes of the meeting which did not record this conversation accurately. Following the meeting, Mr B wrote to the Claimant informing her that there had “been a breach of trust and confidence and serious negligence on your part which causes a loss to the Company.” Mr B gave no consideration of the evidence considered, failed to explain the conduct that he considered to be a breach of trust and confidence, failed to provide any or adequate reasons why he had not given consideration to the evidence and submissions made by the Claimant in the course of the disciplinary process.
13. He went on to state:
Therefore, this constitutes Gross misconduct within the Company’s disciplinary procedure. I have advised you that the disciplinary penalty for this is dismissal without notice and therefore, your employment with Company X is terminated with immediate effect from the date of my decision.
14. In making the decision to dismiss, Mr B failed to take account of the options available to him in consideration of an appropriate disciplinary sanction. The Claimant had a long and unblemished service history with the Respondent and in all the circumstances, the decision to dismiss came outside the range of reasonable responses open to the Respondent. The Respondent failed to take account of the material circumstances in the case to take account of the other factors at play.
15. On 3 October 2016 the Claimant submitted a lengthy letter of appeal, providing a detailed rebuttal of each and every allegation and providing the context to some of the purported complaints that had been received from the client, Company X, and the members of staff and made it clear that Allegation 3 related to problems encountered in the department as a whole and this was not the sole or main responsibility of the Claimant. In particular, she stated:
Prior to Mr B’s appointment as ‘Senior Service Manager’, his predecessor, business development director, carried out this function. It was his responsibility to monitor all sales, quotations, follow-ups and invoicing via the spreadsheets and reports maintained by the team. Any anomalies or omissions would be addressed and corrected through discussion and regular communication. When Mr B took over, Cl went through all the spreadsheets and SimPRO (the electronic service management system) to ensure he was au fait with the system and able to find the information.
16. The Claimant recognised that there were problems with the invoicing system. There were various systemic problems. For example, an Order Bank or Purchase Orders were often set up prematurely prior to works being undertaken which often meant that an invoice appeared outstanding before work had been undertaken or indeed completed. One of the invoices of concern that formed the basis of the allegations against the Claimant related to work that Mr B had been responsible for and it was alleged that the Claimant was accountable for the financial loss. Further, the Claimant gave evidence about the issue relating to outstanding invoices.
Over the course of recent months, the issue of outstanding invoices had been discussed and it was apparent that work needed to be done rectify some of the historical problems. Ms M understood that this was the entire team’s responsibility. In informal meetings during July-August between Ms M and Mr B, it was agreed some changes in roles and priorities for individuals would be made and at the point of the disciplinary action being taken against Ms M this was in the process of being implemented. Ms M had agreed to undertake certain process changes to ensure that the ‘holes’ had been plugged. At no point was there any suggestion that Ms M was at fault personally, or that the performance of his duties was in question.
17. The Claimant made it clear that he had been held accountable for failures within the department that ought to have been identified as departmental shortcomings. Indeed, at the time of the disciplinary action, historical invoicing anomalies were being addressed by Mr B, the Claimant and other senior leaders
18. The Claimant’s appeal was considered by the Respondent’s managing director. On 24 October 2016, the Claimant met with him to consider these points and following a delay of over two weeks he provided a short letter confirming that he upheld the dismissal. The letter demonstrated a wholesale failure to consider the points that the Claimant had raised at both the disciplinary hearings and at the appeal. There was no reasoned consideration of the evidence available and he mirrored the partisan and flawed approach to the alleged misconduct that had been taken by Mr B in the disciplinary investigation and hearing.
19. The Claimant was dismissed summarily in circumstances which could not reasonably be considered to have been gross misconduct. The Claimant is therefore entitled to receive a payment for the Respondent’s failure to give adequate notice of termination of her employment.
20. The Respondent did not behave reasonably in making the decision to dismiss the Claimant and in the circumstances was unfair in the following respects:
a. The Respondent failed to follow a fair process in the investigation of disciplinary action.
b. The Respondent failed to appoint an independent decision-maker to consider the disciplinary allegations.
c. The Respondent reached conclusions of culpability that no reasonable adjudicator would have taken in the same circumstances.
d. The Respondent went on a fishing expedition to identify any of the Claimant’s purported misdemeanours
e. The Respondent treated the Claimant in an inconsistent matter.
21. It is averred that if, which is not accepted, there were identifiable concerns with the Claimant’s work then this was not a matter of conduct but performance and the Claimant should have been given warnings, a personal improvement plan, a reasonable opportunity to improve/training and/or additional support.
22. As set out in paragraph 14 above, the decision to dismiss the Claimant was outside of the range of responses open to the Respondent and the decision to dismiss the Claimant summarily was unreasonable in all the circumstances.
23. The Claimant seeks a declaration that her claims are well founded and compensation as such a level as the Tribunal sees fit.
I also prepared a detailed and reasonable assessment of her financial losses. The Employee remained out of work despite her best attempts to find employment. Her search was hindered by her sudden dismissal after ten years of service and no reference.View Assessment of Losses
IN THE WATFORD EMPLOYMENT TRIBUNAL
IN THE MATTER BETWEEN
PRELIMINARY SCHEDULE OF LOSS
|Date of Birth|
|Date of Commencement of Employment||
|Date of Termination of Employment||
|Monthly gross salary||
|Weekly gross salary||
The Claimant was dismissed summarily; she was entitled to 10 weeks’ notice on termination of employment.
|£826.80 x 10 weeks||
£122.40 x 10 weeks (car allowance) £1,224.00
The Claimant is 52 years old and had over ten years of reckonable service. She has an annual salary of £47,000 and benefits including a Company car allowance of £6,364.80 pa.
|The Claimant is entitled to a basic award of||
Since her dismissal, the Claimant has been unable to find alternative work.
This is a period of three months; she is entitled to past loss of earning as follows
|£3,916.67 x 3 months||
£581.00 x 3 months (car allowance) £1,591.20
Future Loss of Earnings
The Claimant has applied for many roles but despite relevant and appropriate skills for the roles has not been shortlisted for interview. The Claimant considers that as a consequence of the circumstances of her dismissal from employment she is significantly disadvantaged and it will take a significant time before he will be able to find a commensurate role. Even if the Claimant is able to find a role in the short to medium term, it is unlikely that it will be at the same salary and there is likely to be a significant shortfall in salary. It is estimated that she will be employed at a starting salary of circa £28,000, a shortfall in her annual salary of £15,000.
The Claimant expects that she will be unemployed until May 2017 and thereafter find employment at a salary of £28,000.
Her losses are as follows:
December 2016 to 31 May 2017, a period of 6 months
|£4447.07 x 6 months||
1 June to 31 November, a period of 6 months
|£3,916.67 x 6 months||
|Loss £2,333.33 x 6 months||
The Claimants claims any future loss for such a period as the Tribunal sees fit.
Loss of statutory rights
|£479 x 2 x 1.5 =||
Response from the Company to the Employee’s Tribunal application
Once the case is issued, the Respondent has 28 days to file a response (ET3). This is often a good opportunity to settle, but in this case the Respondent instructed solicitors and submitted their ET3 at the 11th hour.
The Response did not provide a particularly robust defence and it failed to answer many of the issues that were raised in the ET1. They exposed a weak defence and offered us greater confidence that a Tribunal would accept our arguments about a flawed process and the decision to dismiss for gross misconduct was difficult to justify.
Negotiating settlement before the case reached Tribunal
The Tribunal gives the parties a timetable for directions to manage the case before it gets to hearing. We were in the process of preparing our list of documents, when the Respondent finally got in touch through ACAS to say that they had an offer to settle. They put forward an offer of £3,500 which was derisory. We counter-proposed £24,000 which was the Employee’s financial losses to date and her basic award of compensation.
Part of our terms were that the Company would rescind their finding of gross misconduct as the Employee had income protection insurance that provided cover if an employee was involuntarily dismissed, usually in the case of a redundancy but also in the case of an unfair dismissal. Following a lengthy negotiations, we were able to reach terms and the gross misconduct was rescinded as part of the settlement terms.
COT3 Settlement Agreement Received
We received a COT3 which is a type of settlement agreement negotiated through an ACAS conciliator which is legally binding. Once this is agreed, the claimant won’t be able to make a future tribunal claim in those matters. If a tribunal claim has already been lodged, it will be closed.View COT3 Settlement Agreement
CASE NUMBER: XXXXX
IN THE WATFORD EMPLOYMENT TRIBUNAL
B E T W E E N
Without admission of liability the Respondent will, within 14 days of receipt by the Respondent’s representative of both this Agreement signed by the Claimant and the Copy Letter, pay to the Claimant the sum of £18,000 (eighteen thousand pounds) (the “Termination Payment”).
The parties believe that the sum listed at clause one above can be paid without deduction of income tax or employee national insurance contributions. Any tax liability on the Termination Payment shall be the Claimant’s alone.
The Claimant will accept the Termination Payment in full and final settlement of all (if any) claims she has or may have in the future against the Respondent or against any officer or employee of the Respondent arising directly or indirectly out of or in connection with her employment with the Respondent or the termination of her employment whether within the jurisdiction of an Employment Tribunal or any other form of Court or Tribunal and without prejudice to the foregoing all claims whether at common law, under statute, pursuant to European Community Legislation or otherwise, including but not limited to her claims for wrongful dismissal and unfair dismissal against the Respondent under case number XXXXX (the “Claims”) and any claims for breach of contract, redundancy, any form of discrimination or under Part II Employment Rights Act 1996 save for any claim for personal injury not arising from the facts currently before the Tribunal or any claim the Claimant may have in respect of accrued rights under any pension scheme of the Respondent of which she may be a member.
The Respondent shall upon request provide the Claimant with a reference in the agreed form set out in Schedule 2. The Respondent shall answer any oral enquiries in a manner consistent with the agreed reference.
The Respondent shall upon request provide the Claimant’s insurers for her income protection policy with the agreed statement set out in Schedule 3.
In consideration of the Respondent’s undertaking in this clause 6, the Claimant agrees and undertakes that the fact and the terms of this settlement shall be strictly confidential and undertakes that she has not and will not discuss or disclose the fact or the terms of this settlement with or to any third party (including the Watford Employment Tribunal) otherwise than as required by law or to her professional adviser. The Respondent agrees to use reasonable endeavours to ensure that its current officers and employees directly involved in the termination of the Claimant’s employment and/or the preparation of this Agreement, keep the fact of and the terms of this Agreement strictly confidential and agree not to disclose, communicate or otherwise make public its terms to anyone (except to its professional advisers and the relevant tax authorities and otherwise as may be required to be disclosed by law or the requirements of any regulatory authority or by the Respondent’s insurers).
The Parties agree not to directly or indirectly publish or otherwise make derogatory or disparaging comments about the other.
The Claimant agrees that, she will immediately within 7 days of signing this Agreement, sign a copy of the letter set out at Schedule 1 of this Agreement to withdraw the Claims and via hher solicitors, Monaco Solicitors, send such signed letter by email to the appropriate Employment Tribunal copied in to the Respondent’s representative, (the “Copy Letter”).
The parties confirm that they understand the Claims will be dismissed by the Tribunal on receipt of the copy letter and the parties believe that it is in the interests of justice to do so.
The Claimant acknowledges that completion of this agreement is evidence that she has abandoned irrevocably the claims referred to in clause 3 above. The Claimant has not issued proceedings before the Employment Tribunal, High Court or County Court in respect of any claim in connection with her employment or its termination other than the claim XXXXX. The Claimant undertakes that neither she or anyone acting on her behalf will issue or continue any proceedings in respect of any claim referred to in clause 3 and if she does so, without prejudice to any other remedy which may be available, and notwithstanding this agreement an award is made, the payment in clause 1 will be set off against the award and be considered in whole or in partial satisfaction, as the case may be, of any such award.
Signed for and on behalf of the Claimant
Signed for and on behalf of the Respondent
Watford Employment Tribunal
51 Clarendon Rd,
Ms M v Company X – Claim Number: XXXXX
I am writing to withdraw claim number XXXXX.
I confirm on behalf of both parties to the claim that we understand my claim will be dismissed by an Employment Judge and both the parties believe that issuing such a dismissal judgment is in the interests of justice.
Schedule 2 – Agreed Form of Reference
[ON EMPLOYER’S HEADED NOTEPAPER]
PRIVATE & CONFIDENTIAL
[NAME/ADDRESS OF PROSPECTIVE EMPLOYER]
Thank you for your recent enquiry regarding the above individual.
We confirm that Ms M was employed by Company X from 2 March 2006 until 4 September 2016, most recently as a Operations Manager.
It is our policy only to provide references containing information as to employees’ roles and dates of employment. However, this should not be seen as implying any comment about the candidate or his suitability for employment as [POSITION] at [PROSPECTIVE EMPLOYER].
This information is given in strict confidence, and should not be divulged to any third party. It is also given in good faith, but neither the writer nor Company X accepts any responsibility or liability for any loss or damage caused to the addressee or any third party as a result of any reliance being placed on it.
Managing Director of Company X
Schedule 3 – Agreed statement to claimant’s insurers
[ON EMPLOYER’S HEADED NOTEPAPER]
Ms M was employed by Company X (“the Company”) until her dismissal on 4 September 2016. Following a disciplinary process, it was found that there was gross misconduct. Ms M challenged the decision to dismiss her and the finding of gross misconduct, at both the dismissal and appeal stage. The circumstances of the dismissal were the subject matter of employment tribunal proceedings and the Parties have agreed confidential terms to settle.
In reaching terms, the Company agreed to pay Ms M compensation and rescind the finding of gross misconduct. It was mutually agreed that Ms M would withdraw her claim for unfair and wrongful dismissal.
We were able to secure a financial settlement of £18,000 as well as additional terms that were important to the Employee. This was a very different outcome to the situation that the employee was in when they came to us for help with their case.
“As well as the satisfactory financial settlement, the employee had income protection insurance that covered him if there was a no fault, involuntarily, dismissed. It was important that the finding of Gross Misconduct was rescinded by the employer so that Ms McConnell was able to claim on this income protection insurance – hugely decreasing financial pressures while looking for new employment.”
“I am very appreciative of all your advice and assistance in bringing this case to completion. Nicola presented each stage of the process to me in a very straightforward way.”