Guernsey: Unfair Dismissal - When The Employee Wins The Battle, But The Employer Wins The War

Last Updated: 3 March 2015
Article by Hana Plsek

We have emphasised in various articles the importance of having a fair reason and proper procedure in place when dismissing an employee. This continues to be the case, however, sometimes things go wrong (despite best intentions), and the following case is for all employers who do go slightly awry but ultimately require an employee to leave. This case was recently decided in the Guernsey Employment Tribunal.

Miss X was a night-care assistant at a local care home. She commenced employment in 2013 with 3 months' probationary period.

On 5 July 2013, a written complaint was made regarding Miss X. It detailed various failings which prompted the care home Manager to discuss it further with the complainant. Having established there was an issue, he arranged a meeting with Miss X.

A meeting took place between the Manager and Miss X on 12 July 2013 to discuss her progress. At the meeting, Miss X admitted that she was still learning the role and that working relationships with some of the staff members had become strained.

Additional complaints were made by other staff members about Miss X during November 2013, ranging from taking excessive breaks to ignoring cries for help from residents. As a result, a further meeting took place with the Manager and Miss X. A detailed note identifying improvements required was made at the meeting.

Further issues arose in April 2014, culminating in a letter being sent to Miss X to attend another meeting. Miss X did not deny the allegations put to her and, when pushed, declined to comment. Due to the seriousness of the allegations, the unsafe practice and failure to meet performance standards, the Manager issued Miss X with a final written warning.

Miss X was subsequently invited to attend a meeting on 8 May and bring a companion. She attended the meeting on 8 May alone. She was again invited to comment on allegations made against her. She, again, declined to comment and stated that she understood the reasons for the meeting. The Manager made it clear to Miss X that should her performance not improve, she would be dismissed. The meeting was documented and signed by all parties, however, it was then that the employer unfortunately failed to follow the correct procedure. In his letter to Miss X he stated that the purpose of the meeting was "to discuss the disciplinary action of a final written warning that you were made aware of at our last arranged meeting".

This clearly prejudiced the outcome of the meeting. In this particular case, Miss X went on to make further errors and was subsequently dismissed. She made her claim on the basis of the pre-judgement of the final written warning.

It was at this point that the Tribunal looked through the failure in procedure to the true nature of dismissal. The Tribunal was left in no doubt that, when set against the test laid down in Henderson v Channel Islands Ceramics 2010, a dismissal was inevitable. The test points include:

"i) was the employee aware of the reasonable requirements of their role and the required adherence to the policies and practices of their employer?

ii) when the employer considered they had not met these requirements and/ or there had been a failure to adhere to reasonable policies and practices, were thesedeficiencies communicated to the employee?

iii) was the employee made aware of the impact of their alleged failings and the potential outcome to them personally if they failed to correct their alleged shortcomings; up to and including their dismissal? iv) was the employee given enough time to correct the alleged shortcomings, and, where applicable, given support from management to achieve the required changes?

v) was the sanction applied one that a reasonable employer might apply given their reasonable consideration of the above tests?

vi) what was the adherence to company disciplinary policies and did the employer try to abide by the Commerce and Employment Department code of Disciplinary Practice and Procedures in Employment?"

It is clear at this point, that these markers had clearly been met.

As a result, the Tribunal found that the Applicant was indeed unfairly dismissed under section 5(2)(a) of the Employment Protection (Guernsey) Law 1998, due to a breach (albeit a minor one) by the Respondent by virtue of failing to follow all stages of the disciplinary procedure correctly.

However, compensation was dramatically altered. The Tribunal determined that the Applicant's behaviour was so contributory to her dismissal as provided by Section 23(2) in the Employment Protection (Guernsey) (Amendment) Law, 2005 that she was entitled to a reduced amount and, as such, her award was reduced by 95%.

This case, whilst shocking for many reasons, does not in any way mean that employers can overlook correct procedure, even if they have a very good reason to dismiss. However, it does give them some comfort that, whilst an employee may win the battle, they may not always win the war.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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