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
Miss X was a night-care assistant at a local care home. She
commenced employment in 2013 with 3 months' probationary
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
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
v) was the sanction applied one that a reasonable employer
might apply given their reasonable consideration of the above
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
It is clear at this point, that these markers had clearly been
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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