In this week’s alert we review a case involving a receptionist who was dismissed due to his employer’s belief that he was going to give evidence against the employer in an upcoming tribunal claim brought by another employee, says Tom Scaife of Baines Wilson LLP.
A Algosh v Care Property Management Ltd (CPM)
Algosh had been employed as a night receptionist at CPM since 20 December 2013.
On 28 June 2019, Priam Kotian (CPM’s general manager) contacted Algosh whilst he was on annual leave stating that they needed to ‘have a chat’ before Algosh would be allowed to return to work from his leave.
Subsequently, on 5 July 2019, Algosh and Kotian met, during this meeting Kotian informed Algosh that he was suspended as he was under the belief that Algosh was going to give evidence against CPM in relation to an upcoming tribunal concerning a claim of sexual harassment brought by another employee of CPM.
Algosh denied that he was due to give any evidence in the upcoming tribunal however Kotian told Algosh that he would send him an email to confirm his suspension (though he never sent the email). Algosh attempted to contact Kotian to receive a written update and outcome but never received any response from Kotian.
After instructing legal representatives, on 12 February 2020, Algosh’s solicitors called CPM who confirmed that Algosh had been dismissed. Algosh was suspended without pay for 7 months, he was not invited to any disciplinary hearing and was not presented with any disciplinary case to answer for.
Under the terms of Algosh’s contract of employment he was entitled to receive 6 week’s written notice of termination. Algosh did not receive any notice and was not paid in lieu of his notice.
Algosh brough a claim for unfair dismissal and for breach of contract in relation to not receiving his notice pay.
The Tribunal heard that Algosh had tried to look for alternative employment however, due to Covid-19 he found it difficult to find alternative employment, he had applied for various jobs including supermarkets, cleaning services etc. Algosh remained unemployed until the Tribunal hearing, receiving Universal Credit during this time.
On 11 November 2019, Algosh brough a separate claim for unlawful deduction from his wages in relation to his unpaid suspension. CPM failed to present a response for that claim and the Tribunal found that CPM had made unlawful deductions and ordered that £16,910 be paid to Algosh, this figure included a 25% uplift due to CPM’s unreasonable failure to follow the ACAS Code on Disciplinary and Grievance Procedures.
CPM also failed to engage fully with Algosh’s claim for unfair dismissal and breach of contract. Their solicitors were initially instructed to respond to the claim with a ‘blanket’ response denying any wrongdoing without actually replying to the claims made. Later, once CPM’s legal representatives confirmed that they were no longer instructed on the matter, CPM asked for various extensions to respond to the Tribunal, did not follow any case management orders given by the Tribunal and did not attend various pre-agreed hearing dates with the Tribunal. CPM did not login for the final hearing and did not provide sufficient reasons for non-attendance.
Judgment
The hearing took place in Kotian’s absence.
The Tribunal found that CPM had clearly breached Algosh’s employment contract by dismissing him without notice and therefore awarded Algosh £2,280 in damages for breach of contract (6 weeks’ notice pay).
CPM’s failure to respond to the claim fully or present a potentially fair reason for dismissing Algosh inevitably meant the Tribunal finding that the dismissal was unfair. The Tribunal found (in the absence of any reasonable alternative) that the main reason that CPM had dismissed Algosh was due to the belief that he would give witness evidence against CPM at a tribunal for a sexual harassment claim. The Tribunal found that CPM had acted unreasonably in dismissing Algosh.
The Tribunal added that even if a fair procedure had been followed, it believed that Algosh would not have been dismissed.
Even if Algosh had been planning to give evidence at the tribunal for the sexual harassment claim, this would not have been a reasonable reason for CPM to dismiss Algosh. The Tribunal noted that CPM’s actions in dismissing Algosh amounted to an act of victimisation under the Equality Act 2010 (although Algosh had not brought a claim for victimisation, so no judgment or award could be issued in respect of such factual finding).
CPM were ordered to pay Algosh £19, 276.11 (including the £2,280 for the breach of contract) in compensation for unfair dismissal.
Comment
This likely wasn’t one of the more difficult cases the Employment Tribunal has had to dispose of; however, it does highlight an important point (to the extent it needed highlighting) – that employees cannot be punished for giving, or proposing to give, evidence against the employer in a tribunal, especially in respect of discrimination claims.
The case also emphasizes the importance of presenting a full and robust defence to any claims at the outset of the claim as part of the ET3/Grounds of Resistance. Often employers will submit a blanket defence denying everything without providing detail. Whilst that approach can be valid, it’s generally far better to fully plead and put your best foot forward, not least as a fully pleaded defence can assist earlier settlement discussions, with the parties knowing the battle grounds.
Finally, whilst it’s sensible to instruct employment specialists to assist in defending claims, if an employer does decide to represent themselves, complying with case management orders, and of course attending the hearing, is a must!
If you have any questions in relation to unfair dismissal or victimisation or require assistance with employment tribunal claims or have any other HR or employment law queries, please contact our employment team on 01228 552600 or 01524 548494.
