The recent case of Evans v Open Sight serves as a reminder that employees with less than 1 year’s service cannot be dismissed with impunity, even where there are no issues of discrimination. When assessing the risks of a dismissal, employers should always consider whether the employee might have a claim to which no qualifying period of service applies….
Mrs Evans was dismissed by Open Sight in December 2010, with less than a year’s service. Although she was unable to claim ‘ordinary’ unfair dismissal on the grounds of lack of service she lodged a claim for automatic unfair dismissal on the basis that the principal reason for her dismissal was that she had accompanied, or sought to accompany, colleagues at disciplinary and grievance hearings.
Although the Tribunal found that one of the reasons Mrs Evans was dismissed was because of the conflict between her and the Deputy Chief Executive, Mrs Barrett, it held that the principal reason for the termination was that Mrs Evans had acted as a companion for a colleague. Accordingly, the Tribunal held that she had been unfairly dismissed.
In more detail…..
The Deputy Chief Executive of Open Sight, Mrs Barrett, opposed Mrs Evans’ initial appointment and, early on, displayed signs of “professional jealousy” towards her (Mrs Evans apparently had far greater qualifications than Mrs Barrett, and had said at interview that she aspired to Mrs Barrett’s position).
- In November 2010, the Chief Executive was suspended following complaints about him by Mrs Barrett.
- On 1 December 2010, Mrs Evans acted as his companion at his disciplinary hearing. At the hearing, Mrs Evans challenged the fact that Mrs Barrett was acting up as Chief Executive, given that she had instigated the disciplinary proceedings and that the Chief Executive had made allegations of bullying against her.
- Subsequently Mrs Evans’ manager was suspended as a result of allegations made by Mrs Barrett and Mrs Evans agreed to also accompany her to a disciplinary hearing.
- Mrs Evans also agreed to act as companion for the finance manager, who had raised a grievance about Mrs Barrett.
- However, before those two meetings could take place, Mrs Evans was dismissed at Mrs Barrett’s instigation.
Mrs Barrett argued that Mrs Evans had not met the standards required of her during her probationary period. However, no complaints about performance had been discussed with Mrs Evans prior to her probationary review meeting in early December. There was also evidence before the Tribunal that Mrs Barrett had consulted Open Sight’s legal advisers prior to that review meeting and a note of that call stated ‘don’t think it appropriate’, referring to Mrs Evans having acted as companion for 3 colleagues.
A quick reminder….
The role of a companion at a disciplinary or grievance meeting is to assist the worker and the following guidelines apply:
- A companion should be allowed to address the hearing in order to put the worker’s case, sum up the worker’s case, and respond on the worker’s behalf to any view expressed at the hearing;
- A companion should be permitted to confer with the worker during the hearing;
- It is good practice to allow a companion to participate as fully as possible in the hearing, including asking questions of any witnesses;
A companion has no right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it, or prevent the employer from explaining their case.