Going through a dismissal process is extremely difficult for any employee. However, even after the decision has been made and the termination notices have been sent, the employer still owes their employee an obligation to consider the fairness of any dismissal. Read on for more information.
An Employment Tribunal will consider whether a dismissal is fair or unfair at the point it takes effect: this means the very last day of employment. Unfortunately, employers sometimes forget they have an ongoing obligation to consider the fairness of the dismissal. This is especially where the employee has a long notice period. Employers sometimes believe that because they’ve gone through a procedure, that is their responsibility finished. In fact, a dismissal can become unfair because of events which take place during the employee’s notice period.
These types of issue can often arise in redundancy, sickness absence or capability dismissals. My client’s story below is a good example.
My Client’s Circumstances
My client had been with her employer for fifteen years. In the latter months, she had been unwell and had several periods of absence, some lasting a number of weeks. Her doctor was struggling to diagnose her condition. She had been referred to various doctors and had various tests, but to no avail Due to her frequent absences and the likelihood of their continuing, her employers went through their sickness absence procedures and terminated her employment with twelve weeks’ notice.
Mid-way through her notice, there was a breakthrough in diagnosing my client’s condition and she began to receive and respond to treatment. She wrote to her employers explaining the change in her circumstances. She told them she was recovering well and would be able to return to work. She was even able to suggest a date for a phased return to work. She also provided a letter from doctor indicating that she would be able to manage a phased return to work over 4 to 6 weeks. Thereafter, he expected she would be able to return to her full hours and duties.
Her employer responded by saying that as they had completed their procedure and as the time for an appeal had expired, they were not willing to reconsider their decision to dismiss her. Then, despite my client and her doctor confirming she was able to return to work, they terminated her employment at the end of her notice period.
Assessment of Employment Tribunal Claim and Representation
When my client came to see me, I stated that she had an excellent claim for unfair dismissal. I explained that the Employment Tribunal would consider whether the dismissal was fair or unfair at the point she was dismissed being, of course, at the end of her notice period. At that date, she was able and willing to return to work and therefore her dismissal for sickness absence was unfair.
I assisted my client through ACAS Early Conciliation and submitted her Employment Tribunal claim. Her employer initially disputed the claim but, long before the final hearing, my client started receiving offers to settle. After a short period of negotiation, my client happily settled her claim for the equivalent of a year’s pay.
Can Lincs Law Employment Solicitors Help you?
If you are going through a dismissal process at work, please contact Lincs Law Employment Solicitors on 01522 440512 for a free telephone consultation. Alternatively, for more information about Employment Tribunal claims, visit our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Sally Hubbard, Specialist Employment Solicitor
Lincs Law Employment Solicitors, Lincoln
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