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Does (business) size matter?

The case of Wileman v Lancaster & Duke Ltd highlights that small businesses cannot rely on a lack of administrative resources when it comes to having in place appropriate policies and procedures. All employers, regardless of size, must ensure that they have basic policies and procedures in place and act reasonably when dealing with employees.

Wileman v Lancaster & Duke Ltd

Ms Wileman was employed as a recruitment consultant for Lancaster & Duke Limited from 22 September 2014 and after a successful probationary period was given the position of Recruitment Manager. Throughout her employment, Ms Wileman consistently obtained on average £500 monthly bonuses in addition to her salary and was a productive worker who made money for the business. Despite Ms Wileman’s success, the directors of the company stated that they had to speak to Ms Wileman on several occasions about her offensive behaviour which amounted to bullying and harassment. There were complaints about her rude and abrasive attitude and an ex-employee (who had only been with the company for a few days) described Ms Wileman as “quite toxic” and “behaving like a playground bully”. However, no meetings or disciplinary action took place in relation to these complaints; there were no more than passing discussions about her behaviour.

The relationship between one of the directors of Lancaster & Duke, Mr Weaver, and Ms Wileman was acrimonious with discussions between the two often getting heated and the pair constantly clashing over work issues. In a meeting on 25 August, Mr Weaver said he issued Ms Wileman with a verbal final warning. Ms Wileman continued to work for Lancaster & Duke for a further 4 weeks after this and during that time had discussions with a colleague, Ms Thomas, (with whom Ms Wileman was also friends with outside of work) about her performance and whether she was enjoying the job. Ms Thomas indicated she was not happy and Ms Wileman advised that she might be better suited to a different job as if her performance didn’t improve her long-term employment would be questioned. This conversation continued on a personal level, outside of work through social media whilst Ms Wileman was on annual leave. Ms Thomas then applied for various roles and subsequently resigned on 19 September. In discussions with Mr Weaver about Ms Thomas’ resignation the fact that she had spoken to Ms Wileman prior to resigning came up in conversation. On learning of the conversations between Ms Wileman and Ms Thomas, the directors of Lancaster & Duke decided that Ms Wileman would have to go because of this discussion and her deteriorating relationship with Mr Weaver. The decision to dismiss Ms Wileman for gross misconduct was communicated to her in a telephone conversation on 20 September, 2 days before she would have had 2 years’ service. Ms Wileman called to collect her personal effects from the office the same day and she was given no right of appeal. There was no enquiry or investigation undertaken prior to the dismissal. Ms Wileman brought a claim in the Employment Tribunal for unfair dismissal.

Employment Tribunal decision

Firstly, the Employment Tribunal found that although Ms Wileman was dismissed summarily on 20 September, 2 days before she would acquire 2 years’ service, Lancaster & Duke were required to give Ms Wileman one weeks’ statutory notice, which by virtue of the provisions of the Employment Rights Act 1996, entitled her to bring an unfair dismissal claim as she was deemed to have 2 years’ 5 days service.

Secondly, the Employment Tribunal found Ms Wileman’s dismissal was unfair and that she should receive a 25% uplift in compensation because her employer had failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Thirdly, the Employment Tribunal found Ms Wileman’s compensation should be reduced by 25% because her conduct had contributed to her dismissal.

The Employment Tribunal said that Lancaster & Duke’s case was confused and that while the discussions between Ms Thomas and Ms Wileman were the catalyst for her dismissal, they were not the whole story. It found that neither director of Lancaster & Duke had any meaningful past experience of managing employees describing the management style as “bordering on feckless”. There were no systems, procedures or policies in place in respect of employment obligations and no job descriptions or specifications set out for employees.

The Employment Tribunal found that there was no evidence to suggest any significant discussions had taken place in relation to Ms Wileman’s conduct and in fact, the definition of Ms Wileman’s conduct as “bullying and harassment” had only come about as a result of a discussion between the director, Mr Weaver, and an ACAS officer; these were not Mr Weaver’s own words. Moreover, whatever concerns Mr Weaver had about Ms Wileman’s conduct, no formal action was taken. The Employment Tribunal found it “highly likely” that Ms Wileman’s work ethic and experience in the recruitment industry could come across as abrasive but is was also probably a factor in why she was good at her job.

The Employment Tribunal said that although Ms Wileman’s conduct could be a potentially fair reason for dismissal, with the absence of any process of investigation, the Employment Tribunal could not accept that any belief held as to her conduct could have been reasonable. The Employment Tribunal said that a reasonable employer would not rely on historic matters which had previously been ignored and which had not given rise to disciplinary action to subsequently dismiss an employee.

In conclusion, the Employment Tribunal said no notice was given to Ms Wileman that her conduct was in question, the disciplinary charges were not set out, no evidence of the charges was set out, there was no meeting with Ms Wileman, there was no opportunity for her to be represented or for her to discuss her version of events and she was not given any chance to appeal. The Employment Tribunal said it was hard to identify any of the minimum requirements of the ACAS Code having been complied with.

Comment

Whilst smaller businesses may be given some leeway in an Employment Tribunal due to their size and administrative resources, this case highlights that a Tribunal will not excuse the absence of proper policies and procedures and the necessity to follow a basic process to terminate an employee’s employment.

Every employer should have as a minimum, terms and conditions of employment and a basic staff handbook advising employees how to behave at work and setting out how as an employer you will deal with misconduct issues. Having such documents ensures that employees know what is expected of them in terms of standards of behaviour and performance and will help employers to adopt a consistent and fair procedure when dealing with misconduct issues and avoid claims for unfair dismissal.

For any advice in relation to staff handbooks, contracts or policies and procedures please do not hesitate to contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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