Employer’s closed mind in dismissal process meant employee was dismissed unfairly (Mrs Lovelady v Mrs Fowler trading as Daniel James – ET/1600788/2019)
In the case of Mrs Lovelady v Mrs Fowler trading as Daniel James (1600788/2019) the Employment Tribunal held that the dismissing employer had had a ‘closed mind’ as to whether there was any option other than dismissal, and therefore upheld the employee’s Employment Tribunal claim for unfair dismissal.
The facts of the case
Mrs Lovelady (the ‘Claimant’) was a beauty therapist and hairdresser who worked for Mrs Fowler trading as Daniel James (the ‘Respondent’). She was employed from 23 March 2016 and had a period of maternity leave from February 2018 to 6 November 2018.
The Respondent was a sole trader and small employer. She did not have any formal policies and procedures in place to deal with things like disciplinaries. Two of the Claimant’s colleagues made it known to the Respondent that they found the Claimant to be intimidating, unfairly critical and reported that she ‘was offensive in her tone and attitude’. At least two costumers also complained about her inappropriate conversations which ‘mainly consisted of vulgar toilet talk and discussions of a sexual nature’.
The Respondent spoke to the Claimant on at least three occasions informally about her behaviour towards her colleagues and what was considered to be inappropriate behaviour in front of customers, however there was no formal or informal warnings issued.
Upon returning from maternity leave the Claimant was upset about a reduction in her hours. A work colleague of the Claimant’s complained that she was exerting pressure on them to reduce their hours so she could do more. Things came to a head when the Respondent went on holiday for a week. One of the Claimant’s colleagues sent a WhatsApp message to the Respondent complaining about the Claimant’s behaviour saying she had been ‘a bit of a bully this week’. The Respondent replied to say she was ‘not pleased’ and that she was upset with the Claimant about her behaviour.
Upon her return the Respondent met with the Claimant on 11 February 2019 and then wrote to her advising her that she would be suspended pending an investigation into gross misconduct. She then sent the Claimant the results of the investigation on 15 February 2019 and invited her to a meeting on 18 February. In that letter the Respondent failed to give the Claimant dates of the alleged incidents, exact words spoken, or the conduct complained of. The letter stated at the end that ‘a decision as to whether there is reason to continue to disciplinary proceedings will be made after the meeting’.
The Respondent investigated the allegations and interviewed staff. Her husband was present at the interviews. A meeting was held on the 18th February, but again the Claimant was not provided with any evidence or substantive details as to the allegations she was facing and at the end of the meeting was advised that the Respondent and her husband would now decide whether or not she was to be dismissed. The Claimant was shocked about this as she had not understood that her job was at risk.
The Respondent wrote to the Claimant on 19 February 2019 advising her that she was being summarily dismissed because of the allegations. She was advised of her right to appeal and the Claimant did appeal, but late. The Respondent was also the appeal’s officer and refused to accept the Claimant’s late appeal.
The decision of the Employment Tribunal (ET)
The ET held that the Claimant had been unfairly dismissed. They found that the Respondent had already made up her mind about the Claimant and the allegations as evidenced by the WhatsApp message she sent, and this was unfair to the Claimant. She also failed to follow a fair, transparent and objective disciplinary procedure. She was in effect the investigation officer, dismissing officer and appeals officer. She did not give any consideration to the appointment of an outsider or third-party investigator or disciplinary hearing chairperson. Whilst the summary dismissal of an employee who was bullying and intimidating colleagues was potentially within the band of reasonable responses of a reasonable employer, here the Respondent has simply taken sides and reached a conclusion without a thorough and fair investigation, consideration of any defence or mitigating circumstances. She had also failed consider options short of summary dismissal.
The ET went on to limit the Claimant’s award to four weeks which they considered to be the period it would have taken to dismiss the Claimant fairly.
Our solicitors’ views on the case of Mrs Lovelady v Mrs Fowler trading as Daniel James
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: ‘This case demonstrates the difficulty small businesses can have in following a fair dismissal procedure where the business is owner operated. The importance of taking proper legal advice and considering alternative options such as outsourcing investigations or appeals cannot be underestimated.’
The decision of the Employment Tribunal in Mrs Lovelady v Mrs Fowler trading as Daniel James (1600788/2019) can be found here.