Can the Covid-19 Pandemic be used as a defence in unfair dismissal claims?
A recent Jersey Employment Tribunal case considered an employer’s defence argument that their failings in terms of statutory and good practice HR processes were compounded by and, as a result of, the unprecedented and stressful times caused by the pandemic. The unfair dismissal case ruled in favour of the claimant, and the result reinforces the need for all employers to get good quality HR advice and support when it becomes necessary to dismiss an employee.
Has Covid-19 been used to defend unfair dismissal claims?
This is one of the first cases where the pandemic was offered as a mitigating factor by the employer but the Tribunal recorded that, "having taken this into consideration, we find the dismissal to be unfair". There is as yet little C.I. or UK case law on the pandemic as a defence and it may be that a body of decisions will emerge where it is held to be a valid defence. However, early indications are that, pandemic or no pandemic, employers will be held to account based on current Employment Law.
What was the case?
The case in question, was Mihlalache v Fauvic Nurseries Ltd T/A Holme Grown. Ms Mihlalache claimed unfair dismissal on the grounds of redundancy with age related discrimination. Fauvic Nurseries said Ms Mihlalache was dismissed because of her conduct and behaviour and although it accepted that there was 'an element of unfairness in their approach', it pointed to the unprecedented and stressful times caused by the pandemic.
In this case the Tribunal found that Ms Mihalache’s behaviour did contribute to her dismissal – this included shouting at and bullying colleagues and in one instance throwing a crate at a colleague. But ….. and it’s a BIG BUT …. The Tribunal found the dismissal to be unfair and awarded the claimant a total of £3,909.27.
What went wrong for the employer?
There were pretty much all of the classic own goals that with the benefit of hindsight or with expert HR advice from the outset, could have been avoided and the case won.
- There was no proper investigation.
- No notes were taken of any meetings or conversations.
- The translator used by the company was the person who actually made the complaint against Ms Mihalache!
- There was no disciplinary hearing and therefore no opportunity for Ms Mihalache to exercise her statutory right to be represented or accompanied.
- No written reasons for her dismissal were provided.
- No right of appeal was given.
Losing a Tribunal, especially when a business believes itself to be in the right is incredibly frustrating but also expensive in terms of costs, a huge distraction to the management team and often most seriously, reputational damage.
If a business believes there is a need to dismiss an employee then it is important to do so fairly and legally. HR Now are experts in supporting businesses across the C.I. and UK in managing dismissals and in defending Tribunal claims – if we can help get in touch at hello@hrnow.je or call 01534 747559.
To find out more about best practice for disciplinary matters, sign up to Tony's Hints and tips from employment tribunals webinar on 10th November 2021, and read our Discliplinary Advice Guide.