What was the claim?
The employee made a claim for unfair dismissal, unpaid holiday pay and compensation in relation to not receiving his written terms of employment and discrimination in relation to his partner’s pregnancy.
The employee claimed that the reason for his dismissal was because the employer did not want to pay him for paternity leave and dismissed him less than an hour after the employee’s partner had put a post on Facebook seeking information about how an employee should go about seeking paid paternity leave.
What was the employer’s position?
The employer’s case was that he had given the employee notice as he did not think he was a good or experienced plasterer and that he’d been badly let down as his standard of work and that his attitude was poor. The employer sought to rely on a work-related incident some 2-3months prior to the dismissal.
What does the law say?
Article 6(1) of the Discrimination (Jersey) Law 2013 states that “A person discriminates against another person (the subject) if, because of a protected characteristic the person treats the subject less favourably than the person treats or would treat others.”
Article 6 (8) states “in relation to the protected characteristic of pregnancy, maternity and sex… and where the subject is not a woman, no account is to be taken of the special treatment afforded to women in connection with pregnancy or childbirth.”
What did the judge say?
The judge decided in favour of the claimant in regard to the claim for Unfair Dismissal, Direct Discrimination and Failure to provide written employment terms.
Both the employee and employer gave evidence at the Hearing, the panel preferred the evidence of the employee who was calm and poised when giving evidence by contrast to the employer who sometimes appeared to contradict himself and was often quite difficult to follow.
The panel did not accept that the reason for the dismissal was his capability or quality of his work. The Tribunal were satisfied that the reason the employer decided to give the employee his notice was that he had seen and thought about the post put up on Facebook.
The Judge noted that by offering the claimant additional work earlier on the day of dismissal did not support his contention that he was a poor worker and that if the matter that occurred 2-3 months ago was so important then the employer would have dealt with it in real time.
What was the award?
The judge awarded the employee £2,322 for Unfair Dismissal, £1000 for Direct Discrimination and £580.50 for £3,250 for failure to provide written employment terms.
What are the key take aways and learnings?
Discrimination legislation includes both direct and indirect discrimination, victimisation and harassment to protect people who are treated less favourably, or they are disadvantaged on the basis of a protected characteristic.
This also applies to discrimination by association – where someone is treated less favourably because of a protected characteristic – they themselves do not have to possess the characteristic.
Employers must adopt a zero-tolerance policy to discrimination and ensure they have updated policies and procedures to support this approach.
It is never safe or wise to rely to rely on “stale” examples of conduct or capability to try and justify a dismissal weeks or months later. Employers should investigate and take action promptly – as close as possible to in real time.
In Jersey law, the Employment Law 2003 states that an employee must be provided with a written statement (of the terms of their employment) not later than 4 weeks after employment begins.
How can HR Now help?
The HR Now team regularly advise and support business and clients of all sizes from all sectors on managing complex casework. We provide the highest quality handbooks, contracts and policies. We also provide effective training to enable mangers to carry out their roles in handling complex employee casework. We also assist businesses in procuring HR software/HR Information Systems that enable the production of reports, date and evidence.
When it comes to Tribunal claims we offer a bespoke, tailored project approach to managing every stage of the Tribunal process from response to the claim form to representing at the final hearing. Our approach is (1) expert and professional, (2) offers value for money and (3) is underpinned by a successful track record of delivering results.