Claim
What were the Claims?
The Claim was for constructive unfair dismissal - alleging six "breaches of contract" that were so "fundamental and significant" (the definition required by Jersey law) as to justify him resigning.
1. A manager agitated for his dismissal for failing to keep his GPS phone on.
2. A manager threatened him with dismissal because GPS records showed he was a bad driver.
3. A witness would testify that he heard managers discussing how to get rid of the Claimant.
4. Managers had not disciplined other drivers who had harmed wildlife, and they had no right to insist on discussing the seagull incident with him.
5. Requests from medical certificates were unnecessary and burdensome as there was no company sick pay scheme so these only had to be given to Social Security and it was unfair to discipline him regarding sick notes and additionally they were doing so because of a diagnosis of stress.
6. There was a breakdown in trust because managers lied to him about the contractual right to use his personal vehicle and claim a mileage allowance and associated insurance issues.
There was a claim for disability discrimination related to mental health on three counts, (the Claimant stated that he suffered from personality disorders and that he was in receipt of Long Term Sick benefit related to that disorder and he was therefore disabled),(1) direct discrimination because the employer "engineered" a customer complaint about him harming seagulls to create an excuse to justify his dismissal, (2) a claim for harassment because managers wanted to talk to him about the seagull incident and (3) that by requiring him to discuss the incident and then invoking disciplinary proceedings the employer had failed to make reasonable adjustments.
There was a claim for no payslips, it being alleged that payslips were provided infrequently and only when directly requested.
There was a claim for breaches of the legal right to have rest breaks, alleging that he was frequently not given the 20 minute break required by law each day and that he was not afforded a 24 hour break in every 7 days.
What was the employer's position?
The employer contended that –
1. They at no time related disciplinary action to the seagull maiming complaint. The two potential conduct issues related to the Claimant's abusive, offensive and insubordinate behaviour towards mangers and to his refusal to provide sick certificates for an extended period of absence. Similarly, there was no invocation of disciplinary action related to stress related absence, as the absence was related to hip pain.
2. The turning the phone off incident did not result in any form of disciplinary action.
3. The "bad driver" data is an absolute requirement of the of the employer's insurance policy and is always shared with drivers when required to do so by the insurer protocols.
4. The "get rid" conversation never happened.
5. The seagull incident was never discussed as a disciplinary matter - only as sharing a customer complaint.
6. There was an explicit handbook requirement to provide sick certificates, and this was a reasonable request particularly as one of the explicit reasons for the request was to enable consideration of reasonable adjustments that could be made in the disciplinary process.
7. There was no contractual right for drivers to use their own vehicles and claim mileage.
What does the law say?
The law requires a claim for constructive unfair dismissal to establish that there were "fundamental breaches of contract by the employer that were resigned in response to and that breaches were not waived or affirmed, the breaches must be so fundamental and significant as to go to the heart of the contract OR show that the employer no longer intended to be bound by one or more essential contractual terms". The conduct of the employer must be looked at "objectively in all the circumstances and from the perspective of a reasonable person".
For direct discrimination claims a comparator, without the disability must be identified who was treated differently.
A harassment claim must show that the incident(s) "violate the dignity ...create an intimidating, hostile, degrading, offensive environment".
There is a statutory obligation for an employer to be given a written, itemised payslip “at or before the time at which the payment is made".
As to rest breaks, there must be an uninterrupted 20-minute break in any continuous period of 6 working hours and a weekly rest break of 24 hours every 7 days (OR 2 x 24 hours in any 14-day period). An employer will breach the law if they prevent or refuse such breaks.
What did the judge say?
There was evidence of a breach of the law on payslips in that there were a few occasions where payslips were late, BUT this caused the Claimant no detriment. Any breach of the law was minor and technical and the award for the breach was reduced from 4 weeks’ pay to 1 week (£750).
There was a technical breach of the law on rest breaks. The Company DID provide the opportunity for 20-minute breaks and the law says that workers are "entitled to but do not have to take them". The Claimant chose not to take them and there was no breach. However, data showed that there was ONE occasion during his employment where there was no 24/7 or 14/24 break which was considered to be a "limited breach" and the award was reduced from 4 weeks’ pay to 1 days’ pay (£120).
The judge found that the employer did NOT discriminate on the grounds of disability. The employer was unaware that the disability existed - they were never formally notified (and the one jocular reference by the Claimant to a junior supervisor was found to be inadequate by the Tribunal) there was therefore no requirement to consider reasonable adjustments. Additionally, and in any event, two of the alleged incidents occurred more than 8 weeks before the claim was made and were not "continuing acts" and were therefore out of time anyway.
The Tribunal considered that any non-disabled employee who behaved towards managers regarding a customer complaint as the complainant did and/or refused to provide sick notes would have been treated the same.
All claims related to disability FAILED.
With regard to the six alleged breaches of contract the judge accepted the employer's evidence and found in favour of the employer on each count. The Claim for constructive unfair dismissal FAILED.
What are the key take aways and learnings?
Employers can take comfort from the uniform stance taken by the Jersey Tribunal in applying the rightly demanding tests to support allegations of unfairness and discrimination. Constructive Unfair Dismissal is a very common claim but one that very rarely succeeds and of those few that do succeed, the data shows that the Tribunal usually decides to not make the full award allowed for by the law but applies very significant reductions – usually of at least 50% and often as high as 75-85%. This is usually for one or both of two reasons – the breach by the employer was of a minor or technical nature, and the conduct or behaviour of the Claimant was such as to warrant a reduction because of their “contributory fault”.
In discrimination cases too, the Tribunal has a very low threshold for allowing a claim for discrimination to proceed to a hearing - BUT a very high threshold indeed for discrimination, victimisation or harassment to be found and awards against employers are not common and rarely involve large sums.
Employers should note that the claims that DO succeed most often at Tribunal are those relating to failure to comply with the laws on providing contracts, payslips, rest breaks and holiday pay. As in this case these successful claims rarely achieve the maximum awards defined in the law so the financial damage may not be significant – but he employer does face the direct cost of responding to and defending the claim, the indirect cost of the disruption and distraction that the Tribunal process causes the business and the management, and of course the reputational damage caused by the publication of and reporting of the case.
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.
HR Now offers a service that clients of all sizes and types, whether they have inhouse HR or not, are increasingly commissioning - which is for us to provide an all-inclusive case management service from investigation to appeal providing clients with the confidence that our expertise and independence is beneficial in terms of negating the impact on the capacity of the business to deal with the matter and removing any personality related issues and of course guaranteeing expert, legally compliant processes and outcomes.
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.