The warning comes on the back of a case where a hotel had to pay its former head chef £11,000, even though he was jailed for GBH after biting and spitting at police officers.
James Harvey, 37, was convicted of causing GBH after biting two special constables in Guernsey and spitting his victims’ blood over officers who arrived to arrest him following an altercation with a colleague.
Bosses at Fermain Valley Hotel dismissed him after he was jailed. But, an employment tribunal ruled they hadn’t followed proper procedures and demanded that they pay him £11,000.
Ed McFarlane, employment law specialist at Deminos says that while Guernsey is an independent jurisdiction, its law on unfair dismissal has similar principles to UK law.
“The tribunal accepted that the chef could have been fairly dismissed for his conduct, but criticised the hotel for not carrying out its own investigation into the incident, for not getting the employee’s version of events, and for not informing the employee of his dismissal until nearly six months after his arrest,’ he adds.
McFarlane says that the hotel could not show that the decision to dismiss the chef was communicated to him as their copy of the dismissal letter had been lost and the prison it was sent to had no record of receiving it.
Dismissals don’t take effect until employees are told, or they have every reason to believe they have been dismissed.
He adds, ‘Cases like this are rare, and it is disappointing the Guernsey tribunal did not significantly reduce compensation because of what is called ‘contributory conduct’ in the UK, which could have led to a reduction of up to 100 per cent.
‘But, this extreme case does show the importance of following a formal procedure, no matter how outrageous the circumstances, and of good record keeping to document steps taken.’
Further reading on tribunals
Have tribunal fees changed employer attitudes to employment issues?
The controversial introduction of tribunal fees has not affected employers’ attitudes, according to attendees of a law firm’s mock tribunal workshop.
The introduction of fees in July 2013 sparked a fierce debate, with claims that it reassures employers that they were ‘safe to discriminate’ as employees will be unable to bring tribunal claims without significant financial resources.
Delegates at Winckworth Sherwood’s seminar were clear this is not the case for them, as employers; their behaviour has not changed at all since the introduction of the fees.
The interactive seminar, co-hosted with Buzzacott, was attended by 50 HR leaders from a variety of sectors including education, real estate, retail, housing, technology and finance and provides delegates with the knowledge to navigate the complex and confusing process of fair conduct dismissal.
Seminar chair Sue Kelly, a partner focusing on disputes arising at or around the end of employment, says, ‘Since the introduction of the fees, total tribunal claims have fallen by nearly 70 per cent and unfair dismissal claims by just over 70 per cent.
‘Despite this reduction, our delegates were clear it hasn’t impacted their behaviour as employers – for better or for worse.’
Winckworth Sherwood has run three day-long ‘mock tribunal’ sessions, seeing more than 100 HR professionals learn how to avoid a tribunal. The workshop includes document review and roleplay scenarios.
Kelly adds, ‘Trade union UNISON has challenged the lawfulness of the fees. Although they were unsuccessful in the Court of Appeal, they have applied to the Supreme Court for permission to appeal to them and so it is possible the fees with either be reformed or removed in the future
‘The government announced a review of employment tribunal fees back in June 2015, and its outcome is expected by the end of the year. However, regardless of the outcome, so long as employers follow the advice we provide, they will be well positioned to avoid tribunals altogether.’