The claimant complained that he was unfairly dismissed after seeking payment of his wages from the respondent without prior discussion or a right of appeal. He also alleged that from the start of his employment he had not received holiday pay and was paid below the minimum wage. The respondent resisted the claims and asserted that the claimant was initially brought in on a training scheme and only later formally employed as a casual worker on -call as required, was not entitled to notice and had resigned when asked for keys of the shop.

There was a dispute as to whether the claimant resigned or was summarily dismissed. Upon finding that the claimant was not afforded the right to appeal his dismissal, the tribunal found that the dismissal was automatically unfair under Article 130A(1) of the 1996 Order; the non-completion of the dismissal and disciplinary procedures being wholly attributable to the failure by the respondent to comply with its requirements.

An important question posed by the Tribunal was whether following the statutory procedures would have made any difference to the eventual outcome. The tribunal considered that had the claimant been informed of his right of appeal he would have pursued it and put forward mitigating circumstances. It held that in all likelihood the parties would have resolved matters between them and the claimant would not have been dismissed in the circumstances. Added to this, it was held that the claimant suffered a series of unauthorised deductions from wages in respect of holiday pay and suffered a loss as a result of being paid at less than the national minimum wage in breach of contract.


Practical lessons

Whilst a common unfair dismissal scenario, the important point here lies in the failure to comply with the statutory dismissal and disciplinary procedures. The respondent demonstrated a complete lack of adherence to the procedures and the claimant was able to show that if they were followed the outcome could have been different. Employers can protect themselves by ensuring that when they dismiss an employee for misconduct that they are sure that no procedural steps woul d have merited a different outcome or, more securely, follow the statutory steps and demonstrate a willingness to comply with the legislation and present themselves as a reasonable employer.