Case
Gwatkin v K R Court Ltd
Issues
(1) Unfair Dismissal
(2) Failure to follow Disciplinary Procedure
(3) Compensation for Distress caused by manner of dismissal
Facts
The Applicant was employed as a housekeeper by the Respondent management company that was responsible for a sheltered housing site. Her employment commenced on 1st December 1998.
From July 2000, she received treatment for a depressive illness and in November of that year, she discussed with her GP the possibility of part-time work. In January 2001 she saw her GP again complaining of tiredness, stress and depression and was signed off work until 11th March 2001. During this period she met with management about returning to work and possibly working shorter hours, due to comments from some of the owners who had expressed reservations about her. On 26th March she took a bottle of wine into work to celebrate her birthday with the owners. Two days later she received a letter by recorded delivery from the Respondents suspending her on the grounds that she was under the influence of alcohol whilst on duty. There was no prior warning of this nor was she made aware who had alleged this against her. Despite asking for clarification of this, none was provided.
On 11th April 2001 she attended an interview with the Respondents and was told then that the incident occurred on the morning of 12th March 2001 when she apparently had a strong smell of alcohol on her breath. She was not told who had made the complaints which she denied and gave a full account of her movements that morning.
On 27th April 2001, she was notified of a Disciplinary Hearing for the following Monday 30th April, and of two further charges namely:
(1) smelling of alcohol on the morning of 12th March and
(2) "during the change over not being communicative to an owner and not concentrating".
The Applicant indicated that she could not attend the Hearing on 30th April (having previously explained she was unavailable) and it was re-scheduled for 11th May 2001 when an additional charge was made against her of taking "unauthorised leave".
No witnesses were called and the Applicant denied the allegations and handed a letter from one of the owners which wholly supported her case.
On 18th May 2001, she was handed a letter of Summary Dismissal dated 17th May and was informed that the three charges had been made out and that she was being dismissed for gross misconduct.
She requested an appeal which was heard by the Director of Services of the Respondent which was effectively a re-hearing with the Director reviewing all the evidence.
The Applicant's Appeal was upheld on 15th June 2001 but before that she had submitted a medical certificate certifying her as being unfit for work for one month due to depression.
The Respondent made her an offer of re-instatement which she did not accept, since her medical condition was such that she felt incapable of deciding whether or not to accept the offer. Her dismissal therefore remained effective and she was paid statutory sick pay until 15th July 2001 after which she was awarded a Disability Living Allowance.
She claimed that she had been unfairly dismissed and that she had been dismissed in breach of contract.
Decision
The Tribunal found that the Applicant had been unfairly dismissed on 18th May 2001.
The procedures applied by the Respondents were open to substantial criticism and in particular the manner of suspension was insensitive since she was not given details of the alleged incident, nor was she informed who had made the allegations and the dismissal was not in accordance with the Respondent's disciplinary procedure which provided that the maximum penalty for consumption of alcohol would be a final written warning.
The Applicant was awarded £8,760 compensation for unfair dismissal which was broken down as follows:
(i) Basic Award - £382.00
(ii) Loss of Earnings to 31st December2001 - £,3128.00
(iii) Loss of Employment Protection Rights - £250.00
(iv) Compensation in respect of Distress and Humiliation - £5,000.00
The Applicant's loss of earnings' claim was discounted as it was held on the balance of probabilities that she would probably have been unable to continue in employment anyway beyond December 2001 due to her medical condition.
Comments
This case illustrates the increasing importance that Tribunals are now attaching to cases where employees have been dismissed with little regard to their employment procedures and the extent to which the distress and humiliation suffered by the employee can substantially augment the total Award at the end of the day. It is vital therefore that whatever disciplinary procedures are implemented by respondents in relation to their employees, that they are followed to the letter.
Furthermore in this particular case, the fact that the Applicant did ultimately succeed in her appeal on the internal disciplinary proceedings had the effect of exonerating her, thereby reducing the humiliation that she had suffered as a result of her dismissal which had an influence on the Tribunal deciding what was "just and equitable" to award under this head.
Had her appeal not succeeded, then it is quite possible that the compensation for distress and humiliation would have been comparatively greater.
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