The questions this week are:
Is an employer’s reasonable belief of a breach of contract enough to defend a wrongful dismissal claim?
Is it ever sensible to defend a claim to tribunal over one week’s notice pay?
Mr Quayum, the Claimant, commenced employment with Firstsource Solution, the Respondent, as a customer experience adviser. The Respondent provided outsourced customer services for many clients, including Sky.
The Claimant was employed by the Respondent for little of 3 months. During this time he received two complaints from customers over how he handled their calls. The crux of the complaints was being pushy, argumentative and rude. One of the complaints resulted in the Respondent believing the Claimant called the customer a liar.
One of the complaints resulted in the Claimant’s performance and conduct being discussed. The Claimant stated he believed the customer was lying but did not call her a liar. Nothing in the call transcript suggested the Claimant called the customer a liar.
Following the meeting, the Claimant stated “Don’t feel well, not in the right frame of mind. But to be fucked up by this bitch (the customer), has pissed me off.” The Respondent did not treat this comment as misconduct. The Respondent also did not suspend the Claimant following the complaints.
The Claimant then had a period of sickness absence. Following this he was invited to a probation review meeting to discuss his performance, conduct and absence. The Claimant then went off work. The Respondent believed he was AWOL as the Claimant had not contacted the Respondent to notify them.
The Respondent held a review meeting in his absence and his probation was not confirmed, rather than being formally dismissed. Despite this Claimant was not paid notice. The Claimant commenced ET proceedings for wrongful dismissal and sought remedy of one week’s notice, less than £300.00 after tax and NI deductions.
At the hearing, the Claimant argued he tried contacting the Respondent to report his absence, but his calls were not answered. He also stated he had since got a new phone and was unable to provide a call history as documentary evidence (slang term for cow manure, perhaps?).
However, the Respondent’s absence policy stated that if an employee was suspected of being AWOL, they would be contacted by the Respondent and warned that being AWOL is a disciplinary matter. The Respondent’s HR Manager admitted in cross examination that this did not happen. It was also admitted that being AWOL was the repudiatory breach, not the complaints.
The ET held the Claimant was wrongfully dismissed. The ET found that the Claimant was, on the balance of probabilities, absent. However, this was not a repudiatory breach of contract as the Respondent had not taken the necessary to determine whether the Claimant was AWOL. The Claimant was awarded a week’s notice as remedy.
The Takeaway point:
No, a belief that there has been a repudiatory breach of contract is not sufficient to defend a wrongful dismissal claim. They needed to have called the Claimant or otherwise confirmed he was AWOL. This case is one of many that exemplifies how a dismissal can be fair but also wrongful as a reasonable belief is not sufficient.
This case also highlights how simply paying notice would have been a better use of resources for the employer. A one-hour hearing lasted a full afternoon and the Respondent used counsel. This does not seem cost effective for a claim worth less than £300.00.
This case also exemplifies why a scattergun approach for dismissal is often risky. Instead of getting bogged down in call conduct and being AWOL, the employer had a slam dunk reason for dismissal – calling a customer a bitch during a review meeting. The problem employee could be dismissed fairly at this point but the employer instead fudged it. If the employer had kept it simple, the dismissal would have been fair.