Hello again everyone and welcome back to our case of the week. We hope you all had a lovely Easter break and are suitably comatose from overconsumption of chocolate eggs! Last week’s case had a dive into one of the few constructive dismissal claims that succeeded (only around 1 in 5 of them do) and how ACAS themselves failed to follow a proper procedure in dealing with an employee’s holiday pay. Anyone that missed out on our monthly newsletter can catch up on the latest through the link here. In it we looked at Gary Lineker’s tweets and whether they would amount to a protected belief, employee issues with Twitter, and an expletive ridden B&Q customer announcement!
This week we look at a case that made the news, in which a student barber was dismissed for taking too many Mondays off after (what her employer thought were) too many late nights out.
Acute barbers, a trading name used by brothers Christian and Kyle Donnelly, had employed Miss Thorley as an assistant barber in October 2018 inside the Student Union building of her university.
The Claimant, after starting was generally held in high regard by her employer, as the Tribunal found that Christian regarded the Claimant as a friendly, talented barber. The feelings may not have been mutual, however, as the Claimant had multiple informal discussions about her conduct surrounding openly bad mouthing the business to customers and telling customers of perceived botched jobs carried out by her employer.
This wasn’t the issue that ultimately proved fatal to the relationship. Mr Donnelly told the Tribunal that the Claimant had a pattern of serial absence on Mondays, routinely calling in sick. While this was the cause of her dismissal it is worth noting that there were no attendance records kept to evidence this pattern of absence. Without this evidence the Tribunal could only reply on sporadic medical records and a single WhatsApp exchange on the date of dismissal to infer the repeated absences.
On the weekend in question, the Claimant had organised a house party. The Respondent was aware of the party and on the Friday before, Mr Donnelly said to Miss Thornley “don’t let me down on Monday,” clearly referencing previous absences under similar circumstances. Unfortunately, at 7.41am on Monday morning a message comes through stating that the Claimant felt sick and could not attend work. Angry at the message and the absence, the Respondent dismissed her on the spot, stating “I’m letting you go…I could do with the extra income anyway.”
After the dismissal Miss Thornley bought two claims. The first was a claim for disability discrimination considering her recent diagnosis of menorrhagia (heavy periods), a symptom of endometriosis. The other was a claim for unfair dismissal.
Providing the Tribunal with a copy of an examination report dated 28th September 2021 and further medical records, the Claimant stated that over the course of several months she had attended GP appointments in relation to her “struggling with heavy periods”, her notes also mention a referral to a gynaecology department. However, at no point during her employment nor after had a formal diagnosis been provided and the Tribunal was informed that the Claimant was still on a waiting list to see a relevant medical professional. While Mr Donnelly had been informed of these ongoing medical issues, he was not informed that the Claimant considered herself disabled, nor the extent to which it could impact her working life.
The Tribunal considered the evidence firstly as to whether the Claimant showed she had a disability at the time she was dismissed. Given that the medical records did not show sufficient proof of endometriosis, only a referral to gynaecology, the Tribunal could not conclude the Claimant suffered from endometriosis, only menorrhagia. While stating that this was a continuing physical impairment, the Tribunal found it did not have a substantial effect on the Claimant’s ability to carry out day-to-day activities and therefore she did not have a disability as defined by the Equality act 2010 at the time of the dismissal.
The Respondent did not fare well in it’s defence of the second issue – the unfair dismissal. Taking into account the size and administrative resources of the business when assessing whether the dismissal was unfair, the Tribunal must, without substituting it’s view for that of the employer, decide whether the employer acted reasonably in treating the reason for dismissing the employee as sufficient. The Tribunal must also be satisfied that appropriate procedural steps had to be taken prior to the dismissal. Dismissing an employee on the spot was not sufficient and the Tribunal found in favour of the Claimant, finding she had been unfairly dismissed.
The Takeaway Point
There are two important things to consider with this case. The first is the issue arising around the discrimination, especially relating to endometriosis. The second is the procedure for conducting disciplinaries and dismissals to ensure a fair outcome.
It is worth mentioning at this point that the Government launched a new Women’s health strategy in July 2022 to try to better understand conditions like endometriosis and the impact they have on the workplace following a call for evidence on the topic receiving almost 100 000 responses. The strategy looks to increase the research and the data gathering in relation to these conditions and the access to health services, so while we are yet to see the full conclusion of the strategy, conditions such as these are becoming a point of public policy moving forward.
For the time being however, without a formal diagnosis and without evidence that was sufficient to show that the condition met criteria under the Equality Act, the Tribunal found the Claimant was not disabled. It may have been different if the employee had informed her employer of her condition and provided more details of how it affected her day-to-day activities.
The other point for employers here is to always ensure a fair disciplinary procedure is followed. Had this happened, the Respondent may have had a better chance of defending the unfair dismissal claim, as an employee’s conduct is a potentially fair reason for dismissal. However, the Tribunal notes specifically the lack of recorded informal or formal warnings, meetings or discussions around the concerns raised, so this is probably another example of an employer failing to take action to nip a problem in the bud and instead only taking action when the problem reaches an advanced stage.
It is also found that the employer had failed to provide a written set of terms and conditions of employment, failed to pay at or above the minimum wage, did not pay the required notice period, or follow the correct procedures in dealing with employee disciplinaries (leading to a 25% uplift in the compensatory award). But this bit isn’t flashy enough to make headlines anyway!