The recent decision in Evans v Open Sight highlights a situation in which an employee can bring an unfair dismissal claim, despite being employed for less than one year, if the reason for the dismissal is deemed to be for an 'automatically unfair reason'.
Mrs Evans started part time work for Open Sight (a charity) in September 2010 and was subsequently offered full time employment, which began in November 2010. Mrs Barrett, the deputy chief executive, had attended Mrs Evans' interview for the full time position and opposed her appointment, but she was overruled by Mr Hedges, the chief executive. Mrs Evans was managed by Mrs Bellamy, who had been instrumental in recruiting her. It was alleged that Mrs Barrett displayed signs of professional jealousy towards Mrs Evans who was substantially better qualified.
In November 2010, Mr Hedges was suspended based on complaints made by Mrs Barrett. He asked Mrs Evans to accompany him to his disciplinary hearing in December, which she did. In November 2010, Mrs Bellamy was also suspended based on allegations made by Mrs Barrett and asked Mrs Evans to accompany her to the disciplinary hearing. In early December a further member of staff, Mrs Archenhold, asked Mrs Evans to accompany her to a formal grievance hearing regarding complaints she had made against Mrs Barrett. Mrs Evans was dismissed before the hearings of Mrs Bellamy and Mrs Archenbold were held.
Mrs Evans' probationary period ended on the 30 November 2010 and Mrs Barrett, who was acting as Mrs Evans direct line manager in the absence of Mrs Bellamy, held a probationary review meeting with her on 9 December 2010. Following this meeting Mrs Barratt took the decision to dismiss Ms Evans on the grounds she had not met the standards required of her post. Mrs Evans claimed that the dismissal was automatically unfair, arguing that the principal reason for the dismissal was that she accompanied, or sought to accompany colleagues at disciplinary and grievance meetings. If an employee is dismissed for such a reason there is no qualifying period of employment needed before they can bring such a claim.
The Tribunal found that, whilst the reason for dismissal was in part a conflict between Mrs Barrett and Mrs Evans, the principal reason for the dismissal was related to Mrs Evans acting as a representative for her three colleagues and as such was an automatically unfair.
Best Practice
Employers must be careful not to assume that if an employee has under one year's service, they can dismiss them with impunity. It is important to remember that there is no qualifying period of employment needed for an employee to bring a claim for a dismissal which is considered automatically unfair.
Some of the more common automatically unfair reasons for dismissal are listed below:
- For performing functions as an employee representative.
- For reasons connected with pregnancy or childbirth.
- For reasons connected with rights under the Working Time Regulations.
- For making a protected disclosure.
- In connection with an application for flexible working.
- In connection with time off for studying and training requests.
- For a reason connected with trade union recognition, membership or participation.
- In connection with exercising the right to be accompanied to a disciplinary or grievance hearing.
- For taking part in protected industrial action.
For further information on discrimination, please contact Allison Cook on 0117 314 5466.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
