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BPTC Employment Tribunal

In the London South Employment Tribunal

Between – MISS TARA RYANS Claimant AND NURSERY & CO LTD Respondent

Opinion

1. I am asked to advise the Respondent regarding issues relating to the employment of Miss TARA RYANS. This opinion will deal with the likelihood of the Respondent’s defence succeeding, the quantum of damages likely to be awarded and how a trial and the relating adverse publicity may be avoided.
2. Briefly, the facts are that the Claimant was employed as a cleaner by the Respondent from 1st February 2002. She was paid £6 per hour and worked for 25 hours a week. Her weekly pay was £150 gross and £137.43 net.
3. Various issues relating to Miss Ryans’s conduct arose during her employment:
• On 10th October 2006, a verbal warning was given to her after she damaged some equipment.
• A written warning was given in a letter dated 19th October 2006 for failure to clean two of the toilets.
• A final written warning was given in a letter dated 7th November 2006 for failure to clean the staff room.
• The Claimant was suspended on 15th November 2006 after bringing a friend into the nursery without permission.
• A meeting was held on 23rd November 2006 and Miss Ryans was dismissed the following day for breaching the NURSERY & CO Staff Code of Conduct.
4. An appeal meeting was arranged for 11th December 2006, however, Miss Ryans failed to attend due to illness.
5. The matter is due to be listed for trial on 6th July 2007.

Facts In Issue & The Law

1. The key question is whether Miss Ryans’s dismissal was unfair. An employer must have a fair reason for dismissing the employee and must act fairly in the way that the employee is dismissed.
2. Employers must comply with the statutory minimum disciplinary procedure. This is made up of three steps and a right of appeal:
• A written statement must be sent to the employee, detailing the complaint against them.
• A meeting must then be arranged to discuss the matter.
• After the meeting, the employer must inform the employee of their decision and inform them of the right to appeal.
• If the employee decides to appeal, another meeting must be arranged.

Likelihood of Defence Succeeding

1. The Respondent is asserting that the dismissal of Miss Ryans was fair. In order to persuade the tribunal that this was the case, NURSERY & CO must show that Miss Ryans was dismissed for a valid reason. Misconduct does amount to a fair reason for dismissal and there should be no problem in establishing this by relying on her disciplinary record.
2. Additionally, the tribunal must consider that NURSERY & CO acted reasonably. The tribunal will consider whether the Claimant was given sufficient opportunity to improve. On these facts, she was given warning of her conduct on several occasions which is likely to be viewed as sufficient.
3. The tribunal will also consider whether the correct procedure has been followed. On the facts, the necessary procedure does appear to have been complied with in most respects. One issue arising is that Miss Ryans was unable to attend the appeal meeting. Another meeting date should have been arranged but this was not done. This may lead to the tribunal considering that the dismissal was unfair as the correct procedure was not followed.
4. The Respondents appear to have a good chance of relying on their defence with regards to the reason for dismissal. However, the fact that the appeal meeting was not re-arranged may render the dismissal unfair.

Quantum

To calculate compensation, the tribunal will decide upon a basic award and a compensatory award.

Basic Award

The triunal will consider Miss Ryans’s age, years of service and weekly pay. I am unaware of Miss Ryans’s date of birth so have assumed that her four years of service fell between 22 and 41 years of age. To arrive at a basic award figure, her weekly pay is multiplied by one for every year of service.

4 (years service) x £150 (gross weekly pay) = £600

Compensatory Award

1. This will be awarded to cover financial loss incurred by Miss Ryans as a result of her dismissal. In calculating this, the tribunal will take into account her loss of wages potentially from the date of her dismissal until the hearing. She was dismissed on 24th November 2006 and the hearing is scheduled for 6th July 2007, making 32 weeks in all.

2. 32 weeks x £137.43 (net pay) = £4397.76

3. The tribunal will also consider future loss of wages by deciding how long it may take Miss Ryans to get another job. I am unaware of Miss Ryans’s current employment position but if she already has another job, she will not get this award.
4. The tribunal will also take into consideration Miss Ryans’s loss of employment rights as she will have to rebuild these with a future employer. The average figure awarded is around £250.
5. If the tribunal decides that because of her misconduct Miss Ryans was partly to blame for her dismissal, then her compensation will be reduced. This also applies if she has not made sufficient effort to gain further employment.

Total Award Calculations

Basic Award £600

Compensation £4397.76

Loss of Employment Rights £250

Total £5247.76

1. Obviously, this is roughly the maximum amount possible. It is unlikely that this will be awarded, not least because it is unlikely to take Miss Ryans 32 weeks to find alternative employment as a cleaner. She will be required to mitigate her loss by seeking and accepting reasonable offers of employment. Additionally, deductions are likely to be made to take into account the fact that she appears to be partly to blame for her dismissal. As a rough guide, she could expect to receive around £1500 to £2500 in compensation.

Avoidance of A Trial

1. Those instructing me have asked about the possibility of a trial being avoided. As an alternative to the Employment tribunal, alternative dispute resolution may be considered. The most common forms are arbitration, mediation or conciliation. Conciliation is often employed in cases like this and many cases of unfair dismissal are resolved without recourse to a tribunal.
2. The Advisory, Conciliation and Arbitration Service – ACAS will be able to assist and I suggest that they are contacted should the parties decide to try and resolve the dispute this way. Their conciliation service is confidential ensuring that the adverse publicity that is feared by the Respondent does not arise. I am obviously happy to advise further should the parties decide to go down this route.

Summary of Advice

The Respondent appears to have a good chance of relying on their defence against the claim of unfair dismissal. There is a potential problem in that the appeal meeting was not re-arranged when the Claimant was unable to attend. If the tribunal deems the dismissal was unfair, the Claimant is likely to receive between £1500 and £2500 in compensation but a maximum of £5247.76 is possible. If the parties do not wish to proceed to trial, the dispute may be resolved using an alternative method and conciliation is suggested.

Next Steps

I suggest the following be undertaken:

• Determine the details of any alternative employment gained by Miss Ryans.
• Consider the possibility of using alternative dispute resolution and gain the Claimant’s views on such.

I hope that this is of assistance and would be happy to advise further in due course. J Jones