Unfair dismissal advice

ghutchison14078 · 5 May 2020 at 12:50

Hi folks/ collective hive-mind

I'm looking for some unfair dismissal advice on behalf of my mother-in-law, here is the broad outline of the situation (I should mention this is in Scotland, if that has any bearing)

Mother-in-law worked in a local Asda pharmacy for several years as a pharmacy dispenser, approx. 8 months ago she left to take a similar position at another pharmacy closer to her home. Same job, different company.

When she began this new job, she wasn’t given any kind of contract to sign or given a staff handbook. All she was asked to put on paper was her name/address etc and bank details for salary payment. Her hours and pay were agreed in a verbal agreement at the end of her interview when she was offered the position.

Whilst working for this new employer she has also been doing some seasonal overtime at her old employer (Asda pharmacy), however her current employer/line manager has known about this for at least 4/5 months as she informed them before doing this, and has never brought it up.

She was pulled into a meeting this morning (without any notice, or asked if she wanted to be accompanied by a third party rep) by her line manager who is the main pharmacist at her store and was told she was being fired based on these two reasons:

1) She is too slow at operating their computer systems (but has never been given any official structured training, or given opportunity to be put on an improvement action plan of any kind)
2) That she has been working a second job, for another company that they consider to be ‘competition’

Can anyone provide any links or reference which (any) laws she may be protected by to take this employer to industrial tribunal over unfair dismissal.
On the moral side of the argument; they have just made a frontline keyworker unemployed during a pandemic.

Thanks in advance for any advice folks.

balky12 · 5 May 2020 at 12:52

As a disclaimer I am not giving any formal advice.... however I am led to believe that she has very limited protection having only been with her new employers 8 months.

Citizens Advice says;

'Your employer is allowed to dismiss people, but if they do it unfairly you can challenge your dismissal.

To find out if your dismissal is unfair, you’ll need to check:

what your ‘employment status’ is - your rights depend on whether you’re an employee or not
how long you’ve worked for your employer - you can usually only challenge a dismissal if you've worked there 2 years or more
whether the law says the reason for your dismissal is unfair

You'll need to check quickly - you’ve got 3 months less a day from your last day of employment to start taking action for an unfair dismissal.'

'https://www.citizensadvice.org.uk/work/leaving-a-job/dismissal/check-if-your-dismissal-is-fair/'

ghutchison14078 · 5 May 2020 at 13:18

After some reading it would seem that the term "wrongful dismissal" is more pertinent to my mother-on-laws situation, rather than unfair dismissal.

The complete absence of any contract mudies the waters though.

Bounce · 7 May 2020 at 10:38

ghutchison14078 said:
Hi folks/ collective hive-mind

I'm looking for some unfair dismissal advice on behalf of my mother-in-law, here is the broad outline of the situation (I should mention this is in Scotland, if that has any bearing)

Mother-in-law worked in a local Asda pharmacy for several years as a pharmacy dispenser, approx. 8 months ago she left to take a similar position at another pharmacy closer to her home. Same job, different company.

When she began this new job, she wasn’t given any kind of contract to sign or given a staff handbook. All she was asked to put on paper was her name/address etc and bank details for salary payment. Her hours and pay were agreed in a verbal agreement at the end of her interview when she was offered the position.

Whilst working for this new employer she has also been doing some seasonal overtime at her old employer (Asda pharmacy), however her current employer/line manager has known about this for at least 4/5 months as she informed them before doing this, and has never brought it up.

She was pulled into a meeting this morning (without any notice, or asked if she wanted to be accompanied by a third party rep) by her line manager who is the main pharmacist at her store and was told she was being fired based on these two reasons:

1) She is too slow at operating their computer systems (but has never been given any official structured training, or given opportunity to be put on an improvement action plan of any kind)
2) That she has been working a second job, for another company that they consider to be ‘competition’

Can anyone provide any links or reference which (any) laws she may be protected by to take this employer to industrial tribunal over unfair dismissal.
On the moral side of the argument; they have just made a frontline keyworker unemployed during a pandemic.

Thanks in advance for any advice folks.

I have studied employment law, so will give you a bit of advice...

Well first of all there is no legal obligation from an employer to provide a written contract, so all of the employee's rights will be the minimum statutory requirements and the agreements will be verbally. (E.g holiday entitlement, sick pay, maximum hours worked, notice entitlement etc).

You can be 'fired' for conduct or performance issues, however it must be done fairly. In order for it to be done fairly, an investigation would have to be done by the Line Manager, the Line Manager would then need to arrange a meeting to discuss the conduct or performance issue and give them a chance to improve. (During this meeting your Mother in law should be given a chance to explain the conduct or performance issue, E.g Further training required). The Line Manager should then set a timeline of when the performance must be improved by and provide the necessary training.Should performance not improve then the employee could then be dismissed or if it has been improved then there would be no further action required.

As for the second job, well there is no written contract and her line manager knew about the job, so I cant see how they can dismiss your mother in law on fair grounds in that respect. Did your mother in law get anything in writing to say she could do the second job at Asda?

Your mother in law may have a case on unfair dismissal, however I wouldn't expect a big compensation, with 8 months service. To do a claim your mother in law needs to contact ACAS : https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal

Goodluck!

OldKitMan · 7 May 2020 at 13:15

Has she been fired for Gross Misconduct?
Is she working a notice period?
Paid in Lieu of Notice?

There could be a case for wrongful dismissal but that would be determined by the company policy around performance and capability.

Unfair dismissal - difficult
wrongful dismissal - definitely a possibility.

Surveyor · 7 May 2020 at 14:53

Bounce said:
I have studied employment law, so will give you a bit of advice...

Well first of all there is no legal obligation from an employer to provide a written contract, so all of the employee's rights will be the minimum statutory requirements and the agreements will be verbally. (E.g holiday entitlement, sick pay, maximum hours worked, notice entitlement etc).

You can be 'fired' for conduct or performance issues, however it must be done fairly. In order for it to be done fairly, an investigation would have to be done by the Line Manager, the Line Manager would then need to arrange a meeting to discuss the conduct or performance issue and give them a chance to improve. (During this meeting your Mother in law should be given a chance to explain the conduct or performance issue, E.g Further training required). The Line Manager should then set a timeline of when the performance must be improved by and provide the necessary training.Should performance not improve then the employee could then be dismissed or if it has been improved then there would be no further action required.

As for the second job, well there is no written contract and her line manager knew about the job, so I cant see how they can dismiss your mother in law on fair grounds in that respect. Did your mother in law get anything in writing to say she could do the second job at Asda?

Your mother in law may have a case on unfair dismissal, however I wouldn't expect a big compensation, with 8 months service. To do a claim your mother in law needs to contact ACAS : https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal

Goodluck!

As you've studied employment law how does the OP's mother-in-law get around the qualifying period for unfair dismissal?

Bounce · 7 May 2020 at 15:10

Surveyor said:
As you've studied employment law how does the OP's mother-in-law get around the qualifying period for unfair dismissal?

As mentioned by @balky12 claims are time limited.

Quote from ACAS 'A claim to an employment tribunal must usually be made within 3 months less 1 day. This is known as the 'limitation date'.

The other thing that I didn't mention was that when an industry/workplace doesn't have a written contract in place, many industries rely upon something which is called 'custom and practice'. This basically means that over time unwritten policies, procedures and cultures become the 'norm'. If the employer can somehow prove that working for another competitor is not the 'norm' in the industry then they potentially would have fair grounds on dismissal. However being as the line manager already knew about the second job it doesn't make me think that this would 'fair' and the 'norm'.

It would be interesting if the OP could provide more information on the business, this to me sounds like a small business, as most medium size to large businesses would issue a written contract by a HR professional.

Maybe turnover has dropped, and they are looking to reduce payroll costs? and using this as a excuse?, in which case they should be doing redundancy.

Surveyor · 7 May 2020 at 18:24

Bounce said:
As mentioned by @balky12 claims are time limited.

Quote from ACAS 'A claim to an employment tribunal must usually be made within 3 months less 1 day. This is known as the 'limitation date'.

The other thing that I didn't mention was that when an industry/workplace doesn't have a written contract in place, many industries rely upon something which is called 'custom and practice'. This basically means that over time unwritten policies, procedures and cultures become the 'norm'. If the employer can somehow prove that working for another competitor is not the 'norm' in the industry then they potentially would have fair grounds on dismissal. However being as the line manager already knew about the second job it doesn't make me think that this would 'fair' and the 'norm'.

It would be interesting if the OP could provide more information on the business, this to me sounds like a small business, as most medium size to large businesses would issue a written contract by a HR professional.

Maybe turnover has dropped, and they are looking to reduce payroll costs? and using this as a excuse?, in which case they should be doing redundancy.

Thanks for the reply but I was referring to the requirement to have been continuously employed for a period of at least two years to bring an unfair dismissal claim.

There are few exceptions to the two year rule but none seem to apply:

if the dismissal was connected with a health and safety reason that you became aware of;
where you have asserted a statutory employment right (such as maternity or paternity leave);
whistleblowing;
participating in trade union activities;
where you are dismissed by reason of a business transfer, as you are protected under the TUPE regulations (but you still need a qualifying period of service for TUPE claims).

ghutchison14078 · 11 May 2020 at 17:48

Thanks for advice guys, mother-in-law is now in contact with ACAS.

The proper dismissal procedure outlined by @Bounce was not adhered to at all; mother-in-law went into work as normal thinking everything was fine, then manager pulled her into office literally as she as putting her coat on to leave after her shift and basically told her not to come back as she as being fired due to her seasonal hours at the Asda pharmacy.

It was the area manager that interviewed and hired her, and she discussed with him (at the interview) that she intended to continue to pickup extra hours at the Asda pharmacy outside of her hours of obligation to the new job; he was fine with it.

At the very least I hope she gets a week (or two weeks) worth of pay that she should've gotten if they had followed the correct suspension and investigation before moving to dismissal.

Energize · 13 May 2020 at 17:01

With no written contract she's basically entitled to the statutory 1 weeks notice pay + accrued holiday pay.