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Be careful of making a dismissal in heat of the moment!
A recent case, Townsend v Commercial Storage Limited, where an employee was held to have been unfairly dismissed during an argument, acts as a timely reminder to avoid being drawn in to arguments and to take care with what you say.
Here the employee, a driver for a small family business, got into an argument with the owner of the business who lost his patience and told the employee to “get out of the yard and do not bother coming back on Monday.”
The argument arose after the employee was called in to work, whilst he should have been on annual leave, to set up a new truck that he was taking out. The employee was naturally unhappy with this and hence the ill feeling that built up between the two individuals.
The Employee took the instruction as a dismissal and left the work place as instructed. The employer failed to make any contact in the subsequent week and a P45 was sent a few weeks later.
A claim for unfair dismissal was submitted. The Employer argued that the employee had resigned but this was rejected by the employment tribunal. They felt it was clear from the facts that the employee had been dismissed because the employer made no effort to ascertain his whereabouts the following or subsequent weeks, and the Employee had been telling people he had been sacked. With no procedure followed, the dismissal was held to be unfair, both procedurally and substantively.
It would be easy to assume that such a situation is unlikely to occur in your organisation, but the reality is that we just don’t know, particularly when we have other staff who may have delegated authority for dismissals. Employers should train all managers with authority to dismiss, not to make decisions or comments in the heat of the moment which could result in an employee either being dismissed or constructively dismissed.
Managers should be trained to walk away and deal with the situation in a professional manner once the other individual has calmed down. Employers should also have in place a system whereby if a person leaves site in the heat of the moment (whether they think the have been dismissed or we believe they are resigning), contact with the employee should be made immediately after to clarify the position and to invite the employee into a meeting to discuss making it clear that we view employment as continuing.
Oliver McCann, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor
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