Employee unfairly sacked by "jealous" boss for accompanying colleagues to grievance hearings

Evans v Open Sight ET/3100599/11

Date added: 18 January 2012

automatic unfair dismissal | accompanying colleagues at formal hearings

As this case shows, employees with less than one year’s service can still claim unfair dismissal if the principal reason for their dismissal is that they accompanied, or sought to accompany, colleagues at disciplinary or grievance hearings. 

Mrs Evans started part-time employment with Open Sight, a charity, on 1 September 2010. During October, the chief executive, Mr Hedges, offered her full-time employment, which she began on 1 November 2010. 

Mrs Barrett, the deputy chief executive, had joined the charity on 4 May 2010. She attended Mrs Evans’ interview and opposed her appointment, believing that it was unnecessary to fill the vacant post. Her evidence was that she had been overruled by Mr Hedges. 

Mrs Evans shared an office with her manager, Mrs Bellamy, who had been instrumental in recruiting her. During the early period of Mrs Evans’ employment, Mrs Bellamy became concerned that Mrs Barrett displayed signs of “professional jealousy” against Mrs Evans, who was substantially better qualified than she was. Mrs Barrett told Mr Hedges that she thought that Mrs Evans would make a better deputy chief executive – indeed, in Mrs Evans’ interview, she had said that she aspired to Mrs Barrett’s position. 

On 4 November 2010, Mr Hedges was suspended based on complaints by Mrs Barrett. He asked Mrs Evans to accompany him at his disciplinary hearing on 1 December, which she did. At this hearing, Mrs Evans challenged the fact that Mrs Barrett was acting up in the role of chief executive, given that she was the instigator of disciplinary proceedings against Mr Hedges, and that he had made allegations of bullying against Mrs Barrett. 

On 8 November 2010, Mrs Bellamy was also suspended based on allegations made by Mrs Barrett. Mrs Bellamy asked Mrs Evans to accompany her at her disciplinary hearing on 16 December. In early December, Mrs Archenhold, the finance manager, asked Mrs Evans to accompany her at a formal grievance hearing regarding complaints about Mrs Barrett. In the event, Mrs Evans was dismissed before the hearings for Mrs Bellamy and Mrs Archenhold took place. 

Mrs Evans’ three-month probationary period expired on 30 November 2010, and Mrs Barrett, who was acting as her line manager during Mrs Bellamy's suspension, held a probationary review meeting with her on 9 December. At this point, no complaints about Mrs Evans’ performance had been made to or discussed with her. Before the review meeting, Mrs Barrett consulted the charity’s legal advisers, Peninsula. Her note of the discussion started with advice that Mrs Evans had “no statutory rights”, which the tribunal later inferred to mean that she did not have the one year’s qualifying service to claim “ordinary” unfair dismissal. The note said “don’t think it appropriate”, which Mrs Barrett later confirmed referred to Mrs Evans' acting as a companion for three colleagues. The note also referred to her “going behind [Mrs Barrett’s] back” to another manager, Mr Gaines, about being a representative, and to her taking time off to see one of the colleagues she was representing. It also confirmed that a business plan that Mrs Barrett had asked Mrs Evans to send to her did exist and had been sent to Mrs Bellamy and Mr Hedges. 

Mrs Barrett claimed in the tribunal that she made no decision on Mrs Evans’ employment on 9 December, and discussed her decision with Mr Gaines so that he could obtain the approval of the trustees. She decided to dismiss Mrs Evans, and stated in the dismissal letter that the reason was that Mrs Evans had not met the standards required in her post, and had failed to demonstrate her suitability for her role during her probationary period. Mrs Barrett’s notes for 10 December showed that she spoke to Mr Gaines and that he emailed the trustees to seek their approval for Mrs Evans’ dismissal; that she took advice from Peninsula to obtain its approval of the dismissal; and that both these actions were completed before she met with Mrs Evans to confirm her dismissal. She reported to Peninsula again after dismissing Mrs Evans. 

Although she did not have the required one year’s service to claim “ordinary” unfair dismissal, Mrs Evans claimed automatic unfair dismissal, arguing that the principal reason for her dismissal was that she had accompanied, or sought to accompany, colleagues at disciplinary and grievance hearings. The tribunal had to decide whether or not, on the balance of probabilities, this was what had happened. 

Mrs Barrett contended that she had significant concerns about Mrs Evans’ capability and performance, and issues of conduct that she viewed as insubordination and lack of respect to her. She felt that the “breakdown in trust was sufficient that [they] could not move forward”, and was the reason for dismissal. Part of her argument involved the refusal of Mrs Evans to provide her with the business plan, which she claimed amounted to a “refusal to obey a reasonable management instruction”, and indicated that the report did not exist (which contradicted her notes of the 9 December 2010 discussion with Peninsula). The tribunal preferred the evidence of Mrs Evans, Mr Hedges and Mrs Bellamy that Mrs Evans had produced the business plan. 

Mrs Barrett also complained that Mrs Evans had taken time off to prepare for the disciplinary hearings of Mr Hedges and Mrs Bellamy. She said that any preparation time had to be agreed with her, and that Mr Gaines had informed Mrs Evans of this. The tribunal found this allegation to be unfounded. Mr Gaines told the tribunal that, on 10 December, he had emailed the trustees to obtain their approval of Mrs Evans’ dismissal, but could not produce the email. 

In coming to its decision, the tribunal considered the following factors:

• The allegation that Mrs Evans was underperforming and lacked capability was inconsistent with the evidence of Mr Hedges and Mrs Bellamy, and her being placed on garden leave and paid in lieu of notice. 
• There was “not one shred of evidence” that performance issues were addressed by the charity prior to 9 December 2010. 
• The dismissal letter was “curiously” silent about the charity’s asserted reason for dismissal (a loss of trust and confidence due to Mrs Evans’ conduct). 
• Mrs Evans’ ambition and comments during her interview may well have led to a feeling of insecurity in Mrs Barrett, leading her to rid herself of a potential opponent when the opportunity arose. 
• Mrs Barrett did not like Mrs Evans’ direct approach to matters and her lack of deference towards her, which she perceived as insubordination. 
• There was bound to be conflict between Mrs Evans and Mrs Barrett after Mrs Evans made it known that she was accompanying three colleagues at formal hearings. 
• It was “telling” that the issue of whether or not it was appropriate for Mrs Evans to accompany her colleagues appeared at the start of Mrs Barrett’s notes of her discussion with Peninsula on 9 December 2010. 
• It was no coincidence, the tribunal felt, that Mrs Evans was dismissed shortly after having accompanied Mr Hedges at his hearing and given four-and-a-half hours of staff support the day before her probationary review meeting. 

The tribunal found it “neither credible nor plausible” that the charity would have been in such close contact with Peninsula if the reason, or principal reason, for Mrs Evans’ dismissal was capability or conduct. If that had been the case, the tribunal felt that there would likely have been only one consultation, in which Peninsula would have advised the charity that it could terminate Mrs Evans’ employment with impunity, as she could not claim “ordinary” unfair dismissal. The fact that the charity was in contact with its legal advisers several times in a few days was more consistent with the charity’s “nervousness” about dismissing Mrs Evans for a prohibited reason – because she was a companion to colleagues at hearings. 

The tribunal did not expect the charity to admit that it had dismissed Mrs Evans for a prohibited reason, and found that Mrs Barrett dismissed her partly because of the conflict between them (including Mrs Evans’ refusal to act in a deferential manner) and partly because of Mrs Evans’ challenge to her authority by acting as a companion to three colleagues. 

The tribunal held that the principal reason for dismissal was related to Mrs Evans' acting as a representative for colleagues: this issue was the focus of the discussions with Peninsula around the time of her dismissal. Mr Hedges’ hearing had taken place only a week previously, when Mrs Evans was performing well, and two further hearings were expected in the near future, with possible appeals following, all of which represented a challenge to Mrs Barrett’s authority. 

Additional resources

• Automatically unfair reasons for dismissal The XpertHR quick reference section sets out the automatically unfair reasons for dismissal. 
• How to handle an underperforming employee Most minor day-to-day performance problems can be dealt with informally and do not reoccur. Where issues persist or escalate, and more serious action is needed, it is vital for the employer to adopt the correct approach.