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Instant Dismissal Following Argument Costs Employer Over £18,000

A tribunal found that a flight instructor had been unfairly dismissed following an argument with a director, after which the director said ‘you are not flying my aircraft – pack your things and leave’.

The tribunal found that in the circumstances the director’s words were a dismissal and that it was unfair – even though the employee had called the director a t**t and threatened to hit him.

The case of P Jones v Fly Light Air  highlights the importance of employers acting appropriately to avoid matters escalating and posing a risk to the organisation.

The Facts of the Case

The employee discovered that the aircraft he usually flew had not been serviced despite two colleagues having previously said they would do so. He booked an alternative aircraft to use that day but when he saw the director made a comment about the service which the director felt was sarcastic.

An argument then ensued during which the employee called the director a ‘t**t’. The director then followed the employee out of the hangar and went round in front of him to stop him moving saying ‘don’t call me t**t’ and threw a cup of tea at the employee which missed him. The employee then threatened to hit the director, but backed down when the director said ‘come on then if you want to hit me’. The director then said  ‘right, I don’t want you flying my aircraft.  Pack your stuff and leave.’

The employee, believing he had been dismissed, responded with ‘I’ll see you in court’ took his belongings and left.

Two days later, after seeking legal advice, the employer contacted the employee notifying him that a disciplinary investigation would take place and that he was suspended. The employee was invited to a disciplinary hearing to face allegations of serious insubordination and threatening to hit the director. The employee refused to attend the hearing, stating the process was a sham and that he had already been dismissed. The employer went ahead with the disciplinary hearing in the employee’s absence and dismissed him for gross misconduct. The employee complained to the employment tribunal that he had been unfairly dismissed.

The employment tribunal agreed. The judge found that:

  • Having looked at the argument and its aftermath, the employee had been dismissed by the director on the day of the argument. Whether the director had intended to dismiss him then or not, that is how a reasonable employee would have understood the position in the circumstances. It was too late to start a disciplinary process when the employer did, as the employee had already been dismissed.
  • Because there was no procedure followed for the dismissal, it was unfair. Even if a fair process had been followed it was held there was only a 25% chance that the employee would have been fairly dismissed. This was because the employee’s actions in part were a response to the director walking after him to continue the confrontation, threatening him and throwing a cup of tea at him. Furthermore, had the employer followed a fair procedure they would have had to take into account the employee’s mitigation including his length of service and clean disciplinary record.

The tribunal awarded the employee compensation of over £18,000 after taking into consideration the fact that he had significantly contributed to his own dismissal by acting the way he did. However, the award also included an uplift of 20% for the employer’s failure to follow the ACAS Code of Practice on Disciplinary and Grievances before dismissing the employee.

Advice

This case shows that no matter how inappropriate or frustrating an employee’s behaviour is, it’s important for members of the management team to keep calm when dealing with the situation and to deal with matters appropriately.

Remember:

  • In fitting circumstances employees can be suspended whilst a disciplinary matter is investigated.
  • Even if you think an employee may have committed an act of gross misconduct, a disciplinary procedure should still be followed if the employee has sufficient service to claim ordinary unfair dismissal.
  • When considering whether a dismissal is fair, a tribunal will reflect on all the facts of the case including any mitigation the employee has for their actions. If a manager acts badly towards an employee in a dispute such as this one, it can have a bearing on the fairness of the dismissal and any compensation awarded.
  • If comments are ever made to an employee that could be interpreted as being a dismissal, it’s important to act fast to try to minimise the risk if you did not intend to dismiss. This could involve taking steps such as immediately contacting the employee to make it clear you consider they remain employed.

You should always seek advice from Kingfisher Professional Services Ltd before taking any action in relation to a conduct issue, irrespective of the length of service of the employee involved. We can provide advice and  practical guidance based on the specific facts of your case.

If you have an employment law matter you would like assistance with, please do not hesitate to contact us as we are happy to help.