A Messy Business
One of our maintenance staff is mainly employed to keep the outside of our buildings tidy and in good order. This he does well despite the fact that the front is not enclosed so we get rubbish blowing off the street and the occasional dog ‘visiting’. Late yesterday the CEO parked in his reserved parking space and immediately trod in some fresh dog muck. He called for the maintenance person and blamed him for failing to clear it away. The maintenance person insisted that clearing dog muck was not his job, it never would be and the CEO should look more carefully where he is stepping. The CEO lost his temper and told him to “F… Off” as he never wanted to see him again (or words to that effect). The man went home and has just phoned to ask what he should do as he thinks he has been sacked. I had a word with the CEO who “never wants to see him again.”
You have two problems (apart from a CEO with a bad temper and big ego). The first being that it is going to be difficult to justify a fair dismissal on the basis of the facts presented. The second problem is the lack of a fair dismissal procedure. Most Tribunals which are lost by employers are for failing to follow a fair (or indeed any) procedure. The CEO has so far failed on several key aspects of a fair procedure i.e. inviting him to a proper meeting, holding a proper meeting held with an open mind with an opportunity to properly explain, a fair reason to justify the ultimate sanction of dismissal, and whether there are any mitigating circumstances for the maintenance guy’s actions.
So not only will you lose an Unfair Dismissal claim, you are also facing an uplift of 25% for failing to follow the ACAS Code of Practice. You also have a dilemma as to whether you treat him as being dismissed yesterday or deny that he was dismissed and hope that he does not claim constructive dismissal. He certainly could see the CEO’s language and general treatment of him as so bad as to allow him to leave claiming that the CEO’s conduct was such that he felt he had no choice but to leave, as he could no longer have any trust and confidence in his employer.
You should try to persuade the CEO that he should apologise for his hasty words. Rather he needs to participate as a witness in a disciplinary hearing held by another Manager in relation to the refusal to deal with dog muck. If the employee continues to refuse to fully carry out this job task, and presuming you can get the situation back on track from a procedural perspective, he should continue to be taken down the disciplinary route for failure to carry out a reasonable management task. If the CEO is refusing to have the employee back then you will have a potentially fair dismissal so it would be better to seek a compromise solution which gets you away from “another fine mess”.
The ideal solution would be to persuade the employee that he has not been dismissed and perhaps issue him with a minor disciplinary warning, agreement on ‘working practices’ and apologies all round. The other thing is to get to the CEO to recognise that in English Law there is no such thing as instant dismissal particularly one done in anger.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for proper advice.