Under the various employment law changes that took effect on 6 April 2012, the qualifying period required to bring a claim of unfair dismissal or request a written statement of reasons for dismissal is increased to two years. The increased period applies only to those who start a new job on or after 6 April 2012.
It may be tempting to think that no useful purpose is served by setting out the reasons for dismissal in writing where the employee has only had a short period of employment. A recent case involving an employee who was dismissed after less than four months’ employment illustrated what a serious mistake this can be.
In a letter sent to the employee immediately after she was dismissed, the employer said “I am sorry it had to come to this and that – possibly quite understandably – you hold me in such poor regard”.
The letter told the employee what pay in lieu of notice she would receive and what arrangements were to be made for the collection of company property – and that was all. The employee claimed that the dismissal itself and certain events leading up to it constituted direct discrimination on grounds of sex. The employer tried to argue that the employee’s performance had been unsatisfactory in several respects and that this was the sole reason for dismissal.
One of several difficulties for the employer was that the letter confirming dismissal made no reference to unsatisfactory performance. A letter outlining allegations of sex discrimination was sent to the employer some 4 weeks after the dismissal. The employer’s reply to that letter, sent about one month later, was the first occasion on which allegations of poor performance were made.
In the two key incidents which immediately preceded the dismissal the employer, by email, had called upon the employee to apologise to two male colleagues without attempting to ask the employee for her account of what had occurred before deciding who, if anyone, was at fault. The second of the requests for an apology was expressed in particularly offensive and upsetting terms. The employee argued that these requests and the dismissal (which arose directly out of the employee’s reaction to the second request for an apology) were acts of sex discrimination. The Tribunal agreed. It rejected the employer’s claim that the employee’s alleged unsatisfactory performance was the reason for the treatment that she received and for the dismissal.
The employee was awarded compensation of over £26,000, including £15,000 for injury to feelings. It was never going to be easy for the employer to explain away or excuse its conduct in unjustifiably calling upon the employee to apologise to the two male employees. The employer, however, might have had some prospect of defeating the claim that the dismissal was an act of sex discrimination if it had set out the relevant facts and its reasons in the dismissal letter. The employer had only itself to blame for this very expensive exit bill from this employee.