Don't sack staff by text message! (and other tips to avoid being taken to tribunal)

I find it fascinating to take a closer look at law cases which are covered heavily in the news to see what really went on.

A recent case that has been plastered across tabloids with iterations of the headline 'Barber who sacked employee for calling in sick ordered to pay her thousands'  is that of a barber who sacked a member of staff in a WhatsApp message after calling in sick. Here're the insights I uncovered from this case followed by my advice to avoid a similar scenario, and a hefty payout, in your organisation.

Background

Miss Thorley began working for Mr Christian Donnelly, trading as Acute Barbers, in 2018.

In the last week of October 2021, Mr Donnelly messaged Miss Thorley, requesting that she didn’t let him down on Monday as he was aware she was having a Halloween party that weekend.

When the following Monday came, you guessed it, Miss Thorley texted Mr Donnelly stating that she could not attend work because her stomach was ‘killing’ her.

Mr Donnelly dismissed Miss Thorley via WhatsApp, alleging that she had repeatedly phoned in sick on Mondays “because you’d [Miss Thorley] had a good weekend”.

Despite Miss Thorley’s warning of pursuing a claim, Mr Donnelly responded, amongst other things, that she could “crack on with all that legal sh*t”.

Miss Thorley duly obliged and pursued a number of claims against Mr Donnelly.

Outcome

Unsurprisingly, the Tribunal found against Mr Donnelly, on the basis that he had not followed a fair process and did not have any evidence to back up his assertions.

This is one of those claims that, when reported by the media, doesn’t really dig into the fascinating findings.

The figure you will see reported was that Mr Donnelly was required to pay ‘over £3,000’ for this mistake.

In part, this is true, but it was not just all because of this decision.

The total sum Mr Donnelly was required to pay was £3,435.59 but it was made up of:-

• £2,479.99 for unfair dismissal made up of:-
• £935.55 for the basic award; and
• £1,544.44 for the compensatory award (which consisted of £935.55 for loss of earnings, £300 for the loss of the statutory right and an uplift of 25% for failure to follow the ACAS Code on disciplinary and grievances.
• £623.70 for failure to provide a section 1 statement, no contract issued.
• £331.90 for unauthorised deduction for failure to pay the national minimum wage.

One of the other claims pursued by Miss Thorley was that she had been discriminated against, i.e. her dismissal, which arose from her disability. Whilst the Tribunal found that her menorrhagia (heavy periods) was a disability, it did not amount to a disability for the purposes of the Equality Act 2010 and so this claim was unsuccessful.

Key takeaways for HR managers and Managers frustrated and keen to act

It can be extremely frustrating when your team or managers are heavily reliant on an individual who then appears to have a pattern of such dubious absences.

However, that is no excuse for a lack of process. Failing to get the basics right, like not issuing terms, not following the ACAS code etc just writes even the most unworthy employee a cheque!

The main points to take away from this matter are:-

1. Keep records

   One of the main contentions in this claim was that Mr Donnelly did not have any written records to demonstrate Miss Thorley’s absence, despite alleging that in her first year, she had taken more time off than all of her colleagues combined!
   
   

2. When someone is off, always find out why

   Whilst Mr Donnelly has had numerous claims substantiated against him, he has been quite lucky to avoid the discrimination claim which might have been entirely mitigated, had he investigated why Miss Thorley was repeatedly off work.
   
   

3. Follow a fair process
   

   The majority of the compensation awarded in this claim, and indeed any unfair dismissal claim, was made up of Miss Thorley’s compensatory award (the loss of her wage). However, it was a ‘double whammy’ (technical phrase) because this got uplifted, at the Tribunal’s discretion, because of Mr Donnelly’s failure to follow the ACAS code.
   
   

4. Do not sack people via WhatsApp Or Text Message
   

   As tempting as it might be, regardless of how much you think they deserve it or as angry as you might be at the time, do not sack a member of staff in a text message.
   
   

5. Ensure you provide a section 1 statement
   

   This can be incorporated into your contract of employment.  If you do not give this out on day one of employment, the individual can pursue another 2 or 4 weeks' pay if they bring certain claims, like unfair dismissal.
   
   

6. Do not invite your workforce to bring claims
   

   Don’t get me wrong, I’ve heard much worse said about the law and I am sure that we have all met quite a few bluffers in our time. But if I can give you one piece of advice (for free so put your money away), never invite someone to pursue a claim against you because they will and, as we have seen in this case, you probably will regret it.

For further assistance with any of the information contained within this article, please do not hesitate to contact the Bridge Employment Law team on 01904 949008, email us at enquires@bridgeehr.co.uk.