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Case Study: Defending a Claim of Constructive Unfair Dismissal, Sex and Disability Discrimination

Summary

How Fiona Martin, expert Employment Law solicitor based in our Shoreham-by-Sea office, successfully defended a charity from claims of constructive unfair dismissal, sex discrimination, sexual harassment and disability discrimination.

The situation

Lemon Studio is an arts organisation run as a charity. They had numerous problems with their Finance Director, Amy.

She had advised that the company’s finances were so dire that they were possibly insolvent. In the preceding nine months, she had been off sick without submitting sick notes. She described herself as having “nervous problems and fibromyalgia”. The other two directors, Gary and Jared, had agreed that she did not have to come into the office as a reasonable adjustment and could work from home. However, it became clear that post was not being opened and dealt with and she failed to answer their urgent enquiries.

Gary and Jared asked for a meeting with Amy but she stated she was too ill. They came to an agreement that she would be furloughed while she served out her 3 months’ notice. Gary and Jared instructed a book keeper to look at their finances and found out that Amy had been grossly negligent. She had not been paying pension money or filing tax returns.

She had filed their company annual returns so late to Companies House that this resulted in large fines. She had also claimed a vast amount of unauthorised overtime of more than 30 hours a month which she could not have worked.

When they tried to talk to her about this, Amy sent them a letter complaining that she had been forced to resign. This worried Gary and Jared and they approached Fiona for legal advice.

What Martin Searle Solicitors did

Fiona Martin advised Gary and Jared that it looked like Amy was lining up a claim for unfair constructive dismissal. The best way to defend themselves was to bring to her attention the result of their investigations and to discipline her for gross misconduct and gross negligence. If they did not do this straight away, it would look very strange for them to raise this in defence to Amy’s allegations.

A letter inviting Amy to a disciplinary meeting was sent and Amy responded with a long letter raising new allegations including sex discrimination, sexual harassment and disability discrimination.

Christianne Silverwood assisted in her role as HR Consultant and she carried out investigations to establish whether Amy did have an illness which came under the definition of disability in the Equality Act. There was no evidence provided by Amy to show this was the case.

Amy’s first disciplinary was postponed as she said she was too ill to attend. The second meeting went ahead even though she did not turn up. Christianne chaired the disciplinary hearing and took notes.

Christianne held a long meeting with Jared to go through Amy’s written representations. Jared found she had been guilty of both gross negligence and gross misconduct and she was dismissed summarily without notice. The notes of this meeting and the outcome were communicated to Amy.

The result

Amy did not appeal nor did she make a claim in the Employment Tribunal.

The two directors were relieved that there was such a swift outcome as they still had to deal with Amy’s negligence and turn around the business financially.

For advice on defending claims of constructive unfair dismissal or challenging discrimination claims, contact our expert Employment Law Team on 01273 609911, or email info@ms-solicitors.co.uk.

Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UB
T: 01273 609 991 info@ms-solicitors.co.uk

Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.

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