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Joe Meek on Speed (a Rain song you won’t find on Spotify, but perhaps available for at least £15k)

Published by Employment Law Clinic in the blog Employment Law Clinic's blog. Views: 381

For staff with less than 2 years’ service, it’s a common assumption that they can be dismissed with nothing more than contractual notice – or a week, if nothing more is in writing… and we’re all too happy to express that view when an employer seeks views on these matters.

So say for arguments sake that an employer wanted to dismiss after ~11 weeks service. Easy it seems, dismiss (with notice or PILON), and move on.

Of course there is the minor issue of an unfair dismissal where no minimum service is required – things like trade union membership, health & safety, discrimination. These don’t prevent a fair dismissal, but they would if the grounds for dismissal are for one of the many reasons automatically unfair reasons.

It is the minor issue of discrimination – or at least that is what a claim has been brought under – in the case of Kibirango v Barclays Bank plc. This minor complication of defending a tribunal with less than two years’ service shouldn’t greatly complicate a case, the bank no doubt professional and able to show that they had valid reasons for dismissal (I’m not being bias towards the bank, but at least that’s the indication to date).

… and perhaps they will eventually show that they had valid reasons for dismissal, nothing to do with race discrimination.

But even without having got to the stage where they present their defence to the case (well they have, but that judgment got set aside on appeal), the case has already cost Barclays in excess of £15,000 – after they thought they won, and had costs in the sum of £15k awarded to them!

And the saddest thing for the defendant (the respondent to give them their proper title in employment tribunal proceedings) is that it wasn’t anything they could have controlled that meant their successful defence of the claim was set aside on appeal; they didn’t argue the defence on a flawed technicality that passed the tribunal’s scrutiny, or try to discredit the claimant’s argument in a manner that led the tribunal to misapply the law. To the contrary, the blame lies with the Employment Judge alone, because they didn’t give reasons why the tribunal favoured some witness evidence supporting Barclays defence over the claimant’s version of events around the time of the dismissal – the reasons weren’t what is known as “Meek compliant”.

We don’t know the reasons the employment tribunal favoured the evidence from the Barclays manager that made the dismissal, but this is not uncommon – for a tribunal to favour one sides testimony over another’s. In fairness, it’s often necessary when two conflicting versions of events are given in evidence. It could be that Mr Kibirango was an evasive witness, uncertain in his recollections, or perhaps his evidence wasn’t consistent. Or maybe it was none of those things, both witnesses were accepted as being as truthful as possible as far as they recalled events, and the tribunal simply determined on balance that with documents prepared at the time of dismissal that supported what Barclays said happened when, that the tribunal had no preference between the witnesses, but leant towards Barclays due to the supporting written evidence. But because the tribunal omitted in its judgment to explain why, Barclays has already incurred costs of at least £15,000, and for that has made virtually no progress in defending a dismissal of an employee that worked for them for about 11 weeks. A very expensive lesson to learn, with nothing even established that Barclays were in any way at fault*.

Just something else to consider when dismissing staff with less than two years’ service.

To be fair, in practice it’s not all bad for most employers, as this case is an exception rather than the norm: for those of us that have to sit through them, tribunals giving their judgments can actually bore us to tears while ensuring they are Meek compliant, often answering things like Burchell and Iceland Foods Ltd (two important cases for disciplinary or capability dismissals), even when these cases are never mentioned in any closing arguments, and so well known to anyone that would take an interest in these matters. Alas, they have to just to be Meek compliant, and some of us can read between the lines so far in advance of the fateful words that “the claims fail” (this can be 45 minutes or more, on a simple case that's only lasted a few hours!), I will invariably pass notes to my clients that “we’ve won”, and “don’t wait for me, just hurry to the bar and have a large G&T waiting for me”!

Justice being done, but also being seen to be done with a comprehensive explanation of why – even if that cost £15,000 for a minor oversight in this case.

*It could be argued that Barclays, the successful party, could have applied for the judgment to be reviewed, expanded, to ensure this was Meek compliant, but as well as telegraphing a potential line of appeal to the claimant, it’s not really something I believe advocates really consider when a judgment is handed down – we just don’t think about such minutiae when considering whether the judgment is a sound one.

**”Joe Meek On Speed” was a song recorded by Rain, a North London band, in the early 90s if I recall correctly. Limited CDs pressed, and never released wider, and I don't believe ever reached Spotify.
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