In the Tribunal - Asserting a Statutory Right - uneartHReality
What was the case?

A mortgage advisor worked for the company from 19 June 2017 to 4 June 2019.  She had a unique role where she would travel to sites and meet clients viewing show homes.  She worked long hours, often 12 hours a day with no break and weekends.

She was entitled to commission as well as a basic salary and was one of the company’s top performers.  During the beginning of 2019 she had better figures for application numbers than her colleagues and was given champagne as a reward for having one of the highest conversion rates in the company.

In May 2019, the claimant emailed the payroll team to query why her commission was not reflected in her latest payslip.  She didn’t receive a reply.  She was then absent from 16-30 May and had a meeting on her return with her former manager.  She wanted to discuss several issues, including working hours and commission.  She informed her former manager that her working hours were stressing her out and making her ill.  Her former manager agreed to raise this with the Directors.

The following day she was due to attend an off-site monthly meeting with her colleagues but was told to attend the office instead.  A Director was there to meet her and dismissed her with no explanation.  The Tribunal was informed it was because her performance was ‘not up to par’ with the standards and expectations of the business. 

On 2 July 2019, she raised a grievance having received no further communication and she stated that she had received no reasoning for her dismissal, no evidence supporting any reasoning, warning, time to prepare or an opportunity to be accompanied at the meeting.  She argued a reasonable dismissal procedure was not followed.

On 4 July 2019, her grievance was dismissed, and the company claimed she accepted the allegations and showed a lack of interest.  The company also expressed surprise at her complaint as no appeal had been received. 

The Director who dismissed the claimant said he was unaware of the previous conversations with the former manager, but the tribunal found the former manager had text the Director saying, ‘she was always moaning’.

What were the tribunal’s findings?

The Tribunal ruled the claimant was unfairly dismissed, was wrongfully dismissed and had an unauthorised deduction of wages.  The Judge said it was clear that the claimant had asserted a number of statutory rights in the meeting to her former manager and that this was clear even if he felt she was ‘moaning’.  The Judge felt this was the principal reason for dismissal.

What does this mean for employers?
  • Be aware of what a statutory right is. This includes (but is not limited to) asserting rights under the Working Time Regulations (e.g., right to statutory holiday, working hours or rest breaks), raising a health and safety concern, right to national minimum wage, making a protected disclosure (whistleblowing) and asserting that an unlawful deduction from pay has been made.
  • Consider whether an employee is asserting a statutory right before taking any action. If they are any dismissal for that reason will be unfair regardless of length of service.  In the Tribunal case the claimant had just less than 2 years’ service which became irrelevant. 
  • Do not try and make the reason for dismissal something else as it will more than likely be discovered if you do not have the evidence to back it up.