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Thursday, December 5, 2019
A Colwyn Bay Hair Salon has failed in its defence of an unfair dismissal claim brought by an employee stylist due to the fact the employer was found to have pre-determined the outcome before fully investigating.
The hairdresser and beauty therapist, Ms Lovelady, was found to be unfairly dismissed by Mold tribunal. The employer, Daniel James Hair & Beauty failed to corroborate claims of inappropriate behaviour which had amounted to lude and derogatory chat with negative references to colleagues when chatting with customers. Instead, the employer was found to have simply determined the accusations to be accurate. The evidence amounted to comments of colleagues who accused Lovelady of bullying and offensive behaviour in addition to the comments to customers which they considered overtly sexual and inappropriate.
The failure of the employer to conduct a fair and thorough investigation immediately invalidated their defence. Therefore, the dismissal of Lovelady was unfair and compensation owed to her. In an interesting twist to the curling tongs of this tale, Lovelady’s payout was snipped due to the tribunal’s view that her behaviour had indeed warranted an investigation and left her likely to be fairly dismissed via a thorough and appropriate process of investigation.
Allegedly Lovelady’s attitude worsened when she returned from maternity leave in November 2018. The performance of the business, losing several customers, meant she could not earn additional wages above her set contracted hours.
A colleague of Lovelady advised Mrs Fowler, owner of the salon, that she had been pressed into reducing her time for the benefit of the claimant. As a consequence of this move by Lovelady, an atmosphere had been created within the business.
Whilst Fowler was on annual leave, early February 2019, she received WhatsApp messages relaying Lovelady’s negative attitude in front of clients. Fowler confirmed the matter was to be tackled.
Fowler advised Lovelady in a face to face meeting that she was suspended pending an investigation into allegations of gross misconduct. After four days a letter was sent to Lovelady setting out the findings which included six points referencing her behavioural issues and invited Lovelady in for a meeting.
Whilst Fowler had conducted several interviews with staff and clients about Lovelady’s conduct, she failed to record the details and as such, they lacked dates or sufficient evidence.
Lovelady denied misconduct however agreed that she was struggling to settle in. When she inquired as to what the next step would be, she was shocked to hear that dismissal was on the cards having not received prior warning of the severity of the situation.
Fowler issued a dismissal letter to Lovelady on 19 February. The appeal notice was submitted on 3 April 2019 but dismissed by the employer as it was 5 weeks after their meeting and presented no new evidence.
The critical point here is that regardless of the apparent weight of evidence presented to an employer they will always struggle to succeed in defending such claims of it’s proven process has not been followed. In this case, the employer failed to take statements, fully record findings and put a clear timeline on their actions.
Without due process, the evidence amounts to hearsay and opinion and cannot be taken as a reasonable attempt to ascertain the facts. The employer represented by Fowler was also solely engaged in the process and not sufficiently distanced to provide a subjective view. This latter point can be a tough one for small businesses with very few staff but in these circumstances, it’s even more important to show how the process can support that subjectivity and demonstrate a wholly reasonable approach.
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
