Workers have the right to be accompanied by a work colleague or trade union representative of their choice, says Victoria Willson
An employment tribunal's judgment in the case of Evans v Open Sight reminds charities of an exception to the requirement that an employee must have at least 12 months' service to bring a claim of unfair dismissal.
Open Sight is the working name of the Hampshire Association for the Care of the Blind, a small charity providing grants, services and support to people with visual impairments. In September 2010 it employed Tracey Evans as a training coordinator. Her line manager, Elaine Bellamy, became concerned that Evans was the target of professional jealousy from the deputy chief executive, Tessa Barrett, who had opposed Evans's appointment.
In November 2010, Bellamy and the chief executive, Chris Hedges, were suspended after complaints from Barrett. They asked Evans to accompany and represent them at their disciplinary meetings, to which she agreed. Evans also agreed to accompany the finance manager, Evelyn Archenhold, at her grievance meeting about her complaints about Barrett.
In December 2010, about a week after Hedges' meeting (but before the other meetings), Barrett held a probationary review interview with Evans and subsequently dismissed her. The purported reason was she had failed to demonstrate her suitability for the role during her probationary period.
Evans brought a claim of unfair dismissal, saying the real reason was that she had agreed to act as a companion at her colleagues' disciplinary and grievance meetings. Employees do not need the usual 12 months' service for this type of claim.
The legal decision
The employment tribunal found that the principal reason for her dismissal was her acting as a representative for her colleagues and, accordingly, the dismissal was automatically unfair. Among the reasons cited by the tribunal were: the inconsistency between the reason given in the dismissal letter (capability) and by Barrett in evidence (primarily conduct); the fact that performance concerns had not been raised with Evans before; various concerns Barrett had documented regarding Evans acting as a companion and representative; and the focus on the companion/representative issue in discussions between Open Sight and its external HR advisers before the dismissal. The tribunal scheduled a further hearing to consider compensation.
Open Sight said that at that hearing, in January this year, Evans was awarded £6,258.80 (about 10 per cent of what she had claimed), after representations were made that she would have been made redundant anyway. The written judgment of this remedy hearing is not yet available.
Lessons for charities
Workers have the right, upon making a reasonable request, to be accompanied at a disciplinary or grievance hearing by a work colleague or trade union representative of their choice. The companion can address the hearing and confer with the worker, but cannot answer questions on their behalf. Charities must ensure they do not subject a worker to any detriment because they have exercised (or sought to exercise) that right or acted (or sought to act) as a companion. If so, this could lead to a claim, irrespective of the worker's length of service.
Charities should also be aware that if they dismiss an employee for poor performance, the reasons should be documented because this will be key evidence in cases where the reason is in dispute.
Victoria Willson is a partner at Levenes Employment, third sector specialists