Terry Falcão: How to respond to an unfair dismissal claim

Cases of unfair dismissal can be complex and expensive, especially for smaller charities, so it's important to follow a number of steps

Terry Falcão
Terry Falcão

- This article has been updated; please see final paragraph

Last month, Barbara Duffy, the chief executive of Age UK Plymouth, lost her employment tribunal claim against the charity for unfair dismissal.

Duffy claimed that she had been unfairly dismissed after bringing a "protected disclosure", or whistleblowing, case against the charity for making a report to Age UK (the national body) because she had been excluded from the residential home and could not carry out health and safety audits.

But the employment tribunal ruled that the principal reason for her dismissal was two disastrous Quality Care Commission reports and the closure of the residential home, which had significant consequences for the charity. However, it did uphold Duffy’s claim that Age UK Plymouth had failed to pay her a week’s holiday.

Third Sector understands that Duffy has lodged an appeal against the unfair dismissal decision.  

Whistleblowing-related dismissals potentially carry unlimited damages and it is therefore crucial that trustees seek immediate legal advice. Trustees should also take the following steps when cases arise.

  • Check that (minuted) actions to be carried out by the chief executive are completed.
  • Keep in close contact with operational managers in respect of all the critical issues, ensuring that no single trustee is overburdened while individual actions and events are monitored and documented.
  • Meet staff on a periodic basis to discover any latent issues that might otherwise emerge only when it is too late. Staff might not be forthcoming, and genuine reassurance will need to be given to allay fears. This can elicit valuable evidence that might otherwise be unobtainable.
  • Demonstrate fairness by having an independent investigation and involve external panel members in disciplinary processes.
  • Ensure that the disciplinary panel members have the time and the ability to consider and absorb a vast amount of evidence and feel empowered in the appeal to consider matters afresh.
  • Ensure the charity’s governance permits it the flexibility to act decisively and in quick time. Painful procedures and requirements for a quorate committee can frustrate effective action.
  • Understand the disciplinary processes and, if a claim is received, what the claims are about and how they are proven in the tribunal, as well as the importance of each person’s evidence within the case.
  • Be prepared to have their honesty and integrity attacked and deal with threats to damage the reputation of the organisation (an easy hit since trustees are always sensitive about this)
  • Have nerves of steel in deciding whether to fight or to settle unworthy claims because of the threat of bad publicity.
  • Seize and retain evidence as early as possible and keep it in one place, including copies of contracts, emails, social media posts and statements. Evidence disappears very quickly and willing witnesses become unwilling overnight.

Charities with trustee boards that meet infrequently are an easy target for claims. In particular, cases of discrimination and whistleblowing need to be dealt with extremely carefully. Employment law is very procedure-driven, and fairness and reasonableness are key. When dealing with employee disputes, it is crucial to try to resolve matters in an open and fair manner from the outset. Managers need to be aware at all levels of their responsibilities in terms of valuing staff and seeking to deal with genuine concerns.

Terry Falcão is a partner at the legal practice Stephens Scown LLP

- The article was updated on 26 June 2018 to reflect that Duffy has lodged an appeal.

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