Data Access Request

We were recently recruiting and a rejected job applicant has demanded access to the interview notes we made about him. I told him that they are our notes and they have no right to this information. He interviewed very badly and our notes reflect this!

Peter replies

Under the subject access provisions of the Data Protection Act 1998, job applicants will, in most cases, be entitled upon written request to access all information recorded about them personally, whether held in a manual file or on computer, if it forms part of a “relevant filing system”. This means that the system must amount to more than a bundle of interview notes about all interviewees filed in no particular order. We suggest that to refuse to comply with the request in such circumstances could be contrary to the spirit of the law, particularly as it was the Act which extended the data protection regime to include manual, as well as computerised data.

Furthermore it suggests that you have something to hide, which might be some form of discrimination. A subject access request is a convenient method whereby an unsuccessful job applicant can obtain information about the reasons for his rejection to found a possible discrimination claim. Keeping interview notes can help a business to protect itself from potential claims, such as those for sex or race discrimination.

Good practice is to retain the official interview record with a written note of the reason(s) why the person was not the most suitable candidate for the job in question, and to destroy any individual handwritten notes.
The current Act provides that a request must be in writing and an employer may charge a fee of up to £10 for dealing with the request. If the employer has not received the request in writing, or the fee, or any additional information, then it is not obliged to comply with the request. However, an employer should act promptly in following up an incomplete request, as any deliberate delay by the employer will not be viewed favourably by the Information Commissioner or by a court/tribunal). Once the employer has the written request and received the fee and any necessary further information, it should comply with the request promptly and in any event within 40 days of receiving the completed request. This will change on 25th May when the response will have to be within 30 days and no fee will be chargeable.

Knowing that a job applicant could make a subject access request at any time, here are some guidelines to help reduce the risk that subject access requests may expose you to potential claims.

Employers should therefore:

  • Decide how interview notes will be stored. If they will be held on computer or form part of a relevant filing system,
  • Make interviewers aware that interviewees will have a right to request access to their interview notes so they should only write down factual observations relevant to the interview process.
  • Keep notes during the recruitment process (e.g. during interviews) but be aware that these notes may constitute personal data and would be disclosable to an applicant as part of a subject access request so they should avoid writing comments that could be deemed discriminatory or inappropriate e.g. looked pregnant, came across as a fat lazy slob etc.
  • Keep recruitment records for no longer than 6 months after the recruitment exercise where possible. The statutory period during which an unsuccessful applicant may bring a discrimination claim arising from the recruitment process is 3 months but this may be extended in exceptional circumstances.

You are going to have to provide the notes and will have to think whether you apologise for or just explain the harsh comments about his performance.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

End of Fixed Term Contract

We have recently let go a fixed term contract person and she is now claiming unfair dismissal. She had been with us for three years and a permanent vacancy arose which we have given to an internal candidate who was better qualified and performed better at interview. We talked immediately afterwards with her about another position, however because it was not quite as senior her role and it became a bit acrimonious. We did ensure that her contract was properly terminated when it came to the non-renewal time. She was given notice that her fixed term contract would not be extended. She is claiming that we should have appointed her to the permanent role and tried harder to find her another job, as some vacancies arose in her remaining period of employment. She has also blamed us for not giving her a right of appeal.

Peter replies

The expiry of a fixed-term contract constitutes a dismissal of the employee. You should therefore be mindful to dismiss the employee fairly, where they have sufficient continuity of service to bring an unfair dismissal claim, the same as with a permanent employee.

When a fixed term contract ends on the agreed end date; employers do normally not need to give notice. If the employment is beyond two years service, the employee will be entitled to the same redundancy rights as a permanent employee and a redundancy payment.

If the work ends before the agreed end date and the contract allows the employer to be dismissed, then the employer should give the appropriate notice period. An employer can be in breach of contract if they wish to end the contract and there is no provision to do so in the contract of employment.

Just because you are complying with the Fixed-term Employees Regulations does not mean you will have acted fairly when a decision is made not to renew a fixed-term contract. The law on unfair dismissal applies to dismissals which arise from non-renewal of a fixed-term contract. The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in the law on unfair dismissal. Dismissals by non-renewal of a fixed-term contract will often be potentially fair for “some other substantial reason” or depending on the facts, have some features in common with a redundancy dismissal.

The Regulations enact an anti-discrimination regime whereby, broadly, unless there is objective justification, means they must not be less favourably treated compared with staff not employed on fixed-term contracts.

The effect of the law is that possible alternatives to dismissal will need to be discussed as a matter of fairness, where such alternatives are or may be available.

The Regulations include an obligation on the employer to give the employee opportunities for alternative employment, in the sense that the employer is required to notify the employee of all available vacancies for substantive posts. Specifically the legislation refers to “the opportunity [of the fixed-term employee] to secure any permanent position in the establishment”.

Whilst most non-renewals of fixed-term contracts will fall under the “some other substantial reason” category, as being a potentially fair reason for dismissal, this is not automatically the case.


  • You therefore need to arrange a full thorough appeal as quickly as possible.
  • Review your manpower requirements to establish whether suitable alternative employment can be found.
  • If it cannot, then be prepared to show what you have done to reach that conclusion.
  • Be prepared to settle rather than go to Tribunal.
  • Learn from the experience and do not repeat.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Complaint against ‘Tactile’ Boss

One of our female employees has complained about her ‘very tactile’ boss.

Whilst he has not touched her in a sexual way he does make ‘unnecessary’ contact and he is verbally suggestive in a flirty sort of way, but she now says she feels uncomfortable about it. We think that she is just over-reacting and we would not want to upset him as he is a very good performer, who makes a lot of money for the organisation. Is she not being unduly sensitive to him as there does not seem to be any harm to it?

Peter replies:

You are missing the point. Harvey Weinstein made a lot of money for the company until the Company ditched him because he became a serious liability. Much sexual harassment is about power rather than just being ‘red-blooded’. Powerful people are more likely to abuse their power, not least because they suspect they will be backed in the event of a complaint. The fact that the ‘victims’ know this, makes it much less likely that they will report it, because they doubt that they will be believed or supported by their employer.

The first limb of the definition of sexual harassment under the Equality Act 2010 is:

  • unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

There is a second limb which is designed to protect further against the use of power to harass:

  • that because of a person’s rejection of harassment, they are subject to retaliation or victimisation.

Sexual harassment has never been acceptable but in many cases a blind eye by senior management has tacitly permitted such behaviour to happen, without actively supporting those employees who have raised concerns, rather like this case. What is changing now is that more people are willing to speak up. The sheer volume of people speaking out about the problem means that a new zero-tolerance attitude towards sexual harassment is emerging. Only by taking action can we start to end a problem that has been allowed to fester in silence for far too long.

You need to respond or risk the legal and PR consequences of continuing to accept the unacceptable. You should start by finding out what the employee wants. If she just wants it to stop, then a strong quiet word of reprimand may do the trick. If she wants something done formally, then the complaint should be investigated promptly and in a professional manner. This may mean either suspending him from work or moving him temporarily to another site where he cannot interfere with the investigation. If the allegation holds up, and it is likely that others will come forward to corroborate the allegations or similar past incidents, then disciplinary action should follow.

As soon as the issue is dealt with you should:

  1. develop a comprehensive policy that acknowledges senior management’s commitment to tackling and eradicating sexual harassment and indeed all forms of discrimination.
  2. ensure training is provided for managers before educating everyone in the organisation that the policy applies to all, whether they are on or off the premises (which includes office parties), as well as to any employees or third parties who visit the premises.
  3. Keep records of everyone that has attended such dignity at work training, this could be a key mitigation should your organisation later be embroiled in a discrimination case.
  4. Repeat the training from time to time so that all new employees are covered as well and if necessary keep reinforcing the message with further refresher training.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Self Employed Porter

I have been made aware that we have a kitchen porter that invoices the company and has been doing so for the last few months. The Head Chef has agreed with this arrangement. He says it makes no difference that he is relatively low-skilled; it is common in the industry.

Peter replies:

There are a number of tests that collectively indicate if someone is self employed or an employee. These include the ability to substitute, control over tasks, use of equipment and materials etc., supervision, other jobs, regularity etc.

In principle it “could” be legal to engage an individual on a self employed basis to provide low level catering or waiting activities if they have their own business hiring themselves or others, out for these tasks but it’s highly unlikely in reality.

HMRC produce a very simple checklist that guides you through this, albeit an Employment Tribunal could easily come up with a different decision and the checklist is just a guide to help you decide from a tax and national insurance perspective.

It is not unusual for people to be happily self employed until something goes wrong with the working relationship. At that point they could well claim that they should have been classed as employees, or, at the very least, they should have been treated as workers, able to claim the minimum wage and paid holidays.

Courts have ruled that the intention of the parties is not the main determinant of a person’s contractual employment status, and that whether someone is employed or self employed is a question of fact for a tribunal to determine. Tribunals will look at the reality of the working situation. In this case the Kitchen Porter will have largely been controlled by the Head Chef determining the what, where, when and how the work is done. Therefore, the Porter is almost certainly an employee and you risk a hefty fine and extra attention from the HMRC if you are ‘caught’ paying him this way. Even if he is not an employee he may well be a ‘worker’ as highlighted in numerous recent court cases such as Uber, and is therefore entitled to holiday pay and possibly other benefits.

You must tell the Head Chef that the current arrangement cannot continue from an employment law or HMRC perspective. The Porter should transfer onto your payroll and if they are not happy to do so then they may decide to leave but at least you are not storing up serious problems for the future.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Cancer and Time Off Work

One of our Regional Managers went to see one of our managers who has been off sick with cancer for 8 months. It is said that he opened the conversation with the phrase “Right Barry, I think it is time to stop playing on this cancer thing and get back to work”. His wife, who also works for us, has complained that they were both so shocked by this opening statement that they really did not take in much more. She is angry and her husband is now feeling depressed about it, when timing wise he has only one more cycle of chemotherapy and radiotherapy to go. We asked the Regional Manager who has admitted to this comment.

Peter replies:

Approximately 90,000 people of working age receive a new cancer diagnosis every year. Millions of people in the UK under the age of 65 have been diagnosed with cancer at some point in their lives. More people are also surviving the disease and continuing or resuming their every-day lives, including their working career, as a result of continuing progress in diagnosis and treatment. This means that it is increasingly important that employers have the right policies, procedures and attitudes to provide the necessary advice and support to help employees affected by cancer from the point of diagnosis.

Your manager’s comments were at best crass and at worst insensitive and discriminatory.

Being diagnosed with cancer can be one of the most difficult situations that anyone has to face. It can cause great fear and worry, and can affect every aspect of their life, including their ability to work.

Very few organisations have a cancer policy and not many ensure that relevant staff have a good understanding of cancer and the impact of treatment on employees. Most organisations however do have policies or practices on phased return-to-work and provide a significant amount of flexibility around hours and work adjustments to employees affected by cancer. This does not require much training other than reminding people that cancer is a disability, that disability discrimination is unlawful and that stupid comments can be discriminatory.

Whilst it is tempting to put all the blame on your manager, too few employers ensure relevant staff have sufficient knowledge on how cancer affects individuals, or give them the necessary support, so the company are partially to blame too. Instead you could have conducted a cancer risk assessment with the employee and then taken appropriate action, with regular contact on an agreed basis.

There are many straightforward steps that employers can take. The simplest and easiest way you can help staff members with cancer is to keep in regular contact with the employee, and, plan their return-to-work carefully with them. Reasonable adjustments such as flexible working arrangements and a phased return-to-work can ease the transition back to work, when people are still dealing with the physical and emotional effects of cancer and its treatment.

You should quickly instruct your Regional Manager to visit again to apologise for his insensitivity and to re-assure the couple that his employer is going to do all that it can to help them (bearing in mind that the cancer affects his wife as well). It may be as well to have him accompanied by a senior colleague. After 8 months you might just have had a chance to fairly dismiss, subject to following a thorough consultation and medical assessment. This opportunity has gone and all you can do now is to be properly supportive, and thus potentially avoid a Tribunal claim, and keeping your company’s name out of the newspapers.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Unlawful Deduction of Pay

We run a petrol station and as is common in the industry,  we reserve the right to deduct from our staff’s pay in respect of till shortages,  even when that is due to what is termed  ‘bilking’ i.e. when drivers  fail to pay up after filling their tanks and just drive off. We had such an incident recently and decided that the time had come to enforce our rights by deducting the cost of the lost fuel (£56.72) from their next weekly pay.

They have written to say:

“I find it hard because even if I saw someone stealing petrol, what can I do about it? I would first have to leave the till unattended and then challenge the person who won’t pay even if I managed to get to their car in time. Every time I go to work I run the risk of not getting paid and I only earn £150 per week. I think it is illegal and wrong”.

Peter replies:

This is a common problem and inevitably a controversial one with the Petrol Retailers Association stating that docking wages is acceptable under certain circumstances. Trade unions see the practice as being ‘illegal and immoral’.

The law protects individuals from having unauthorised deductions made from their wages, including complete non-payment. This protection applies both to employees and to some self-employed workers.

The deduction will be unlawful if any of the following applies:-

  • it is not required or authorised by legislation, for example, income tax or national insurance deductions;
  • it was not authorised in their contract of employment, provided the worker has been given a written copy of the relevant terms or a written explanation  of them before it is made;
  • It was not consented to by the employee in writing before it was taken.

There are some limited exceptions where a deduction will be lawful, such as if they were previously overpaid or where they’ve taken part in a strike or industrial action.

In the retail industry or in a restaurant, employers can take up to 10% of gross wages to cover any shortfall if the deduction is made because of cash shortages or stock deficiencies. Such an employer may, however, make deductions over a course of many weeks/months, as long as they don’t take more than 10% for that pay period. If the employee leaves employment, you are then allowed to deduct the full outstanding amount from their final pay.

Workers who believe they have suffered an unlawful deduction from wages can take it up with their employer informally. If this does not sort out the matter, recourse may be made to formal internal grievance procedures. If this does not resolve the issue, then a complaint to an employment tribunal may be made. The abolition of Tribunal fees will make this option much more likely.

You appear to have over-deducted (certainly more than 10%) and do not state that you have the requisite authority as detailed above. You should deal with their letter as a grievance and seek to find an amicable resolution in this case.

In future you need to properly investigate and decide if disciplinary action is more appropriate in the circumstances, and if that does not work, then apply the above processes properly. Failure to do it properly not only opens you up to legal claims but makes it more likely that staff will leave because they feel unfairly treated.


The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Rest Breaks

We have a team that performs well, but because they are on commission, rarely take their official lunch break of 45 minutes, and usually take nothing at all. When one of the team told me that he was unhappy and wanted to be able to take a short break every day, I told him that it was the choice of the team how to arrange breaks.

Peter replies:

You don’t ask – you don’t get? Not quite when it comes to refreshment breaks. The failure to allow for rest breaks under the Working Time Regulations 1998 (“WTR”) is a ‘refusal’, even if no request has been made. Up until now, you may have been able to maintain that the responsibility has been on the employee, and it might also be characterised as ‘use it or lose it’.

This all changed last year with the case of Grange v Abellio London Ltd Employment Appeal Tribunal (EAT), which examined the scope of the right for workers to take a rest break. The case essentially asked: Is a worker required to ask for rest breaks, and be refused, before he or she can bring a working time claim in the employment tribunal?

The EAT made it clear that employers have an active duty to ensure that workers are able to take a 20-minute uninterrupted rest break for every six hours worked. It does not matter if the employee has appeared to acquiesce to an arrangement that prevents him or her taking a break. The entitlement to rest breaks under the EU Working Time Directive is intended to be actively respected by employers, for the protection of workers and health and safety.

An employee in this position can still bring a working time claim.

Many workers in high-pressured environments and many working mums do not take rest breaks, and will not complain that the right has been denied to them. Their perception may be that it is their choice, given their heavy workload, not to take a break.  However, you will not be able to use that as a defence if the employee later complains and seeks to enforce their rights. Employers may have been lulled into a false sense of security by the earlier case law, and need to be aware of the risk of claims, if they arrange working hours in a way that explicitly, or implicitly, prevents employees from taking a short break during the working day. This will be challenging in sectors where employees are often required to work long shifts, and where it is often difficult for them to take a scheduled rest break, due to the need to provide continuity of care/service.

Whilst employers will be reassured that there is no obligation to ensure that workers are taking the required rest breaks where they choose not to do so, it does mean:

  • You should review working arrangements to ensure measures are in place to enable workers to take such breaks should they wish to do so.
  • You must take active steps to ensure that your working time arrangements enable workers to take requisite breaks. This does not mean that you should force them to take breaks, but workers must be encouraged to take breaks. The onus is, therefore, put on employers to proactively make such arrangements, rather than employees to ask for their break entitlement.
  • Set out in your Handbook, and/or employment contract, their right to unpaid rest breaks.
  • Train Managers to raise the issue with employees who appear to be working long hours without a break.
  • You can foster a working culture that encourages breaks.

It can be a difficult balancing act to encourage employees to take rest breaks, without forcing them to do so, but you should do something with this employee, their boss and your Manager.


 The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

No Redundancy Payment

We are having to cut back due to lower sales and have offered someone in the sales office an alternative job on the same pay, but quite different working hours in a different department. They have said they cannot do those hours for family reasons, do not like the sound of the job and are insisting not only on a statutory redundancy payment, but payment in lieu of notice as well. I told him that he is entitled to nothing and will get nothing. He is consulting his solicitor.

Peter replies:

If their job no longer exists then their job is clearly redundant. Employees will lose their right to statutory redundancy pay if they unreasonably refuse a suitable alternative job offer. So this begs the question – What makes an alternative role “suitable”?

When considering whether an alternative role is suitable, an employer needs to consider the employee’s skills and experience, and the terms of the alternative job including status, location, duties, pay, hours and responsibility.

You would also need to show that the employee’s refusal was unreasonable. The employee’s specific personal situation, such as whether they have caring responsibilities and travelling distance, also need to be considered, and can mean that a job that may be a suitable alternative for one employee is not for another.

Their specific circumstances might well include:

  • the circumstances in which the offer is made, e.g. the time they are given to consider it;
  • whether or not the role is temporary; and
  • the employee’s personal situation, e.g. the impact it would have on their commute, family responsibilities or career aspirations.

If an employee’s personal circumstances mean that it is reasonable for them to refuse a suitable alternative role, they will still be entitled to a statutory redundancy payment. The issue of whether work is suitable is to be considered separately from whether an employee is acting reasonably in rejecting it. An employee will decide if the work is suitable based upon subjective factors personal to that employee.

The likelihood is that, unless the employee’s reasons for not accepting the offer are very poor indeed; an employer would need to pay redundancy payments to avoid an Employment Tribunal hearing where the rationale will be assessed from the employee’s point of vie. All the case law has favoured employees, so the outcome of a Tribunal claim would probably make it too risky to defend.

Highlighting to an employee that they may lose their redundancy payment if they unreasonably refuse an offer of alternative employment is a useful tactic, but only if you have done everything correctly and they are just being awkward.

Employees are entitled to a trial period of four weeks in the new job, so it might be worth talking to him further i.e. redundancy consultation to see if you can find a compromise on the hours and at least give it a try.

If that does not work then be prepared to pay them a redundancy payment and, unless you are happy for them to work normally during their notice pay, you will also have to give them a payment in lieu of notice, or pay them whilst they are on garden leave.

The manner in which the redundancy process is conducted is important. Whether or not an employee’s refusal to accept suitable alternative employment is reasonable is a subjective judgment, and so the way they are treated is crucial, to whether they accept and how you are perceived. Following a planned redundancy, procedure is not a bureaucratic nightmare; it is just a sensible precaution, legally and in terms of good employee relations.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Too old to start work

We have been recruiting catering staff and I saw a chef who was ok, but was a bit overweight and in his late 50s. I emailed his CV to my boss who emailed me back to say that “he is a bit long in the tooth for us”. Unfortunately he managed to also copy him in on the email. When that person emailed my boss back, to express his resentment, she replied that it was nothing personal, but we are quite a young and dynamic business and they would probably not fit in with the team.

Is there a way out of this?

Peter replies:

Legally you are up a proverbial creek without a paddle. It is rare to find direct evidence of age discrimination, and the first email was probably sufficient to get you into trouble at a Tribunal, assuming this leads to an age discrimination claim. The second email just drove a further big nail into the coffin lid.

Since 1 October 2006, age discrimination legislation (now contained in the Equality Act 2010) has made it unlawful for employers to discriminate on grounds of age in the opportunities that are afforded to employees for promotion, transfer and training, and for the receipt of any other benefit in their employment. Most employment tribunal claims are from ex-employees, some are from people remaining in employment, and a few are from people denied the chance to get a job, who believe that they have been unlawfully discriminated against, as this case relates to.

Managers need to be aware of the fact that they should not discriminate when it comes to offering employment, training, or promotion, on the grounds of age. Managers and anyone involved in the recruitment process need to be aware of age discrimination legislation and be trained in and follow good recruitment practices. The process of shortlisting and interviewing is to identify individuals that have the skills to do the job without regard to their age.

The law not only makes it unlawful to discriminate on grounds of age, directly and indirectly, but also to harass anyone intentionally or unintentionally (by subjecting them to behaviour which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment), Mocking or bullying individuals because of their age, will be considered as harassment. The Manager’s actions in seeking to explain her discrimination just dug a bigger hole, which could also be seen as harassment. It is stupid to assume that people of all ages cannot get along at work or outside of work, so trying to justify this comment will just keep digging a bigger hole. Both comments indicate a negative attitude to age, which can be construed as influencing the ‘decision’ not to pursue the application.

You have three approaches you can take:

  1. Write to apologise profusely and hope that does the trick.
  2. Apologise and ask them in for a further interview. They will either get the job or at the very least give you ammunition to justify why they would not have got the job anyway.
  3. Contact them or ACAS to sort out a deal i.e. a Settlement Agreement or a COT3 which includes a confidentiality clause to cover your embarrassment.

I would go for option 2, but if the candidate turns out to be ‘ok’ or even “quite good but not exciting” then I would give him a second chance. If he is no good then take care to give some constructive feedback that does not relate at all to his age and is totally job specific in what he is lacking. Whatever happens organise some form of Equal Opportunities and Dignity at Work training for all of your Managers as soon as possible.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Written Warning

A long serving manager went on a pre-booked holiday to attend his daughter’s wedding. He had not made proper arrangements for cover so we were embarrassed by a potentially major customer service failure. A decision was taken to issue him with a written warning upon his return, in relation to the failure to arrange cover. He was handed the letter which started by saying “This is a written warning…”. He argued this warning twice, firstly in a row on the day he read the letter and again a fortnight or so later when he expressed dissatisfaction that the warning would stand. As part of his arguments, the Claimant stated he had acted in accordance with usual practice when arranging cover, and no process had been followed when issuing the warning. A week later he spoke to this boss to say he was resigning, collected his pay packet, returned his keys and left. He then sent an email to the boss, repeating his explanation about cover, complaining that he had been given a warning without any process being followed and explaining that he felt he had no choice to resign as he felt he had been constructively dismissed.

We emailed him to say, he should withdraw his resignation and attend a grievance meeting (if it was his wish to raise a grievance). Following advice, we suggested that the previous letter (the one which started “This is a written warning…”) was not intended to be a formal warning and was not part of the disciplinary process.

Are we now safe from a Tribunal claim?

Peter replies:

The letter sounds like a written warning to me. On that basis such a penalty looks wholly disproportionate to the misconduct or performance he may have been guilty of, had a proper procedure been followed. The bigger problem is that no process has been followed at all. This failure to follow any process (either your own process or the ACAS Code) is likely to be held to be a breach of the implied term of trust and confidence, entitling him to resign in response to that breach.

It is a well established principle that a Claimant should not delay in accepting a breach and resigning in response to it. You can try to argue that his delay of 3 weeks between the warning and his resignation was too long, and so he had waived his right to accept the breach and make a claim. A Tribunal may well not accept this and find that he had not waited too long. He complained quickly about your conduct, which took you around a fortnight to respond to, and had walked out and sent an email which expressly stated he considered he had been constructively dismissed.
You might be able to get a reduction to the compensatory award, on the basis that he was guilty of some contributory conduct towards his dismissal, however he might get an uplift of up to 25% on the basis that the Club failed to comply with the ACAS Code of Practice.

A proper procedure must be followed with all disciplinary sanctions (not just dismissal) and that procedure must include a meeting and offering a right of appeal. Appeals can be used as, either a review of the original decision, or a complete rehearing, which is beneficial if there have been any flaws in the disciplinary process. This is the way you should have gone, instead of trying to simply back-track on the previous letter.

You can have several options:

  1. Pray that he gets another job and forgets about it, which is unlikely
  2. Wait for the Early Conciliation approach from ACAS and offer to settle quickly
  3. Approach ACAS to let them arrange conciliation and facilitate a deal
  4. Approach him on a without prejudice basis, to seek to arrange a Settlement Agreement

I would not rely on the first option. I would suggest seeking professional employment law advice in future as unfortunately, your actions over this matter are likely to be costly.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

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