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Employee unfairly dismissed for accompanying colleagues at disciplinary hearings

Employees with less than one year’s service can claim unfair dismissal if the principal reason for their dismissal is that they accompanied a colleague at a disciplinary or grievance hearing.

In Evans v Open Sight (Havant Employment Tribunal 3100599/11), Mrs Evans began working for Over Sight as a part-time training coordinator in September 2010, becoming full time a few months later. A probationary review meeting was held in December after which notice of termination was issued. This happened shortly after she had represented a colleague at a disciplinary hearing and at a time when she was preparing to represent two other employees at similar hearings.

The tribunal found that Mrs Evans had been automatically unfairly dismissed, her employer having unsuccessfully argued that she had been dismissed for capability or conduct reasons. No performance issues were raised prior to the review meeting. There was also evidence that an internal advice note had been prepared which stated that it was not appropriate for Mrs Evans to accompany three employees to hearings.

Given that employees who start employment in April 2012 or later will need two years’ service to bring an “ordinary” unfair dismissal claim, going forward we may see more employees seeking to claim that they were automatically unfairly dismissed (as no qualifying period of service is required). Other examples of automatically unfair dismissals include dismissals related to health and safety matters and whistleblowing cases.

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