A recent Jersey Employment Tribunal case has ruled that despite the unprecedented circumstances surrounding the Covid pandemic, it cannot be automatically relied on as a defence in unfair dismissal by a business.
The ruling reinforces the need for all employers, even small businesses, to ensure they follow good quality HR advice, or risk facing additional costs and potentially reputational damage.
The case in question, was Mihlalache v Fauvic Nurseries Ltd T/A Holme Grown.
Ms Mihlalache claimed unfair dismissal on the grounds of redundancy with age related discrimination. Fauvic Nurseries said Ms Mihlalache was dismissed because of her conduct, attitude, and behaviour, and although it accepted that there was ‘an element of unfairness in their approach’, it pointed to the unprecedented and stressful times caused by the pandemic.
In its findings, the Tribunal found that Ms Mihlalache’s behaviour did contribute to her dismissal, but that the dismissal was unfair, and the claimant was awarded £3,909.27 in damages.
Tony Riley, Senior HR Consultant at HR Now, said the case could have been won if the right procedures had been in place. “It was a series of classic own goals that good HR advice would have prevented. If a business believes it needs to dismiss an employee, then it must still do so fairly and legally.”
Tony also observed that, “While there is little Channel Island or UK case law yet on the pandemic as a defence, early indications are that employers will still be held to account based on current Employment Law, not the unprecedented circumstances.”
The circumstances leading to the upholding of the claim included:
- There was no proper investigation
- No notes were taken of any meetings or conversations
- The translator used by the company was the person who made the behaviour complaint against Ms Mihalache
- There was no disciplinary hearing and therefore no opportunity for Ms Mihalache to exercise her statutory right to be represented or accompanied
- No written reasons for her dismissal were provided.
- No right of appeal was given.
