Case Study: Protecting An Employee Without Two Years Service

How Fiona Martin, Head of Employment Law, helped an employee with less than two years’ defend unfair disciplinary allegations and raise a grievance relating to discrimination.

The situation

Katie worked for a security firm which looked after a children’s home. She was unfairly accused of stealing when in reality she was simply taking home a few left over unopened bottles of water that children who had been discharged had left.

Katie had seen other security officers help themselves to what was left on several occasions. She was also told by other more senior colleagues that it was normal practice. She did not think she was doing anything wrong. She was suspended from work for gross misconduct.

Katie is a young black female with a deformed foot, which is a disability under the Equality Act. Prior to this, she had experienced several other instances of unfair treatment including being singled out for criticism over minor issues and being accused of lying about genuine sickness absence. In addition, after disclosing that she was struggling with her disability at work, the manager told her that she should have told them at her interview that she wasn’t suitable for this role. In fact, there were shifts which were more sedentary where she could sit down and he failed to offer this as a reasonable adjustment.

Shortly after this conversation she was stopped and searched as she left the children’s home and then suspended on full pay in October 2022.

She was in a vulnerable position as she did not have unfair dismissal protection as she had less than two years’ service.

What Martin Searle Solicitors did

Katie was very distressed when she came to us. She had been seeking support during the disciplinary investigation from her trade union representative. However, she felt her union representative was not supporting her properly and was on the side of her employer. He would not allow her to name those who had also taken small items of property, like water and snacks, when children left their care.

The investigation had moved on to the disciplinary hearing stage but Katie had not even received a copy of the full investigation report including all the witness statements she had requested they take to show that what she had done was normal practice. This included an older white male, who was also a security officer, who had been eating the crisps the same child had left behind when discharged.

We helped Katie raise a formal grievance to complain about the various instances of unfair treatment that lead up to the disciplinary, including the unfairness of the disciplinary process itself. We included complaints of discrimination relating to the employee as it was apparent that she was being treated less favourably compared to her colleagues, the majority of whom were older white males.

It was apparent that there were ongoing issues of mistrust without justification, and the water bottle incident had been unfairly escalated to a gross misconduct issue. In addition, her employer did not want to make reasonable adjustments to support her disability. We also helped Katie to submit a Subject Access Request.

The result

Katie took a period of mental health sickness absence due to the stress of the process. As a result of this and raising her grievances and Subject Access Request her disciplinary hearing was postponed.

Katie was still employed by the time she reached two years’ service, in June 2023. This meant she only had to show unfair treatment rather than less favourable.

The employer finally held the disciplinary but because she now had unfair dismissal rights they only gave her a final written warning, rather than dismissing her for gross misconduct.

With our help, Katie resigned with immediate effect and we lodged her Employment Tribunal claims for disability and race discrimination as well as constructive unfair dismissal.

Her case later settled for an amount which covered all her loss of earnings as she decided not to return to the same sector and decided to train as a teacher instead. She also received an injury to feeling award of £10k.

If you are experiencing unfair dismissal, contact our expert Employment Law solicitors on 01273 609911, or email info@ms-solicitors.co.uk.