Attempted Murder – then unfair dismissal. Why lawyers like The Archers.
The Archers, that supposedly every day story of ordinary country folk, has grabbed the public’s attention recently and provided lawyers with a great platform to showcase the law.
The dramatic story involves Helen Titchener stabbing her husband Rob almost to death in their kitchen following a domestic argument. The main focus is on how Helen had been the victim of domestic abuse over many months and for many Rob got his just desserts.
The storyline has been a gift to criminal lawyers all keen to demonstrate their expertise on the law of attempted murder, loss of control and self defence. Thankfully employment lawyers can now take a professional interest in one aspect of the story with the on the spot dismissal of ne’er do well Jazzer McCreary, Tom’s pig man.
For those who are in blissful ignorance of The Archers, Tom is the brother of Helen and he was within earshot of Jazzer when the latter gave vent to his innermost thoughts about the incident in none too flattering terms about Tom’s sister. Tom punched Jazzer in the mouth for his pains, summarily dismissed him from his employment and also told him to remove all his possessions from the room on the farm in which he had been living. A while later Tom is spoken to by former fiancé Kirsty who warns him that Jazzer might take Tom to an employment tribunal for unfair dismissal.
Would Tom have a case?
Well, indeed he might. Most employers probably do not need to be told that physically assaulting an employee at the same time as dismissing them is not best practice. The fact that Jazzer is a fairly loathsome creature anyway who probably deserved it is also of little merit in this instance.
If Jazzer has two years’ continuous employment experience with Tom then he is eligible to bring a claim for unfair dismissal at an employment tribunal and it will then be for Tom to demonstrate a fair reason for dismissing him. The reason would almost certainly be Jazzer’s conduct in making very unpleasant comments about his sister and which would probably amount to a breakdown in the mutual term of trust and confidence between the parties.
Tom would then have to prove that he had acted reasonably in relying upon Jazzer’s conduct as a reason for dismissal. In the employment tribunal in cases of unfair dismissal it is always the procedure that the employer gives his evidence first to justify his conduct. The burden of proof therefore is upon Tom to show that he acted reasonably. Almost certainly he did not in reacting so violently and had he not dismissed Jazzer in the next breath, he may well have been facing a claim for constructive dismissal from his employee.
In the mundane real world Tom should have called a disciplinary meeting when he had calmed down and considered whether dismissal was the only option available. Having contemplated it if he still felt that dismissal was the correct option he would have given Jazzer notification of that in writing and also given him the right to appeal. Strictly speaking Tom should also have conducted a thorough investigation before the disciplinary, to include speaking with the other pig man, Neil, who was present at the time. Being a small employer and given the circumstances where Tom had heard the comments directly an investigation may well not have added very much to what Tom already knew.
It is open to an employment tribunal to increase an award of compensation upon making a finding of unfair dismissal in cases where it feels the employer has unreasonably failed to follow the correct process. However there is also a good chance that any award of compensation towards Jazzer McCreary will be reduced for his contributory negligence in expressing the views that he did.
Additionally, he was lodging in a room in the farmhouse with Tom and his family and was ordered by Tom to vacate the premises forthwith, which Jazzer obligingly did. Telling him to get out straightaway is unlikely to be reasonable notice and usually the period of notice required will be based upon the frequency of rental payments e.g. does he pay weekly or monthly.
For all these reasons, if Jazzer was the litigious sort then he may be able to cause Tom some further headaches. In fact, Jazzer being a fairly stroppy character probably is litigious, but he almost certainly lacks the means to pay the tribunal fee of £250 to issue his claim, let alone the final hearing fee of £950 which follows in short order afterwards. Therefore, although Kirsty was right to warn Tom that his actions were unwise, it is probably unlikely that Jazzer will go anywhere near an employment tribunal. Jazzer is probably the sort to take the law into his own hands and thus I predict a punch up in The Bull one Friday evening soon.