The Moore Barlow Employment team was instructed by a consultancy specialising in data protection and cybersecurity following the termination of employment of an individual during their probationary period due to their poor performance.
The background
This individual did not have the right to bring a claim for ordinary unfair dismissal and surprised our client by asserting not only that they had been automatically unfairly dismissed for whistleblowing and discrimination, but also that they would be making a claim for interim relief from the Employment Tribunal.
This is very unusual and only available in a very limited category of unfair dismissal claims. Interim relief takes the form of an order to continue paying salary pending final determination as to whether a dismissal is unfair and is only available if the Tribunal decides, at an interim hearing, that the claimant is likely to win at a full hearing. It is very rare for such an order to be made but, as in this case, a well-versed employee may know that it is costly and time consuming for an employer to have to contend with such an application.
The individual in this case had also submitted a subject access request and a grievance, as well as submitting the letter before action.
The team very quickly took full instructions which included fully understanding the background to the matter and the grounds on which the client had genuine and legitimate concerns about this individual’s performance.
This included conduct that had arisen within the first fortnight of employment and pre-dated any complaints being made by the employee that could be said to in any way amount to whistleblowing. Indeed, this had resulted in the client having asked another member of staff to work alongside the individual in anticipation that they would require this continuity following the termination of their employment within the probationary period in the near future.
Compelling evidence and the result
This compelling evidence that the dismissal was indeed fair was then set out to the vexatious employee in a robust letter of response. It was also commercially sensible to make a modest offer equal to the notice that the individual would have received outside of their probationary period of a month’s pay on consideration that they entered into terms of a settlement agreement that incorporated the waiver of all claims asserted and a withdrawal of their subject access request.
The individual, having realised that our client was not going to roll over with the threat of an interim relief application, straight away accepted the offer on the table and an agreement was completed within a week of the initial letter before action having been received.
The result was the client being able to quickly move on and focus on its business with the reassurance that this individual would no longer cause them difficulty and without having incurred undue onerous legal costs.
A word from our client
Naomi was excellent from start to finish. From our first call through to settlement she gave us complete confidence, was quick to grasp the issues, advise on the options and anticipate the outcome. We were grateful for Naomi’s support and wouldn’t hesitate to recommend her.
The client
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