Employment Law Clinic – Supporting a client who made a mistake

By Madeliene Adams-Smith and Kam Singh

The case of Janet (not her real name) was particularly gratifying to work on in the Employment Clinic because not only did we get the result desired, but we also got to see it the entire way through. Quite often, due to the nature of legal clinics, we must send clients on their way to tribunals, legally empowered but alone. Unless clients contact us, we rarely get to know the impact we have had on their case, or whether they need help further down the line. Therefore, it was extremely satisfying to see this case through from beginning to end and to continue to answer concerns over email after the initial meeting.

In this case, Janet suspected that she was being paid less than male colleagues. To confirm this, she breached the company’s data policy and looked at the wages of other employees. The company was alleging gross misconduct warranting summary dismissal as a result of the data breach and subjected her to a disciplinary hearing. In doing so, they ignored the direct discrimination (inequality of wages) they had subjected Janet to for the past two years.

There is a natural tendency to want to believe that a client, whose case you support, is completely in the right, and the employer (in the case of the Employment Law Clinic) is in the wrong. But what happens when the client admits, from the start, that she made a serious mistake that, if one were to disregard the particular context, would surely justify her dismissal? This was the challenge for us when we came across Janet’s case. The way out of the moral and legal quandary quickly became apparent – we need not disregard the particular context. In fact, the context was everything.

The Employment Law Clinic played a vital role in supporting Janet through her disciplinary in order to negotiate an outcome that worked for all. Although Janet had made a mistake, the employers had also failed to fulfil their legal duty. It was important for us to highlight the blame on both sides to ensure that the disciplinary did not end in dismissal, and it goes to show that with some legal empowerment and a letter, mistakes can be resolved without a tribunal.

We argued on behalf of our client that the employer should deal with the matter amicably and suggested a form of warning as an appropriate outcome, rather than a heavy-handed dismissal. Janet could not afford to lose her job. Therefore, we drafted legal arguments for Janet to take into the disciplinary hearing which stated that the disciplinary process was contrary to the Equality Act 2010, as her employers had victimised her for doing a protected act to enforce her legal right to equal pay. The protected act was looking at the data, thus, disciplinary resulting in a dismissal would mean subjecting Janet to a detriment, in contravention of the Equality Act 2010. We negotiated a lower-level warning instead of a dismissal and claimed that Janet’s pay should be backdated for the past two years and her pay rate updated to ensure it was in line with other colleagues of the same role.

Accompanied by our letter, Janet felt empowered to make her case before the disciplinary panel, leading her to avoid dismissal and instead being issued a final written warning. This was a very satisfactory result in its own right. However, there was no mention of the client’s pay or how they were going to address this. So, after several further email conversations and another draft email written for Janet to send to Human Resources, the company agreed to backdate the pay and amend the rate going forward to be in line with other colleagues. The client was extremely grateful for the continued assistance and we were delighted to see it all the way through to the end.

This was a gratifying result considering Janet believed her case to be so dire. It was satisfying to be able to get her a result that she deserved for making quite a momentary lapse in judgement to enforce her legal rights. The fault was acknowledged on both sides and an amicable negotiation led to a result that worked for both parties.

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