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Employee falls asleep at work and is unfairly dismissed; explore lessons for employers on investigations, mitigation, and proportionality.
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In the case of Ms. Salkeld -v- Creditsafe Business Solutions Ltd, an employment tribunal assessed whether a settlement discussion was a protected conversation and whether the employer needed to follow Acas Guidances when a settlement offer had been made.
24 March 2020
Case Study
Ms. Salkeld expressed concerns to a colleague about the management style and her long-term future with her employer.
Her colleague informed the CEO of Creditsafe about her concerns, who in turn asked Ms. Salkeld’s line manager to address performance concerns with her that had never previously been risen. Without any prior notice, her line manager informed her of the performance concerns that had been raised by the CEO in a meeting on 19 February 2019. At the very end of this meeting, her line manager proposed a settlement agreement.
Follow-up discussions took place over the following days, including conversations about whether Ms. Salkeld would accept an alternative role.
Almost a week later, Creditsafe withdrew their alternative employment discussion and informed Ms. Salkeld that she must confirm whether she would agree to their settlement on the same day, leading to her resigning from her role and claiming constructive dismissal.
Ms. Salkeld’s employer argued that any conversations that took place offering a settlement were protected conversations and that pre-termination negotiations are inadmissible in employment tribunal proceedings.
Case Study
While it is accurate that pre-termination negotiations are inadmissible in certain employment tribunal proceedings, this does not apply if a tribunal decides that there is evidence of improper behaviour.
The tribunal decided that Creditsafe had acted improperly and, as a result, admitted details of the settlement discussions as evidence.
The employment tribunal also determined that the initial conversation was not protected because performance concerns formed the main content of the meeting. As these concerns had not been raised previously, and as the settlement agreement was only mentioned right at the end, the tribunal considered this to be “improper”. The subsequent conversations were tainted by this improper behaviour and, in any event, discussions about an alternative role did not relate to termination.
Regarding the final conversation, as Creditsafe had only given Ms. Salkeld seven working days to consider their settlement offer instead of 10 working days as recommended by Acas, and they did not issue a formal written offer, the tribunal also deemed this inappropriate.
This case serves as a reminder that protected conversations do not exempt an employer from following their disciplinary procedure. Acas guidance should be considered, and it is high risk to initiate a conversation about termination if prior discussion of the factors leading to it has not already taken place.
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