Global tyre manufacturer Michelin has been fined £5,000 by an employment tribunal for unfairly dismissing a mourning employee. It is the first time in Scotland an Employment Judge has exercised powers under Section 12A of the Employment Tribunals Act 1996, granted in April 2014, which allow a tribunal to punish employers who breach their worker’s rights. The penalty imposed against Michelin is at the maximum level.
Section 12A of the Employment Tribunals Act 1996 gives employment tribunals the authority to order employers to pay a fine (payable to HM Courts and Tribunals) where they have been found to have breached any of a worker’s rights to which the claim relates and the breach has ‘one or more aggravating features’. Aggravating features are not prescribed in the legislation and therefore it is for the employment tribunal to determine whether they are in existence.
Government guidance implies that factors which an employment tribunal may consider in determining whether to impose a penalty are:
- the size of the employer’s business;
- whether the action was deliberate or committed with malice;
- whether the employer has a dedicated HR team who could advise on a proper course of conduct; and
- whether the employer continually breached the employment right originally in dispute.
Whilst S12A obliges the tribunal to take into account the employer’s ability to pay prior to imposing a fine, an employer can be fined regardless of the nature of the remedy awarded to the claimant.
Dundonian factory worker, Mr Stan Reid, was signed off from work with stress following the death of his best friend’s son, Ralphie Smith, and two of Mr Smith’s friends. Mr Reid, an employee of Michelin for 13 years, co-ordinated the search for Mr Smith after he went missing. He was fired for gross misconduct after his employer saw a social media post indicating he had attended a gin festival in Glasgow during his sick leave.
An employment tribunal held he had been unfairly dismissed in February and ordered Michelin to pay him £29,485 in compensation.
However, the tribunal went beyond simply awarding Mr Reid compensation and also decided it was appropriate to fine Michelin for the way they had dismissed Mr Reid. In the tribunal’s written judgement, Judge Peter Wallington QC cited two ‘aggravating factors’. Firstly, Mr Reid’s boss, Stuart Duncan, announcing his decision to dismiss the claimant at the start of the disciplinary hearing which was contrary to the respondent’s procedure and did not provide Mr Reid with the opportunity to speak to the allegation. Secondly, Mr Duncan’s disregard for a fit note provided by Mr Reid’s GP and a letter of support from his colleagues, which spoke to the fact his illness which caused his absence from work was genuine.
Judge Wallington stated: “The respondent is a large organisation with sufficient resources to enable it to comply with the basis canons of employment law.”
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