Q: A company director and shareholder was laid off due to bad workmanship and lack of work. He is now suing his own company, of which he still has shares etc, for wrongful dismissal through the appalling employment tribunal system. Can he do this and is this fair - it could bankrupt the company?
Mar 22 2007
Answered by: Peter Done Ask a question
Firstly, fairness does not come into the question. Tribunals will follow the dictates of the law and case law.
A claim for wrongful dismissal is either because he does not have sufficient length of service to bring an unfair dismissal claim or he believes he would achieve a higher award for breach of contract than he would for unfair dismissal, or a claim for both would generate more.
He can sue for wrongful dismissal/claim unfair dismissal if he is an employee and has the service necessary to bring a claim.
If he is, as you claim, guilty of bad workmanship and lack of work (I assume you mean he did not work rather than that there was a shortage of work for him – that potentially could be redundancy), then you may be able to defend the claim successfully anyway. Even if your procedures were not too good, you might be able to persuade the Tribunal that under the “any difference test” i.e. if we had done it (procedurally) fairly he would have been dismissed anyway” you might still not have to pay any award.
If it did go all wrong and the Tribunal did make a large award against you, you could still offer payment in stages – if he refused and went for the bankruptcy option the words “cutting off your nose to spite your face” spring to mind as he would be well down the queue of debtors and would be unlikely to recover anywhere near the amount he would have received had he accepted stage payments. It sounds like you need professional assistance urgently.
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