Case study – Liam – I successfully appealed my employer’s decision to dismiss me due to ‘unsatisfactory conduct’

Liam contacted our helpline after his employer dismissed him for failing to disclose his unspent conviction. Liam explained to us that he’d originally been employed on a temporary basis through a recruitment agency before being taken on by the company approximately 6 months later as a permanent member of staff.

When he’d signed up with the agency, he had disclosed his unspent conviction for assault occasioning actual bodily harm (ABH) and assumed that this information would be passed onto any employer he’d be working for. He was pleased to find that his unspent conviction didn’t appear to be a barrier to him getting into work and he was offered a temporary position very quickly. When this position became permanent, he didn’t find it strange that he wasn’t asked about his criminal record.

Soon after starting his permanent role, Liam was told that he would need a basic DBS check. He confirmed to his employer that, as his conviction for ABH wouldn’t be spent until 2020, it would still appear on the certificate.

Liam’s employer received the certificate just before Christmas but it wasn’t until approximately 8 weeks later that he was asked to attend a meeting with his line manager and HR manager to discuss “the non-disclosure of his criminal record”. His employers stated that due to the nature of his offence, they felt it was likely that they may not be able to continue with his employment.

Following the meeting, Liam was informed that his employment was being terminated due to:

Unsatisfactory conduct during your probationary period

Our helpline advisor explained to Liam that the only option open to him would be to appeal his employer’s decision. We offered to assist him in writing a letter of appeal. The letter highlighted how:

  1. Liam had disclosed his conviction to the recruitment agency who had initially employed him. He had no reason to doubt that they would not pass this information on to the employer. In addition to this, Liam had disclosed to the employer at the time his basic DBS check was being applied for.
  2. If the employer truly believed that Liam’s role and the nature of his offence made him unsuitable to work for the company, why did they allow him to continue working for 8 weeks following receipt of his DBS certificate.
  3. Liam was surprised to learn that he was being dismissed for unsatisfactory conduct as his understanding of this would be that:
    • He was incapable of doing his job to the required standard.
    • He was capable, but unwilling to do his job properly.
    • He had committed some form of misconduct.

None of these points were applicable to him.

On receipt of his letter, Liam was asked to attend an appeal hearing where he once again went through the point’s he’d raised in his letter. He made it clear to his employers that he deeply regretted the decisions he’d made which led to his conviction and that he’d really enjoyed the time he’d spent working for them.

Following the hearing, Liam was told that his employer would be reinstating him.

Liam commented:

“At the end of the meeting my employers accepted the fact that they were in the wrong for terminating my contract on the grounds of unsatisfactory conduct and offered me my job back. This wouldn’t have been possible without Unlock’s help and I feel I owe you.”

Lessons

This case demonstrates that if you are dismissed by your employer, for whatever reason, it’s not a foregone conclusion that you can’t successfully appeal their decision. Although it may not be wise to assume that a recruitment agency will pass criminal record information onto an employer, in this case Liam had also disclosed it prior to his employer carrying out a formal criminal record check.

Where you believe you’ve done nothing wrong, then you have nothing to lose by appealing an employer’s decision to dismiss you. In some cases, you may be able to bring a case of wrongful dismissal against your employer at an Employment Tribunal.

Links

Notes about this case study 

This case study relates to Unlock’s case work.

Names and details have been changed to protect the identity of those involved.

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