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Employment Law Case Update: Automatic Unfair Dismissal

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Understanding the Working Time Regulations is a key part of your responsibilities as an employer and any breach of these could land you in tribunal.  Our Employment Law team today review the case of Mrs McMahon v Heron Financial Limited 2020 and the dismissal of an employee who was always moaning’ due to working more than 48 hours per week.

Mrs McMahon began working for her employer in June 2017 as a mortgage protection adviser. She was frequently required to work more than 48 hours in a week, despite the fact that her contract required her to only work 40 hours a week and she had not signed an agreement opting out of the average 48-hour working week permitted by the Working Time Regulations.

Mrs McMahon informed her managers about commission payments she believed she was owed in May 2019. Following this, she took two weeks off due to illness. On her return to work she held a meeting with her manager where she raised several concerns including the stress caused by working over 48 hours a week, and that she hadnt been paid the commission or sick pay owed to her.

Two days later Mrs McMahon was dismissed without an explanation. She raised a grievance as a result of her dismissal which was dealt with by letter and not upheld.

Subsequently she made a number of claims to the Employment Tribunal (ET), including that she had been automatically unfairly dismissed for asserting her statutory right to work less than an average of 48 hours per week and asserting her right not to have unlawful deductions made from her wages.

The company argued that she had been dismissed for poor performance. However, there was no evidence of this and previously she had been recognised for having one of the highest conversion rates in the company and rewarded with a bottle of champagne.

The ET held that Mrs McMahon had been dismissed unfairly. In the judgment Judge King said: [Heron Financial] is not going to admit it dismissed her for inadmissible reasons but… in the absence of any other credible reason… her dismissal was because she was moaning’… I am satisfied [Mrs McMahon] was dismissed for the assertion of a statutory right, that dismissal was unfair as no process was followed and there was no fair reason to dismiss.” The ET also noted that Mrs McMahon did not have sufficient service to claim ordinary unfair dismissal as she had under two years’ continuity of service. However, there is no minimum service requirement for claims of automatic unfair dismissal (dismissing an employee for a prohibited reason). Mrs McMahons claim for unlawful deduction from wages also succeeded.

Mrs McMahon was awarded £19,552 for unfair dismissal, and £2,736 for unlawful deduction from wages. She was also awarded £587 for unpaid commission and sick pay, and £252 for wrongful dismissal.

The case highlights the importance of following the correct steps in dismissing an employee, regardless of the employees length of service. The case also reminds employers to be aware of the statutory limits on working time and employees’ rights to rest and breaks.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email

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This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.