Mitie Security (London) Ltd v Ibrahim
Mr Ibrahim worked as a security supervisor on a contract for Mitie Security (London) Ltd. On 18 September 2008, Mitie removed him from the client’s site on the ground that he did not bond with management colleagues. On 19 September, Mitie held a meeting with Ibrahim and confirmed the discussion in a letter of 22 September 2008.
The letter stated that Ibrahim had been removed from the site at the request of the client and that this had left Mitie with no alternative other than to consult with Ibrahim with a view to potentially issuing him with notice.
The letter said that there would be a consultation period of four weeks and that throughout this time Mitie would try to find Ibrahim an alternative position in the company.
The letter further stated that, should a position not be found within four weeks, Mitie could have no alternative but to terminate Ibrahim’s employment for “some other substantial reason”.
Alternative employment was not found for Ibrahim. On 29 September 2008, Ibrahim sent a written grievance to Mitie, headed “Harassment and discrimination case”. However, the complaint did not relate to his age, race, sex, religion or otherwise.
On 6 October 2008, a grievance hearing took place and a meeting to discuss the outcome of the grievance was arranged for 15 October 2008. Ibrahim did not attend the second meeting.
On 27 October 2008, Ibrahim wrote to Mitie indicating his intention to file an employment tribunal claim on the basis of “serious harassment, discrimination and victimisation”. Ibrahim lodged his tribunal claim on 6 November 2008, alleging unfair dismissal.
Ibrahim contended that his employment ended on 18 September 2008 when he was removed from site. Ibrahim also claimed race discrimination and harassment. Mitie defended the claim, contending, among other things, that Ibrahim had neither resigned nor been dismissed.
The issue of dismissal was considered at a pre-hearing review. The tribunal found that a dismissal had occurred, but on 23 October 2008 at the end of the four-week consultation period. The factors that the tribunal took into account were the removal of Ibrahim from site, the non-payment of his wages after this, and the failure to find him alternative employment.
The race discrimination claim was dismissed.
The tribunal’s decision on the issue of dismissal was overturned by the EAT, which found that Ibrahim had not been dismissed. The EAT said that the letter of 22 September 2008 did no more than give a warning to Ibrahim that if no alternative employment was found for him in the four-week period, Mitie might then be in the position of having to give him notice of termination. On the facts, that point was never reached. There was no ascertainable effective date of termination. The four-week period merely triggered the possibility of dismissal, either on notice, or perhaps summarily with pay in lieu of notice.
This case highlights that notice to terminate employment is not effective until actually given by the employer. Notice must also be effectively communicated and there must be an ascertainable date on which employment is to end. A warning that dismissal is likely or even that dismissal is inevitable by a certain date will not amount to a dismissal.
Stephen Robinson, legal director, DLA Piper
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