An IT director who insisted on working from home for an important meeting was unfairly dismissed, a tribunal has ruled.
In May 2022 Ben Wicken worked for IT services company Akita Systems, and had been asked to meet with the managing director, Christophe Boudet, in person to resolve a disagreement.
Wicken asked if he could attend the mediation meeting on Microsoft Teams instead, as he needed to be at home to supervise gardeners who were carrying out work on his property.
A previous meeting had been “productive and positive”, the tribunal heard, and there was hope that the working relationship would improve in the future.
Boudet was “very disappointed” that the follow-up could not take place in person and told Wicken that he did not appear to be taking the process seriously. He did then attend the office.
This meeting was attended by Wicken, Boudet and external HR consultant Maria Cruse, who questioned Wicken’s decision to prioritise working from home to “sort out” the gardeners rather than attend an important meeting in person.
Wicken told the tribunal he felt “attacked” during the meeting and told Boudet that he felt undervalued.
When asked whether the mediation process has been handled well, Boudet told the tribunal it was “questionable” whether management had done a “good job”.
Wicken was asked to attend a further meeting where he could draw up an improvement plan, but he said he was busy with work and had not had time.
He told the tribunal that directors were “very cold towards him and said they would cancel the meeting” with no guidance of what might happen next.
He wrote to management apologising for “wrongly committing to have a plan” because it was “too soon” and he was not ready, but that he could now meet to discuss.
In mid-May 2022, Wicken spoke with managers to agree to an improvement plan including “not wearing his jacket at all times” and “working on his image”.
Cruse said she was disappointed the plan did not address his capacity as technical director, and told Wicken that the directors were “unanimous” that they had lost trust and confidence in his work and there would be a meeting the next day.
The meeting the next day was a without prejudice meeting, and two days later Wicken submitted a grievance setting out a timeline of what happened and complaining that any dismissal would be unfair because Akita’s management had already made it clear they wanted to dismiss him.
“I reserve the right to resign as a result of [the respondent’s] fundamental breach of contract, and I shall be considering whether to take this step in the coming days,” he said.
Akita appointed another HR consultant, David Charity, to handle the grievance procedure. The tribunal heard that Charity was a long-standing friend of Boudet and had “no experience in conducting any workplace investigations for the respondent”.
Wicken emailed management again, claiming the process would be “an unfair and pointless exercise considering David is a good friend of yours outside of work”. He was then signed off with stress for two months.
He refused to engage with the grievance process and in late June, Charity wrote to him closing the matter. Wicken resigned, citing a list of reasons including Charity’s refusal to recuse himself from the process and the directors’ conduct towards him.
The tribunal ruled that Wicken had been unfairly dismissed, acknowledging that the “insistence that Mr Charity remain as the HR professional compounded the perception of bias” and that this further damaged the relationship of trust and confidence between employer and employee.
“Looking at the respondent’s conduct as a whole and determining its cumulative effect, the tribunal concludes that the claimant could not be expected to put up with it,” said employment judge Lise Burge in conclusion.
She added: “The respondent submits that the claimant admitted that his decision to prioritise arrangements with his gardener over attendance at a one-to-one mediation follow-up meeting was a mistake and that he refused to cooperate with the grievance investigation.
“However, these actions, in the context of the facts found and detailed, do not constitute ‘culpable or blameworthy’ conduct.”
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