Unfairly blamed for rule breach when following management instruction
Published 07 July 2021
You would be justified in feeling aggrieved if asked to do something by your boss only to later face disciplinary action for doing exactly what you had been asked to do.
Like millions of other employees Ahmed was placed on furlough at the start of the coronavirus pandemic in March last year.
The fashion merchandiser remained at home, and did no work for his employer for the first couple of months while on furlough.
While on the job retention scheme Ahmed was asked by his manager to deal with some work emails and liaise with clients based abroad, who were continuing to work.
Unsure about doing what he was asked, Ahmed questioned what he was being asked to do. He was assured by his boss that there was nothing wrong in it.
The work Ahmed was doing was generating income for his employer. However, he was still being paid just 80 per cent of his usual salary.
Ahmed was still on furlough and dealing with work emails and overseas clients when his employer announced it would need to restructure the business. This was due to the impact of the pandemic. .
The employer said it would start a redundancy process. Ahmed who had worked for the business for about 12 years was understandably concerned.
Ahmed’s manager left the business quickly after the redundancy announcement.
Unconfirmed rumours said he left with a settlement agreement following an investigation into his conduct and honesty.
When Ahmed was later asked to attend a meeting, he assumed that it was a redundancy consultation meeting.
However, a director of the business, who was chairing the meeting, questioned Ahmed at length about his former manager and the work that he had done while on furlough.
Ahmed explained what he had done and that he had acted on the instructions of his manager.
Shocked Ahmed was informed that his actions breached the rules of the Coronavirus Job Retention Scheme (CJRS). Employees on furlough could not work for their employer.
Ahmed said he had followed his manager’s instruction, and simply did what he was asked to do.
He was told that what he had done could have serious repercussions for the business.
Despite protesting his innocence Ahmed was suspended from work.
What happened next was unexpected and took Ahmed by surprise.
The director asked to have an ‘off the record conversation’ with him, and referred to Section 111A of the Employment Rights Act.
It enables confidential conversations to take place between employer and employee using the without prejudice principle.
In that chat the director said Ahmed’s role would be made redundant. He said he would of course have been entitled to redundancy pay, but because of the allegation he is likely to be dismissed with nothing.
Ahmed was told that as an act of ‘goodwill’ the business would give him £1,500 tax free, pay his 12-week notice period, pay for his outstanding annual leave and guarantee him a reference.
Stunned Ahmed was told it was a generous offer and he would be stupid to refuse it.
However, he did refuse and was later invited to a disciplinary hearing to face an allegation of breaching the CJRS.
Ahmed contacted the Castle Associates Employee Support Centre for help.
Using emails and text messages from Ahmed’s former manager our representative argued that any disciplinary action against him would be grossly unfair.
The evidence showed Ahmed followed, but questioned, what at the time he believed was a reasonable management instruction.
Our representative pulled apart the case against Ahmed before initiating another conversation about a sensible settlement agreement, which was Ahmed’s desired outcome.
An agreement was later reached with Ahmed receiving a five-figure tax free lump sum along with the rest of the terms offered previously.
“A reputation built on success”
For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call.