Senior City Broker Dismissed for Poor Performance

The broker had in his contract of employment a term whereby, if his performance dipped below a certain level for three consecutive months, his employer was entitled to dismiss him without notice. This is in fact what happened - when his performance fell below the minimum specified in April, May and June 2012, he was sent a letter requiring him to attend a disciplinary meeting, presented with his figures, and dismissed straightaway in early July 2012.
The broker, who was head of the energy desk, tried to argue that he had no knowledge that his figures were poor, this despite him receiving the information on a daily basis.
 
The tribunal remarked that Paragraph 4.39 of the ACAS Guide to Discipline and Grievances at Work (2011) says that, ‘employers should give employees a clear indication of the type of misconduct which in the light of the employer’s business will warrant dismissal without the normal period of notice’. Since the contract of employment included very clear terms regarding performance, and lack of, the tribunal found that the employer had followed a fair procedure.
 
Other reasons for the tribunal’s finding were the nature of the employer’s business, being purely to generate significant revenue, the seniority of the employee concerned, his knowledge of the business, and his remuneration package compared to his revenue generation. Such was the loss of revenue which the business was facing, the tribunal agreed that the employer did not have to allow any period for improvement of performance beyond the three month window as specified in the contract of employment.
 
In addition, the employee had brought significant but ill-founded whistle-blowing claims and breach of contract claims, which all failed. It was however found by the tribunal that the performance term in the contract could not override section 86 of the Employment Rights Act, and the employee was awarded one week’s statutory notice pay.
 
Mr M Davies v OTCex SA (UK Branch) [2013]
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xThe broker had in his contract of employment a term whereby, if his performance dipped below a certain level for three consecutive months, his employer was entitled to dismiss him without notice. This is in fact what happened - when his performance fell below the minimum specified in April, May and June 2012, he was sent a letter requiring him to attend a disciplinary meeting, presented with his figures, and dismissed straightaway in early July 2012.
 
The broker, who was head of the energy desk, tried to argue that he had no knowledge that his figures were poor, this despite him receiving the information on a daily basis.
 
The tribunal remarked that Paragraph 4.39 of the ACAS Guide to Discipline and Grievances at Work (2011) says that, ‘employers should give employees a clear indication of the type of misconduct which in the light of the employer’s business will warrant dismissal without the normal period of notice’. Since the contract of employment included very clear terms regarding performance, and lack of, the tribunal found that the employer had followed a fair procedure.
 
Other reasons for the tribunal’s finding were the nature of the employer’s business, being purely to generate significant revenue, the seniority of the employee concerned, his knowledge of the business, and his remuneration package compared to his revenue generation. Such was the loss of revenue which the business was facing, the tribunal agreed that the employer did not have to allow any period for improvement of performance beyond the three month window as specified in the contract of employment.
 
In addition, the employee had brought significant but ill-founded whistle-blowing claims and breach of contract claims, which all failed. It was however found by the tribunal that the performance term in the contract could not override section 86 of the Employment Rights Act, and the employee was awarded one week’s statutory notice pay.
 
Mr M Davies v OTCex SA (UK Branch) [2013]