IT director Ben Wicken resigned from his job after his colleagues ‘lost confidence’ in him over the incident – a tribunal has since said that he was ‘unfairly dismissed’
The employee suggested having an important meeting with his boss online so that he could remain at home [stock] (Image: Gary Burchell/Getty Images)
Asking to work from home as you’re having work done to the garden is not behaviour an employee should be disciplined for, a tribunal has suggested.
While trying to hold an important meeting remotely so you can supervise tradesmen might be a ‘mistake’ it is not necessarily ‘blameworthy’ conduct, the panel said. The ruling came in the case of an IT director who fell out with his boss after asking to hold a face to face meeting via Teams as he was having ‘work done’ in his garden.
Ben Wicken had been scheduled to meet company founder Christophe Boudet in person to try to resolve a work disagreement, the employment tribunal heard. But he asked to hold it instead via Teams – as his gardeners were due to come over and he needed to work from home for the rest of the week as a result.
Mr Wicken wanted to be at home so he could deal with his gardeners [stock](Image: Getty Images/iStockphoto)
Mr Boudet told the tribunal he was ‘very disappointed’ by this as it made it seem as if Mr Wicken was not taking the process seriously. Shortly afterwards his co directors announced that they had ‘lost trust and confidence’ in the technical director, leading to his eventual resignation.
Mr Wicken is now set for a payout after winning his case for unfair dismissal against IT services company Akita Systems for constructive unfair dismissal. The tribunal, held in Croydon, south London, heard that Mr Wicken began working at the company in March 2014 as a junior network manager and later became the technical director.
In March 2022 he got into an argument with his Mr Boudet, about holiday cover. An external HR specialist, Maria Cruse, who witnessed the argument, offered to carry out meditation between the two directors to help them improve their communication.
The tribunal heard their first mediation meeting went well and they continued to meet regularly.
“The next mediation meeting was due to take place on 3 May 2022,” the hearing was told, “but [Mr Wicken] called Mr Boudet and asked if they could move the meeting to a Teams meeting and change the time to 11am as he needed to work from home for the rest of the week because he had work being done in the garden and so he would need to be there.
“The Tribunal accepts the evidence of Mr Boudet that he was very disappointed about this and told [Mr Wicken] that it appeared he was not taking the process seriously. [He] did then attend the office.
“Ms Cruse’s notes show that she questioned [his] decision to prioritise working from home to sort out his gardeners rather than attend the office for the one to one meeting with Mr Boudet and that initially [he] could not understand what he had done wrong.
“After lengthy discussion [he] conceded that in hindsight he should have communicated better with Mr Boudet and he should have attended the office for the 1:1 meeting”
The tribunal heard that Mr Wicken felt ‘attacked’ during the meeting and broke down in tears following an ‘off the record’ discussion with his boss afterwards. Three other directors then took Mr Wicken to the pub to ‘show support’ for him and arranged a future meeting to discuss the issues.
During that discussion, a week after the meditation, Mr Wicken agreed to draft an ‘improvement plan’ for his relationship with the founder. However, just before they were due to reconvene to discuss the plan two days later Mr Wicken said he had been too busy to prepare the plan and did not ‘understand the task’.
He told the tribunal that his fellow directors were ‘disappointed’ and ‘very cold’ towards him but agreed to cancel the Friday afternoon meeting.
Mr Wicken then spent the weekend thinking about the improvement plan before discussing it with Ms Cruse the following Monday. He came up with six key points including that he would ‘work on his image’, ‘be less defensive’, and have weekly meetings with Mr Boudet.
Ms Cruse told him that these points did not address the key issues around his capacity as a technical director. The tribunal found that she then telephoned the directors but did not tell them about Mr Wicken’s improvement plan.
Following that call she spoke to Mr Wicken again and told him that the directors had a ‘unanimous view’ that they had lost trust and confidence in him, she advised him to ‘keep an open mind’ but also said he couldn’t change their decision.
Two days later Mr Wicken submitted a grievance, claiming that Akita Systems had ‘unambiguously announced’ their intention to dismiss him before any process had been followed. An external HR consultant, David Charity, was appointed to investigate but he was also a longstanding friend of Mr Boudet, Mr Wicken said instructing him was ‘unfair and pointless’ because of this.
A lengthy process then followed between Mr Wicken’s solicitors and Mr Charity with them repeatedly asking to recuse himself, eventually Mr Charity unilaterally closed Mr Wicken’s grievance because he had failed to ‘actively pursue’ it.
This was the ‘last straw’ for Mr Wicken, who had been off sick for two months, and he chose to resign on 28 June instead of returning to Akita Systems. He listed the reasons for his resignation as conduct towards him since February, a ‘sham’ performance improvement plan, and the appointment of Mr Charity to investigate his grievance.
The tribunal found Mr Wicken’s treatment did lead to his constructive unfair dismissal, in particular the comments by Ms Cruse about his codirectors losing trust in him, the instructing of Mr Charity, and the decision to close his grievance.
Employment Judge Lisa Burge said that although Mr Wicken acknowledged that prioritising his gardener over the one to one meeting was a ‘mistake’ it wasn’t ‘blameworthy’ on his part. She said: “The tribunal concludes that [Mr Wicken] did not contribute to his dismissal…
“[Akita] submits that [Mr Wicken] 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 above, do not constitute ‘culpable or blameworthy’ conduct.”
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