Mortgage advisor sacked for ‘always moaning’ was unfairly dismissed, tribunal rules

Claimant awarded more than £23k after judge finds managers ignored her complaints about underpayment of commission and excessive working hours

A mortgage advisor who was sacked for “moaning” about her statutory rights was unfairly dismissed, a tribunal has ruled. 

The Cambridge employment tribunal found that Mrs McMahon, who worked as a new build and mortgage advisor at Hertfordshire-based Heron Financial Services, was unfairly dismissed without reason when a director concluded that she was “always moaning” following a complaint about her commission.

Management later claimed the reason for her dismissal was for conduct and performance, but the tribunal found that those who had performed worse were not dismissed. 

McMahon worked for Heron from 19 June 2017 until she was dismissed on 4 June 2019. The tribunal heard she had a “unique” role, in which she would travel to sites and meet clients viewing show homes across the Chilterns, on a hybrid working arrangement. 

She told the tribunal that she worked long hours as a result and would often work 12 hours a day with no lunch break, as well as weekends. 

McMahon – who was entitled to commission alongside her basic salary – was one of the top performers in the company. Figures obtained by the tribunal showed that for several months during the beginning of 2019 she surpassed her colleagues’ application numbers, and was given champagne as a reward for having one of the highest conversion rates in the company.  

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Having accrued a significant amount of commission, McMahon emailed a member of the payroll team on 10 May 2019 to query why this had not been reflected in her latest payslip but received no reply. She then had a period of absence from 16 May to 30 May, and had a meeting upon her return in the company’s Rickmansworth office with former manager Mr Thomas. 

She told the tribunal that she wished to discuss several matters, including her working hours and her commission. She told Thomas that her working hours were “stressing her out” and making her ill, and that she wanted to reduce them. Thomas agreed to raise this with the directors. 

The following day, McMahon was due to attend an off-site monthly meeting with her colleagues, but was instead told by Thomas to attend the office. When she arrived, director Mr Harrocks was there to meet her and dismissed her without an explanation. However, Harrocks told the tribunal it was because her performance was “not up to par” with the standards and expectations of the business.

On 2 July 2019, having received no further communication, McMahon raised a grievance and set out that she had not been provided with reasoning for her dismissal, evidence supporting any reasoning, warning, time to prepare or an opportunity to be accompanied at the meeting. She also argued that a reasonable dismissal procedure was not followed. 

On 4 July, her grievance was dismissed and the firm claimed she had accepted the allegations and showed a “lack of interest”. The letter also expressed “surprise” at her complaint because no appeal had been submitted. 

Harrocks told the tribunal that he was unaware of McMahon’s previous conversation with Thomas, or that she had previously raised issues, but the tribunal found that Thomas had sent him a text message saying he couldn't recall the meeting or be absolutely certain because “she was always moaning”. 

The tribunal ruled that McMahon was a victim of unfair dismissal, wrongful dismissal and unauthorised deduction of wages. Employment Judge King said that it was clear that while she asserted a number of statutory rights to Thomas in her initial meeting, he merely felt she was “moaning”. 

“It is clear to me that [Heron Financial Services Limited] management considered that [McMahon] was a moaner [and] someone who complained. I believe that Harrocks was aware of these matters and that this was the reason or principal reason for the claimant’s dismissal.”

McMahon was awarded £19,552.33 for unfair dismissal and £2,736.38 for unlawful deduction from wages. She was also awarded £586.81 for unpaid commission and sick pay, and £252.41 for wrongful dismissal.

A spokesperson for Heron Financial Services declined to comment while the company awaits the outcome of an appeal. McMahon could not be reached.