The employment tribunal in London South has made an award of £56k to gymnast coach Elena Botina for unfair dismissal. Ms Botina claimed unfair dismissal under the Employment Rights Act 1996 for asserting her statutory rights to pay slips and a contract. What are the lessons that HR can learn from the case?
Elena Botina, a former professional rhythmic gymnast from Belarus, began her relationship with Friendship Society Limited in March 2017. Initially, Ms Botina volunteered at Friendship Society Limited, receiving travel and living expenses until October 2018.
At this point, it was agreed that she would transition to a paid role. Ms Botina returned to Belarus whilst British Gymnastics, a separate organisation, worked to sponsor Ms Botina’s visa.
It was planned she would work on a three-year fixed-term contract at the club.
On 7 December 2018 Ms Botina received a tier two sportsperson’s visa, and she returned to the U.K. to start a week later. The two parties had agreed on a salary of £31,200 per annum; however, the claimant in fact received far below this figure.
Firstly, the respondent illegally deducted the costs associated with her sponsorship from her pay. These included the cost of her immigration skills charge, certificate of sponsorship, and application fee for a national insurance number.
These cost the claimant over £1,300. Additionally, instead of receiving a fixed monthly salary, Ms Botina was paid an hourly rate of £15 per hour.
This rate of pay would have equalled her salary based on her working a 40-hour week, but her hours often fell far short of this – in her worst month she earned only £677.
By September 2019, Ms Botina realised her earnings were significantly lower than agreed. She therefore applied her statutory rights to a contract and payslips to investigate further.
Upon receiving a copy of her contract, she discovered the start date had been incorrectly set to 1 February 2019.
Her boss in fact claimed she had been volunteering up until then. At this point, the claimant questioned her missing wages and the deductions made for her sponsorship.
Claims of Gross Misconduct
It was just after this time that the board of directors of the gymnastics club became increasingly critical of Ms Botina’s conduct.
They alleged that Ms Botina disregarded advice from senior staff and failed to adhere to British Gymnastics’ training standards.
In particular, they claimed in the tribunal that she had been seen overstretching the children. This is a dangerous training form that can lead to permanent injury in adulthood and is strictly banned in the U.K..
During the tribunal, they also claimed that Ms Botina was unpopular with customers. A fellow coach claimed to have seen Ms Botina shout aggressively, with the child subsequently sitting out for two hours.
The defence claimed this was leading them to lose business. For example, in November 2019 two members of Botina’s group left to join a rival club.
The claimant was accused of criticising the club’s coaches and advising the members to leave.
On 1 December 2019 Ms Botina received a letter informing her that she had been dismissed with immediate effect. No explanation was given in the letter as to why she had been dismissed, nor was she spoken to about it.
Judge’s Findings
Employment Judge Patricia Tueje ruled in favour of Ms Botina, concluding that her dismissal was primarily due to her assertion of statutory rights.
Additionally, she found that Ms Botina had in fact started employment in December and not February.
On a balance of probability, I find the reason or principal reason Ms Bolotina was dismissed was because she requested a contract showing her start date as 1st February 2019 and pay slips for December 2018 and January 2019.
Judge Tueje.
The claimant was awarded a total of £56,202. The majority of this, £32 000, was made up of one year’s lost earnings. Additionally, illegal deductions from Ms Botina’s pay during the employment contributed £16,643 to the award.
Poor Defence
The respondent’s defence was severely hindered by a lack of evidence. There was no documentary evidence to support that the employment would start in February instead of December.
Additionally, the claims of gross misconduct were poorly justified by the respondent.
There was no record made at the time of Ms Botina’s alleged bad coaching methods, nor was she ever disciplined for it. Instead, they relied almost solely on witness testimony during the trial.
Whilst the respondents did demonstrate that Ms Botina’s group shrank during her time, they were not able to link this to Ms Botina’s conduct.
Instead, the claimant used emails from customers to show that parents had been pleased with her coaching and that the children had left for other reasons, such as to focus on school.
The respondents also claimed that Ms Botina had not mitigated her losses. However, the evidence they used to prove this was not persuasive to the judge.
They relied on adverts for gymnastics coaches from 2023 to show that she could have applied for other jobs in December 2019. However, given she was dismissed shortly before the pandemic, it was not a comparable situation.
The judge instead found that the pandemic severely limited Botina’s ability to find new work, awarding the maximum award in the lost earnings category.
Learnings
Employers must recognise the critical importance of upholding statutory rights. Dismissing an employee for asserting these rights will automatically be deemed unfair dismissal by employment tribunals.
This serves as a reminder for businesses to ensure compliance with employment law and to handle disputes with transparency and fairness.
Furthermore, the case highlights the importance of meticulous documentation in HR processes.
The defence of Friendship Society Limited faltered due to a lack of documentary evidence supporting their actions.
Without proper records to substantiate their claims of misconduct, the respondents were unable to persuade the judge of those claims.
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