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West London Mental Health trust operated a “fair blame policy”, an informal procedure designed to deal with fairly low level breaches of conduct. the Trust had received complaints about Mr Sameer Sakar, a consultant psychiatrist, alleging conduct which was “harassing and distressing” and had the effect of leaving other staff “vulnerable and intimidated”. Following an investigation the Trust commenced its informal procedure. However, while the investigation was continuing Mr Sakar was alleged to have engaged in further inappropriate conduct including making an abusive telephone call, acting aggressively towards a security guard and complaining to a professional body about a colleague who had herself complained about him.
The sanction of unfair dismissal was not available under the informal procedure. However, the process broke down at a meeting at which the Trust’s director said that she would send a report about Mr Sakar’s behaviour to the GMC. There followed a disciplinary hearing which led to Mr Sakar’s dismissal for gross misconduct.
An employment tribunal found that Mr Sakar was unfairly dismissed because the fair blame policy implied that the conduct complained about was relatively minor so that summary dismissal would not be an appropriate response. The tribunal also found that the Trust’s director had frustrated the fair blame process by indicating that she would send a report to the GMC.
The Employnment Appeal Tribunal overturned the tribunal’s decision on the basis that it had not taken all relevant matters into account and by substituting its own view of the matter in place of that of the Trust.
However the Court of Appeal disagreed. the tribunal was entitled to conclude that it was inconsistent for the Trust to use the fair blame policy and then commence a process which led to dismissal for gross misconduct. This course of action was not within the range of reasonable responses available to the employer. In addition, the tribunal was entitled to take the view that the additional matters which arose after the commencement of the fair blame process were of a relatively minor nature.
What would have been the outcome had the fair blame process not been used? It’s impossible to say but it is clear that the decision to use the process was a material factor leading to the finding of unfair dismissal. Employers should be careful to ensure that procedures designed to operate in addition to the ACAS guidelines do not have the effect of creating unforeseen traps.
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fit notes replace sick notes in April: http://bit.ly/b0qPqK via @addthis
Under the TUPE regulations, on acquisition of a business or undertaking employers automatically take on employees working in that business or undertaking. Their employment contracts “have effect after the transfer as if originally made between the person so employed and the [new employer]“. As a general rule the new employer cannot change the terms of those contracts. So what happens when the employment contracts provide for salaries to be as negotiated from time to time by the original employer (or an employer’s organisation) with a particular trade union?
The Court of Appeal has recently given a definitive answer to this question. A Mr Alemo-Herron and his fellow claimants worked for Lewisham LBC. Their terms and conditions of employment were subject to collective agreements made from time to time between Lewisham and the National Joint Council for Local Government Services (NJC). In 2002 their employment transferred under TUPE to a company called CCL and again in 2004 to Parkwood Leisure. CCL awarded pay increases in line with post-2002 NJC agreements and (without acknowledging any liability to do so) so did Parkwood in 2005. However, Parkwood refused to award pay increases in line with a 2007 agreement negotiated between Lewisham and the NJC.
Mr Alemo-Herron and other employees sued. When their case came before the EAT, they won. The EAT held that Parkwood was obliged to give effect to the pay increase agreed between Lewisham and the NJC in the 2007 collective agreement despite the fact that it was negotiated after the date of the transfer and despite the fact that Parkwood had nothing to do with the negotiations. The EAT reasoned that it was a contractual term that successive collective agreements would increase pay. There was no basis for discontinuing this practice, the TUPE regulations clearly applied and so the employees won.
Parkwood appealed to the Court of Appeal. The judges there took a different view. They considered that the relevant part of the TUPE regulations could be given either a “static” interpretation, as had been given by the EAT, or a “dynamic” interpretation. They favoured the latter. The Court of Appeal pointed out that in a similar case in 2006 the European Court of Justice had given a “dynamic” interpretation to the relevant part of the EC Acquired Rights Directive, pursuant to which the British TUPE regulations were made (Werhof v Freeway Traffic Services GmbH and Co KG ECJ 2006 in which the ECJ ruled that changes in a collective agreement between a worker’s organisation and the transferor employer made more than 12 months after what in the UK would be called a TUPE transfer were effectively not covered by the Acquired Rights Directive).
Although it is possible for British regulations to “gold plate” EC rules and thus provide employees with more protections than the minimum required by EC directives, the Court of Appeal found there was nothing to require the TUPE regulations to be interpreted in such a way in this case. Accordingly it followed the lead of the European Court of Justice (which, incidentally, pursuant to the recent Lisbon Treaty, is now technically called the “Court of Justice of the European Communities”). Overruling previous decisions to the contrary the Court of Appeal thus held in effect that if an employee’s employment is transferred to a new employer by reason of a TUPE transfer and his or her terms of employment incorporate terms of a collective agreement to which the new employer is not a party, the new employer does not need to give effect to subsequent pay increases agreed under that collective agreement.
So this time British employers, who traditionally worry about the impact of EU law on British employment law, will want to give at least two cheers for the European Court. It clearly paved the way for a decision by our Court of Appeal which employers will applaud.
As from 6 April 2010 the various forms of workers’ sick note (also known as a medical certificate or a doctor’s statement) are to be replaced by a single fitness for work medical certificate or “fit note“.
The basic law is not changed. As now, from the eighth day of sickness absence employers will be able to require employees to provide formal medical evidence about their sickness to support a claim for Statutory Sick Pay (similar evidence is also required for claiming health related State benefits). Traditionally this has been done by the employee providing evidence in the form of a “sick note” from a doctor.
The general idea is that the new medical certificate will enable the doctor to say that a person may be fit for some work rather than simply that they are not ready to resume normal work.
The detail, including the wording of the new “fit note”, is contained in regulations (the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010, SI 2010/137). The regulations set out a form of medical certificate headed “Statement of Fitness for Work for Social Security or Statutory Sick Pay”. The main operative part, signed by the doctor and providing a space for notes, provides:
“I advise you that: you are not fit for work OR you may be fit for work taking account of the following advice: If available, and with your employer’s agreement, you may benefit from: a phased return to work; altered hours; amended duties / workplace adaptations”.
The government hopes that the change, which follows last summer’s extensive government consultation on “Reforming the Medical Statement”, will save the economy £240m over the next ten years by aiding the recovery and return of sick workers and maintaining their skills.
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In 1957 the Franks Report set out characteristics which should be reflected in tribunal procedures. In addition to the key requirements of openness, fairness and impartiality, tribunals should provide a fair hearing at which citizens can state their case without the need for legal representation and at hearings conducted with an appropriate degree of informality.
I was reminded of these guidelines when reading the recent decision of the Employment Appeal Tribunal in the case of Baker -v- Metropolitan Police Commissioner. Mr Baker appealed against the decision of an employment tribunal to refuse to hear his claim of disability discrimination and dismissing his claim of victimisation under the Race Relations Act 1976. He is a black man of British origin who suffers from dyslexia and failed part of his police training. He claimed that he was subjected to racist abuse while at a police training centre.
It is now necessary to complete a prescribed form (ET1) in order to submit a claim to an employment tribunal. Mr Baker did not initially have legal representation and he completed the form himself. He claimed race discrimination and ticked the box for disability discrimination although he did not provide particulars of the alleged disability discrimination. After doing so he was dismissed when he failed to report for training. He filed two further ET1s which particularised the claims of race and disability discrimination.
The tribunal found that he not claimed for disability discrimination in his first ET1 because he had not provided any particulars and the disability discrimination claims in the subsequent ET1s were dismissed on the merits or because they were out of time. Perhaps surprisingly, the EAT found that the employment tribunal was entitled to conclude that there was no disability claim presented in the first ET1 because its decision in this regard was neither in error nor perverse. However, it was suggested that a review of the form’s wording might be helpful in order to enable a claimant to identify “more precisely” the type of discrimination complained about.
However, the tribunal had erred in refusing to hear and determine an application to amend the first ET1 to “re-label” the events as falling within the scope of the protection afforded by relevant provisions of the Disability Discrimination Act and this issue was referred back to the tribunal to be considered afresh.
Although undoubtedly not the initial intention, the technical rules which govern the administration of such cases make them much more complicated than the majority of county court cases. Add to this the technical complexity of employment law in general and it is verging on farcical that claimants should be expected to conduct their own claims without legal representation since legal costs are not generally recoverable. On the other hand, county courts are more occupied with simple road traffic accident claims than any other type of matter. These cases very rarely raise issues of any technical complexity, as demonstrated by the new forms based system for processing them which comes into effect on 30 April. Surely the time has now come to have the road traffic claims dealt with in a tribunal process with relatively low fixed costs and to transfer employment cases to the jurisdiction of the county court where reasonable legal costs can be recovered. There is no longer an issue concerning access to justice on the basis that lawyers would continue to offer no win no fee representation with after the event insurance to provide cover for liability for adverse costs. For employers, there would be the considerable benefit of dissuading former employees from lodging speculative or vexatious applications.