dismissal fair even though conduct not "reprehensible"

Posted on January 26, 2012 by Martin Malone

The decision of the Employment Appeal Tribunal in RBS v Donaghay has clarified a question which may not be obvious at the inception of disciplinary proceedings but often emerges in the course of the process: if an employee is to be dismissed for misconduct, does that conduct need to be what would be generally regarded as "reprehensible"? There is also a chain of case law which makes the question relevant in such circumstances.

According to the Oxford English Dictionary "reprehensible" means "deserving censure or condemnation".

As an aside, the summary of the judgment posted on the Employment Appeals Tribunal website includes the word "esto" which is an obscure Scottish legal term (the employment tribunal was in Glasgow) and means "a technical term used in written pleadings used to introduce a secondary line of defence which accepts, only for the sake of argument, facts which are still disputed in the primary defence".

After a little diversion to deal with semantics, Mr Donaghay was a customer services adviser who was in a relationship and lived with another RBS employee, known in the proceedings as "LC". The facts of the case are set out in the decision:

"On Saturday 3 January 2009, the Claimant went out drinking with friends whilst LC remained in the flat. He returned late in the evening or in the early hours of 4 January. An argument took place between the Claimant and LC which culminated in him admittedly pushing her so as to cause her to fall onto the sofa. He then left but, having done so, tried to get back into the flat and caused a disturbance by shouting, swearing and kicking the front door so as to force his way back into the flat. Continue reading →

unfair dismissal as a result of claiming to have been unfairly dismissed

Posted on September 26, 2011 by Martin Malone

The case of M-Choice UK Limited -v- Aalders, which was recently considered by the Employment Appeal Tribunal, demonstrates the complexities which can arise when trying to establish when someone was dismissed. The date of termination can be vital in determining whether or not a claim of unfar dismissal can be maintained.

Ms Aalders commenced employment with M-Choice on 1 February 2010. She was entitled to six months’ notice of termination of employment. On 26 July 2010 she was sent a letter which purported to give notice of termination, stating “as from 26 July 2010, ending the work relationship as per (sic) 1 February 2011 at the latest”. Continue reading →

pay cuts and dismissal

Posted on August 14, 2011 by Martin Malone

In the current economic climate, it is an unfortunate fact of life that employees are facing numerous constraints concerning pay and benefits. Pay freezes are commonplace and several councils have made the news by requiring employees to accept pay cuts or face dismissal. As a general principle, the unilateral imposition of material contract variations which are detrimental to employees can entitle the affected employees to resign and claim breach of contract and constructive unfair dismissal.

In a decision which will be welcomed by employers, the EAT has recently clarified that when deciding whether or not dismissal of an employee for refusing to accept a pay cut does constitute “unfair dismissal”, the question to be considered is NOT the reasonableness of the stance adopted by the employee. Rather it is whether the employer acted reasonably in dismissing the employee for refusing to do so. Continue reading →

TUPE and fact dependant appeals

Posted on August 14, 2011 by Martin Malone

An interesting “TUPE question” came before the EAT in July. The case is Nottinghamshire Healthcare NHS Trust v (1) Hamshaw & Ors (2) Perthyn (3) Choice Support, EAT on 19 July 2011.

Hillside House was a care home in Bassetlaw run by Nottinghamshire Healthcare NHS Trust. The seven residents were supported by healthcare assistants, who in turn were managed and supervised by qualified nursing staff. Residents were monitored and managed on a 24 hour basis with active night staff. All the staff, 18 in total, were employed by the Trust.
Continue reading →

do you need to pay an employee who is held in custody?

Posted on July 19, 2011 by Martin Malone

The normal rule is that an employee who is ready and willing to work but is unable to do so by reason of sickness, injury or other unavoidable impediment will, if his contract continues and subject to its terms, still be entitled to pay.

In a recent case an employee, perhaps somewhat cheekily, argued that this meant he was entitled to pay for a period when he was prevented from coming to work because he had been remanded in custody Continue reading →

a sign of the times: much news about redundancies

Posted on July 19, 2011 by Martin Malone

Although sometimes used as a euphemism for dismissal, “redundancy” is nothing of the sort. It is a reason for dismissal, which may of course be fair or unfair dismissal. Three recent cases have shown that the Employment Appeal Tribunal will take a practical, pragmatic view of what is fair and unfair. The first two are concerned with selection of employees for redundancy dismissal and the third concerns consultation obligations. Continue reading →

health and safety: the return of “common sense”?

Posted on July 19, 2011 by Martin Malone

On the one hand, the Health and Safety Executive is becoming increasingly sensitive to suggestions that the way in which it enforces health and safety rules is excessively pernickety and can lead to red tape stifling initiative and supplanting common sense. It is currently conducting a high level campaign to bring proportionality into centre stage. Two recent examples are the public spat between the HSE and the tennis authorities and a recent HSE consultation on “proposals for replacement arrangements for adventure activities”. Continue reading →

principles for uplifting compensation and calculating loss of earnings

Posted on July 19, 2011 by Martin Malone

The general purpose of damages and compensation in civil cases in UK law is (so far as money can do so) to put the winner of a case as nearly as possible in the position he would have been if he had not been wronged. Hence compensation is generally unlimited, although there are, of course, statutory limits in certain cases, such as the cap on the compensatory award that an employment tribunal can order in unfair dismissal cases (currently £68,400).

The Court of Appeal has recently given new guidance on how courts and tribunals should approach two particular issues which can arise in the calculation of compensation in employment cases Continue reading →

Dismissal for religious belief or how that belief is manifested?

Posted on January 26, 2011 by Martin Malone

The Equality (Religion and Belief) Regulations 2003 (now part of the Equality Act 2010) were introduced, as the name suggests, to protect against discrimination on the grounds of religion or a belief system.

In Power -v- Greater Manchester Police Authority the Employment Appeal Tribunal considered the dismissal of Mr Power, a committed spiritualist, who worked as a Special Constabulary Trainer. Shortly after he started his job his employers discovered that police officers had complained that, in his previous work, he had been disruptive and unhelpful on training courses and that he had been distributing CDs and posters about spiritualism.

He was called to a meeting with an HR manager following which he received a letter notifying him that his employment was terminated with immediate effect. The letter included the following:

Information has come to light regarding previous work with Neighbouring Forces and your current work in the psychic field which is not compatible with employment in Greater Manchester Police. I can confirm that if this information had been made available to us prior to you joining the force as a member of police staff, we would not have offered you employment.”

Mr Power presented a complaint of discrimination to an employment tribunal and lost. The tribunal found that he was dismissed not because of the beliefs he held but because his previous conduct showed that he was unsuitable to train police officers and the distribution of the CDs and posters, although related to his beliefs, was an unacceptable way of expressing those beliefs. Incidentally, it is interesting to note that this is not quite what the letter of dismissal says as shown above. However, when he appealed against his dismissal he was told that the phrase “work in the psychic field” referred not to the belief held by him “but on the basis that the material [distributed] was inappropriate”. The distinction is critical because, on appeal, the EAT agreed with the employment tribunal and confirmed that Mr Power was dismissed, not because he was a spiritualist and did work in the psychic field, but because of how he manifested his beliefs by distributing the material.

Did it make any difference that the belief in question was spiritualism? That issue is not addressed in the decision but it would be interesting to see how the activities of an evangelical Christian might be regarded in similar circumstances. Such an individual would be expected, as part of his or her belief, to “spread the word” with a view to encouraging people, presumably including those encountered in the workplace, to become fellow evangelical Christians. The word evangelism is derived from the Greek words to announce good news, bring a good message or preach the Gospel.

Yet again the application of the Regulations (now within the Act) brings with it the uncomfortable overlap between moral questions, including those concerning freedom of expression of faith, and application of the law in a largely secular society.

newsletter – tribunal decisions are final unless there is a point of law

Posted on December 20, 2010 by Martin Malone

The loser in a case before an employment tribunal is often very tempted to appeal simply because they lost. A recent case is a salutary reminder of the important point that that is generally not enough – an appeal can only be made on a point of law.

As most employment tribunal cases turn on questions of fact and as the decision of the tribunal is final on matters of fact (save in those few cases where the decision was “perverse” or was so defective that justice requires the matter to be remitted back for rehearing), it follows that in most cases there is no point in appealing against an employment tribunal’s decision. Of course, if pressed to do so, those acting for the losing party will try to find a point of law on which to hang an appeal. Advisers are generally well aware that a “perversity” argument is unlikely to succeed (except in the most extreme cases) so they may attempt a more sophisticated approach – for example in discrimination cases it is not uncommon for an appeal to be presented on the basis that the employment tribunal wrongly applied the rules relating to the burden of proof as this can sometimes be a way of getting around the difficulty. In general if arguments of this sort are really no more than dressing up a point of fact as a point of law the appeal will be dismissed without a full hearing – it will get no further than the preliminary “sift” stage at the appeal tribunal.

Nevertheless some litigants persist. It has to be said that the appeal tribunal generally leans over backwards to give them a fair hearing but at the end of the day it must apply the law. And that says the Employment Appeal Tribunal has jurisdiction to hear appeals only on points of law (Employment Tribunals Act 1996 s.21).

In the recent case noted above an agency worker, Ms Arrowsmith, was interviewed for a post at Nottingham Trent University, where she worked. She did not get the job. She brought a sex discrimination claim against the University saying she was rejected because two members of the panel which interviewed her knew that she was pregnant. The critical question in the case was whether those two members of the panel (or either of them) knew that the she was pregnant at that time. Clearly this was a question of fact. After a four-day hearing, the Nottingham Employment Tribunal, faced with a straight conflict of evidence between the the two sides (claiming and denying knowledge of her pregnancy on the panel members’ part) found in the University’s favour.

Ms Arrowsmith went on to use all avenues available to her to contest that decision. Including the original hearing her case eventually had no less than seven judicial hearings, five of them at the Employment Appeal Tribunal. However no point of law was involved. The question of whether any of the interview panel members knew that the she was pregnant was simply a matter of fact for decision by the original tribunal. The EAT judge concluded by adopting words used by a judge in the Court of Appeal in a different case, saying “I feel that like many highly intelligent non-lawyers, the applicant puts a great deal of faith in detail and in complexity. This is actually a quite simple case.”

While only indirectly relevant, given that an appeal can only be on a point of law, it is worth noting the slight oddity that the Employment Appeal Tribunal normally consists of two non-lawyer members as well as a legally qualified judge. Indeed, perhaps even odder, it is theoretically possible for the two lay members to overrule the judge - indeed this actually happened in a case called Moores v Bude-Stratton Town Council EAT [2001] ICR 271.

The moral is clear: employees who are dissatisfied with the judgment of an employment tribunal, even those who have so far dispensed with the services of a professional advocate, should be careful to take and heed proper legal advice before deciding to mount an appeal. Otherwise they may face an expensive, time consuming and stressful experience which turns out to be completely pointless.

Coincidentally, shortly after the note above was written, a new Court of Appeal judgment became available on line, stressing the point that an appeal from an employment tribunal cannot be made against a finding of fact (Clarke v Zurich UK General Services Ltd [2010] EWCA Civ 1333 on 26th November 2010).