400,000 pounds award for disability discrimination

Posted on July 25, 2011 by Martin Malone

Jonathan Jones was dismissed by his employer, Jewson, five months after he suffered a stroke. He was the branch manager of their Cardigan branch and had worked for the company for 22 years. His employer relied on incapacity as a potentially fair reason for dismissal. Unfair dismissal law provides that employment may be terminated on the ground of ill-health incapacity if it becomes clear that the employee is unlikely to be able to return to work in the reasonably foreseable future. Continue reading →

Twitter, Facebook and the like

Posted on June 23, 2011 by Martin Malone

Cases concerning the when and how of employee use of social networking sites (such as Twitter and Facebook) are now beginning to reach the employment tribunals.

No new legal principles are involved in deciding when and whether it is appropriate for an employer to discipline or even dismiss an employee for inappropriate use of these sites. But because the subject is likely to come up with increasing frequency it may be useful to draw attention to a couple of recent cases.

In the first (local) case an employment tribunal found that dismissal was within the band of reasonable responses open to pub chain Wetherspoons after it dismissed a shift manager at one of its pubs in Cheshire because she had posted insalubrious comments about two customers on Facebook. The customers concerned had abused the manager, a Miss Preece, when she was on duty. The abuse had continued afterwards in that Miss Preece was later subjected to anonymous telephone calls, including one in which she was told "get your f*cking P45 ready because you are out of here…". An important factor which led the tribunal to rule that the dismissal was fair was that Miss Preece had signed up to Wetherspoon’s formal email and social media policy which included an explicit statement to the effect that disciplinary action could be taken if any comments on Twitter, Facebook etc. should "be found to lower the reputation of the organisation, staff or customers" (Preece v JD Wetherspoons plc Liverpool ET on 18 January 2011).

However in another case a few weeks earlier an employment tribunal held that dismissal was not within the band of reasonable responses open to the Halfords chain of stores. Halfords had disciplined and then dismissed a deputy manager who had posted negative comments on Facebook. Mr Stephens had set up a Facebook page: "Halfords workers against working 3 out of 4 weekends". He sued for unfair dismissal, won and was awarded £11,350 compensation (Stephens v Halfords plc Torquay ET on 3 November 2010).

In this type of case, as in any "misconduct" unfair dismissal case, an employment tribunal will look at whether the employer went through appropriate procedures and will consider whether or not dismissal fell within the range of reasonable responses open to an employer in all the circumstances (and will not substitute its own view of what would have been reasonable). As many HR practitioners are aware, in carrying out this exercise an tribunal will apply three main tests, as follows:

At the time when he dismissed him, did the employer believe that the employee had been guilty of the misconduct?
Were there reasonable grounds for the belief?
Did the employer carry out as much investigation into the matter as was reasonable in all the circumstances of the case before dismissing the employee?

Subscribers should note that we have added a draft social media policy to the library of downloadable documents in the protected area of our website.

when does employment end?

Posted on May 23, 2011 by Martin Malone

It can be critically important in employment law to know when a person’s employment came to an end. This is mainly because there are strictly applied time limits for bringing certain claims in employment tribunals based on the date on which employment was terminated. For example, an unfair dismissal claim must normally be presented to an Employment Tribunal before the end of the period of three months beginning with the “effective date of termination”. The power of employment tribunals to extend the time limit is extremely limited, meaning that it can be very difficult to persuade them to do so.

For this reason, and for other reasons such as calculating the length of “continuous employment” required for accruing employment certain rights, it can be very important to be clear about how to ascertain the “effective date of termination”.

An EAT case in April 2011 has helped clarify this point. For many years it has been established law that where an employee is dismissed by word of mouth notice is deemed to start from the beginning of the day after it was given. This is because the law takes no account of fractions of a day so the day on which notice is given does not count. However, it has not been certain that the same rule applies where the dismissal notice was in writing, not least because written notices often specify the date on which the notice period starts and/or ends.

In the case in question, an employment tribunal had refused to hear an employee’s unfair dismissal claim because, according to the tribunal, the claim had been lodged one day out of time. The claim had been lodged on 2 May 2009. The employer pointed out that the emailed dismissal letter giving the employee three months’ notice of dismissal had been received by the employee on 3 November 2008. According to the employer this meant the effective date of termination was 2 February 2009 and the last day for filing an unfair dismissal complaint was therefore 1 May 2009. As the claim had been filed on 2 May it was out of time. The employment tribunal accepted this argument, refused to allow an extension of time and dismissed the claim.

The employee appealed to the EAT. He won.

In a fully reasoned decision the EAT made it clear that, unless there is some agreement or stipulation to the contrary, the same rule about when notice starts to run applies to written notices of dismissal as to verbal notices. So in both cases the default position is that notice starts to run at the beginning of the day after it is given. Therefore in this case the notice period ran from 4 November 2008, not 3 November, so the effective date of termination was 3 February 2009, not 2 February. The last day for filing an unfair dismissal claim was therefore 2 May 2009, meaning that the employee had filed his claim in time after all.

For practical purposes, a lesson to be learned from this case (Wang v University of Keele) is that it will generally be prudent for an employer to stipulate the intended date of termination in any dismissal letter. That will generally avoid any uncertainty. The other, more general lesson, for both employers and employees is to be fully aware of the great importance of the statutory time limits and the fact that they are generally very strictly applied by employment tribunals.

newsletter – possible changes to unfair dismissal and other law following BIS review

Posted on November 23, 2010 by Martin Malone

The length of service needed to qualify for unfair dismissal rights has been changed from time to time. It started at six months when unfair dismissal was “invented” in 1971. It was increased in 1980 to one year (two years for small firms of 20 or less employees) and then to two years (for employees of any employer regardless of size) in 1985. Then in 1999 it was reduced to the current one year (although rather confusingly the two year period was left, and still continues, for the right to claim statutory redundancy pay).

Newspapers have recently jumped on a remark made by Lord Young of Graffham on the BBC Today programme in which he said, under some pressure, that he would consider recommending to the Coalition government that the two year qualification period which operated from 1985 to 1999 should be reinstated. He noted in the BBC interview that “employment started shooting up again” after the qualifying period was increased to two years in 1985 (if you have speakers on your computer you can click to hear a rerun of the BBC interview with Lord Young).

It is worth noting this here as it would be easy to take Lord Young’s widely reported remarks out of context.

Lord Young was being interviewed following his appointment by the Prime Minister to prepare a new report “on how to make Government more small business and start-up friendly”. That appointment was confirmed in a document called “Backing Small Business” issued by the Department for Business on 1st November and it was that appointment which led to the BBC interview. The document itself contains the usual platitudes about how the “Government is committed to a comprehensive effort to prioritise small businesses and those that run or aspire to run them”, and of course is none the worse for that, but it is not concerned with employment law (there is a separate ongoing review of employment law), does not spell out any detailed proposals and certainly does not include any suggestion that there may be a change to the unfair dismissal qualifying period.

None of this means that reinstatement of the previous two year qualifying period of continuous employment for entitlement to unfair dismissal rights is out of the question but it does mean that Lord Young’s comments should not be taken out of context. Lord Young was keen to stress that he wanted the views of others on the matter and it is not a current proposal.

Of course, Lord Young rather burnt his boats as a result of his “never had it so good” and “so called recession” comments in a Daily Telegraph interview on 18 November.

For those interested the arguments in favour of and against increasing the qualifying period are along the following general lines:

In 1999, when it reduced the qualifying period from two years to one, the government’s view was that a year is a reasonable length of time for an employer to decide if a recruit is suitable for the job and that it is unreasonable for employees to be left in a state of uncertainty about the security of their employment for longer than that. It was also thought that a two year qualification period inhibited mobility – if it takes you two years to qualify or requalify for unfair dismissal rights you will think long and hard before changing jobs.

The counter argument is that requiring only a short period of qualification for obtaining unfair dismissal rights encourages employers not to take on additional staff at all. This argument was effectively the basis on which the House of Lords ruled in February 2000, in the then much publicised Seymour Smith case, that the previous two year qualification period had been “objectively justified” during the recession in 1991 even though it was sex discriminatory in that fewer women than men could qualify.

unfair dismissal and misconduct

Posted on June 17, 2010 by Martin Malone

A couple of recent unfair dismissal cases have thrown new light on unfair dismissal law.

The first shows that an employer has a wide discretion as to whether to postpone internal disciplinary proceedings when there is an ongoing police investigation into the same allegations.

A prison officer (a Mr Mansfield) was accused of orchestrating violence among prisoners and planting drugs on them. An internal investigation was started in April 2006 and he was suspended on full pay. Eventually, after rather over a year, he was dismissed. He claimed unfair dismissal and won, essentially because the employment tribunal which heard his case considered that the delay in dismissing him was “lengthy and unacceptable”.

The employer, effectively the Prison Service, appealed to the EAT and has won.

What was crucial was the reason for the delay. This was that there was an ongoing police investigation into Mr Mansfield’s conduct. The EAT said “We consider that a decision maker forming a view on whether disciplinary proceedings should be continued alongside a criminal investigation has a wide discretion“. There was no basis for the Employment Tribunal to have held that the delay meant that Mr Mansfield’s dismissal was unfair.

The second case shows that the seriousness of the consequences for the employee of a finding of unfair dismissal can be taken into account in deciding whether an employer’s investigation into alleged misconduct was fair and adequate and therefore in deciding whether a dismissal was unfair.

A Filipino nurse, Ms Roldan, was employed by the Salford Royal NHS Foundation Trust from July 2003 until her summary dismissal for misconduct (mistreating a patient) in October 2007. She brought an unfair dismissal case. She won in the employment tribunal but the Trust appealed and the EAT ruled that the case should be sent back for rehearing. Ms Roldan appealed to the Court of Appeal and has won.

In coming to its conclusion the Court of Appeal pointed out that in deciding whether a ‘conduct’ dismissal is fair or unfair one of the important questions to be considered is whether the employer carried out as much investigation into the matter as was reasonable. In this case this would include taking into account that the employee had given service to the employers over four years, apparently without complaint and, significantly, that there would be a real risk that her career would be blighted by the dismissal if it was found to have been fair. A finding that the dismissal was fair would certainly lead to her deportation and destroy her opportunity for building a career in this country.

Accordingly the Court of Appeal restored the decision of the original tribunal that the dismissal was unfair. You can read more about this case in this blog post.

inconsistent to use “fair blame policy” and then dismiss for gross misconduct

Posted on March 25, 2010 by Martin Malone

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.

disciplinary hearings – bring a lawyer?

Posted on February 2, 2010 by Martin Malone

We have commented on several occasions in our newsletter about the practical problems which have been encountered in implementing the provisions of the Safeguarding Vulnerable Groups Act 2006. The Court of Appeal has again visited the issue in the case of G -v- Governors of X School. “G” was a music assistant at a primary school and he was dismissed following an allegation that he had kissed and had sexual contact with a 15 year old boy who was attending the school for work experience. G asked for legal representation at his internal disciplinary hearing and, as might be expected, his request was refused. However, the Court of Appeal disagreed because the disciplinary process might result in a referral to the Secretary of State for Children, Schools and Families which, in turn, could result in him being deemed unsuitable to work with children. This engaged Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to a fair hearing) because the effect of the decision might be to prevent him from working with children in future. The Court of Appeal took the view that the disciplinary proceedings were “a determinant of the claimant’s right to practise his profession”. That being so the claimant was entitled to legal representation if that was his choice.

The practical effect of the decision is that not all employees have the right to legal representation at all disciplinary proceedings. However, if the result of the disciplinary process might affect the ability of the employee to work in their profession, the right to legal representation will apply. This is consistent with prior decisions concerning doctors and dentists and represents a significant change in the way in which employers should respond to requests for legal representation.

Although not dealt with in the latest decision of the Court of Appeal, it follows that if the employee is entitled to legal representation at an internal disciplinary hearing, so is the employer. If any employers are facing this situation they would be foolhardy to allow a disciplinary hearing to proceed without their own legal representation. If you are an employer facing disciplinary proceedings which might affect the ability of the employee to pursue their career, please contact us. This issue has not been widely reported and the implications for employers who do not take appropriate precautions could be severe. Consider a claim for loss of earnings in which the former employee bases a claim on loss of ability to pursue a chosen career!

selection for redundancy and applying the law to the facts

Posted on January 6, 2010 by Martin Malone

The Employment Appeal Tribunal has recently considered the problems which can arise when identifying a candidate for redundancy in C Short –v- P J Hayman & Co Limited.

Ms Short was employed as a claims manager in the employer’s travel insurance business from 1997 to 2006. Following her return from maternity leave in 2000 she worked four days per week and was paid pro rata. She tendered her resignation in July 2001 but was persuaded to stay on the basis that her salary was increased to £25,000 p.a. This salary equated to the rate payable for someone working five days per week. The employer maintained that there was an agreement that Ms Short would work four days at the office and one day from home each week. Ms Short disputed this. She raised a grievance and, on appeal, it was confirmed that she was employed to work four days per week although she was paid on the basis that she worked five days per week.

The employer lost a major contract with Age Concern in March 2007. As a result of a staffing review the employer decided that the department could be run without a claims manager. As a result, all staff in the department were advised that they were at risk of being made redundant. Ms Short was notified about three possible alternative posts. However, Ms Short was not placed in a pool of managers who were at risk of being made redundant. At the tribunal the employer maintained that this was not appropriate because, according to the tribunal, “all the other managers were running departments of a different nature such as sales or accounts, and there was no diminution in the workload of those departments and the skills required by those managers were different”.

The tribunal rejected the claim for unfair dismissal because there was a genuine redundancy situation and the employer “was justified in identifying the Claimant for potential redundancy without looking for a wider pool”, relying on the reasons given by the employer. A claim for indirect sex discrimination relating to part-time working arrangements was also dismissed.

On appeal it was contended that the tribunal had failed to spell out the legal principles it relied on and how they were applied to the facts. The relevant law is found in section 139 of the Employment Rights Act 1996 (have the requirements of the business for employees to carry out work of a particular kind ceased or diminished or are they expected to cease or diminish) and section 98(4) of the same Act (overall fairness of the decision taking into account the size and administrative resources of the employer). It is worth pointing out that these are basic issues in all unfair dismissal claims concerning redundancy. In this case, the real problem was that the tribunal had simply set out its conclusions on the facts but had not set out the relevant principles of law or explained how they applied to the facts. Nonetheless, the EAT took the view that it was clear that the tribunal had the legal principles “in mind” and that they had been applied to the facts, albeit not explicitly. As a result the tribunal was entitled to conclude that the employer no longer needed a claims manager and that the post held by Ms Short was unique. Accordingly her appeal failed.

It often appears that the odds are stacked against employers when attempting implement a fair dismissal, both in terms of the reason for terminating the employment and the procedures applied. However, this case shows that it’s often best to stick to the basics. If there is a genuine and potentially fair reason for dismissal and the employer follows, on an informed basis, what it believes to be a fair procedure then that should be sufficient. As for the tribunal, it ought to have explicitly identified and applied the relevant legal principles but failure to do so was not fatal. Incidentally, as might perhaps be expected, the decision of the EAT is a model of a well set-out judgment!

BIS Guide to avoiding discipline and grievance issues at work

Posted on October 9, 2009 by Martin Malone

The Department for Business Innovation and Skills has, in conjunction with the Chartered Intitute of Personnel Development and ACAS, produced a new guide outlining procedures for dealing with discipline, dismissal and grievance procedures. The guide can be downloaded here. Although the ACAS Guide should still be the primary point of reference (since this is the one which tribunals are required to consider), nonetheless the BIS guide is a handy summary of the online resources available for employers.

There is a similar guide available for employees.

beware of dealing with the media

Posted on August 14, 2009 by Martin Malone

In L E Vantinnen-Newton -v- Geo Group UK Limited the Employment Appeal Tribunal, in overturning the decision of the tribunal, has yet again reminded employers that it is not enough simply to apply the rules when it comes to dismissal. Any decision to dismiss must be informed and, in misconduct cases, the employer must demonstrate the steps taken to establish the misconduct.

This may seem obvious but this case demonstrates why relying on procedures too heavily can cause an employer to take their eye off the ball. From the employee’s perspective it is a useful reminder that even the most innocent and apparently innocuous contact with the media can come at a high price in terms of sanctions in employment.

Revd. Vantinnen-Newton was head chaplain at the Campsfield House Immigration Detention Centre which was run by the Geo Group. He was dismissed for gross misconduct in November 2007 after giving a short interview to BBC Radio Oxford as part of a broadcast called “Faith in the workplace”. He did so without authority from the employer. The staff hanbook included the following instruction:

“Dealing with the media: No employee of Geo is authorised to make any comments or give any interviews to the media without prior and express permission of the managing director. Any employee who is approached by any media must refer the person to a senior manager at the earliest opportunity.”

Revd. Vantinnen-Newton gave the interview on 17 July. He informed his line manager on 19 July that he had given the interview, that it was due for broadcast on 22 July and that he should “look out for it”. As it happens the interview was not broadcast until 29 July. In the meantime no attempt was made by the employer to discover the content of the interview or even to contact the radio station. No-one in authority either heard the recording or read a transcript of it before Revd. Vantinnen-Newton was dismissed. However the employer did notify the UK Border Authority about the matter. In the words of His Honour Judge Reid QC in the EAT: “There is no evidence that anyone at the Home Office or the UK Border Authority displayed the slightest interest in the broadcast either before or after the event, still less that it had any repercussions for [Geo]“.

Revd. Vantinnen-Newton raised a grievance about his suspension, describing it was “unwarranted, hasty, demeaning, intimidating and vindictive”. Thereafter and as is so often the case with concurrent disciplinary and grievance procedures, the matter became bogged down with technical and procedural issues. The upshot was that Revd. Vantinnen-Newton did not attend the disciplinary hearing following which the decision was taken to dismiss him for gross misconduct. An appeal was unsuccessful.

In the tribunal it was held that the employer was entitled to take a “strict” view of the matter so that the action taken by the employer, although perhaps harsh, was within the range of reasonable responses available to a reasonable employer. The EAT disagreed. Although taking the view that the chaplain should have known that what he was doing was wrong in the context of the employer’s rules, the employer could not reasonably maintain that the interview was likely to bring the Company into disrepute if no representative of the employer (let alone those involved in taking the decision to dismiss) had even heard the interview. Accordingly Revd. Vantinnen-Newton was unfairly dismissed. However the tribunal had taken the view that if he was unfairly dismissed then he should be regarded as having contributed to his dismissal to the extent of 85% and the EAT agreed with this assessment.

One of the most frequently used authorities in unfair dismissal cases is British Home Stores Limited -v- Burchell and, although dating back to 1978 it was again of direct relevance in this case. It is worth mentioning the key guidance in that decision once again:

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would itself have shared the view in those circumstances.”