unreasonable prior warnings can make a dismissal unfair

Posted on March 28, 2013 by Martin Malone

Where an employee is dismissed for misconduct and there was a live final warning on their disciplinary record which appears, on the evidence, to have been “manifestly inappropriate”, then a tribunal should not just look at whether the employer has taken a reasonable approach to the event triggering dismissal, it must also look back and consider whether the final warning was fairly given as well: so says the Employment Appeal Tribunal in Simmonds v Milford Club.

A steward at a private club (how many employment cases have featured stewards in private clubs!) was dismissed for disobeying an instruction to give all staff a bottle or bottles as a Christmas bonus; he gave them a cash gift instead. The sanction was settled on because he already had a current final warning, for letting his wife deposit takings at the bank instead of doing it himself.

The Employment Tribunal to which he took his case felt that the bonus issue alone would not justify dismissal, but that taking into account the earlier warning, it was fair to dismiss. With regard to that warning, they found as a fact that the steward had never been told not to allow anyone else to bank the takings, but thought he ought to have worked that out from his previous experience as a pub landlord.

The Employment Appeal Tribunal rejected this assumption. If an Employment Tribunal has reason to consider that a material previous disciplinary sanction may have been manifestly inappropriate, it should hear evidence and decide on the relevant facts whether the sanction applied was manifestly inappropriate.

The Honourable Mrs Justice Slade explained the correct approach in such circumstances as follows: Continue reading →

range of reasonable responses – fairly dismissed although cleared by professional body

Posted on December 21, 2012 by Martin Malone

There is nothing particularly startling or new about the decision of the Employment Appeal Tribunal in Bryant v Sage Care Homes Limited. However, I’ve decided to comment on the case because it provides some useful reminders of the general principles that apply when dealing with unfair dismissal claims.

Ms Bryant had worked as a staff nurse for many years. She was working as the senior nurse at the Belmar Nursing Home in Lytham St Annes (in the employment of Sage) when, in June 2009 and while carrying out the drug round, she asked an unqualified care assistant to give medication (a sedative) to one of the residents. Unfortunately the sedative was given to the wrong resident. The error came to light when the resident who should have received the medication requested it about an hour later. Fortunately it was only a minor sedative and there were no ill effects.

The incident was reported to the Care Quality Commission and an investigation was conducted. Ms Bryant was suspended. At a subsequent disciplinary hearing reference was made to the relevant Nursing and Midwifery Council procedures. She admitted that she was wrong in allowing the error to happen and not reporting it but she had not acted intentionally and felt that she was qualified to make a judgement. Following the disciplinary hearing she was dismissed for gross misconduct. Continue reading →

the most summary of dismissals

Posted on October 30, 2012 by Martin Malone

City traders may not spring to mind as the most deserving of sympathy but spare a thought for those who were unable to access their offices today.

According to a report in today’s Times (behind paywall) about 100 traders turned up at work this morning only to find that their passes had been deactivated. They were met in reception by HR staff who gave them bags containing their personal belongings and were told that they would have two weeks’ paid leave, following which they should return to collect their redundancy payments.

Evidently, UBS have decided entirely to disregard proper redundancy procedure which requires notification to employees that they are at risk of being made redundant as soon as the possibility arises, as well as meaningful consultation which should include consideration of alternatives to redundancy. Continue reading →

tribunals must check parties’ availability when listing hearings

Posted on October 26, 2012 by Martin Malone

Listing of tribunal hearings is a perennial problem for all concerned, particularly if many witnesses are required.

University Of East Anglia v Amaikwu was an appeal against the refusal of an application for an adjournment of a hearing of an unfair dismissal and discrimination claim by the respondent to the claim. The application was made when the tribunal relisted the hearing after the original date had been cancelled at the last moment because no judge was available to hear the case (an all too frequent occurrence, anecdotal evidence suggests).

A new date was sent out without first asking the parties whether there were any periods when they or their witnesses could not attend. The date given was when one of the employer’s witnesses had already booked to travel to Albania for a family wedding. The notification sent by Employment Judge Pritchard-Witts was peremptory and unequivocal:

The hearing must take priority over a family wedding. The Claimant’s objections are well founded and this case is becoming decidedly stale. Postponement refused.

Some might take the view that a simple assertion, without more, that an employment tribunal hearing "must" take priority over a family wedding is a bold call. Continue reading →

with prejudice

Posted on October 26, 2012 by Martin Malone

In Gallop v Newport City Council the Employment Appeal Tribunal has held that an inadvertent disclosure while giving evidence that there had been “without prejudice” negotiations did not waive privilege, and a tribunal should not have taken them into account when assessing an award of compensation. The point came out of an unfair dismissal case where, in response to a question from the tribunal, a witness let slip the existence of failed negotiations to settle the dispute. On the basis of the information it gathered about the offer, the tribunal found that there was a 50/50 chance that the case would have settled amicably before a hearing and so awarded him half of the sum offered in the negotiations and reduced other elements of compensation by half.

The Employment Appeal Tribunal held that the tribunal was wrong to have enquired about the terms of the agreement and wrong to take it into account in assessing the award. Neither party had set out to waive privilege, nor was there reliance on the privileged material. The EAT commented that:

Employment Tribunals must not enquire into negotiations between the parties before them where no agreement is reached and where there has been no clear and unequivocal waiver of privilege by the parties. … It is pellucidly clear to us that privilege was not waived in this case, and no advice was given to the Claimant in person as to the principles of privilege.

Continue reading →

reasons for dismissal

Posted on October 26, 2012 by Martin Malone

Nejjary v Aramark Ltd is a reminder that a tribunal is only entitled to take into account the reasons given by an employer when deciding whether a dismissal is within the reasonable range of responses to misconduct, and should not take into account other matters disregarded by the employer. In this case a hospitality manager who worked on events hosted by Goldman Sachs was sacked for three acts of gross misconduct following client complaints about problems at events he had managed. He already had two warnings on file for similar offences, but these were not referred to in the disciplinary procedure at all. He appealed, and his dismissal was upheld but on the basis of just one of the three offences.

He complained to an employment tribunal who found that there was a fair reason for dismissal (conduct) and that a fair procedure had been followed. They then considered whether the decision to dismiss was reasonable in the particular case. They held that on its own, the single allegation upheld at appeal would not have justified dismissal, but took into account two live warnings still extant for similar matters in concluding that the dismissal was fair. The Employment Appeal Tribunal held that the tribunal had been wrong to take any account of matters not considered by the employer in its consideration of whether the dismissal was a reasonable response, and moreover had been wrong to hold that as an alternative the claimant had contributed to his own dismissal by his conduct

Mr Recorder Luba QC summarised the position as follows:

The plain fact, as found by the Employment Tribunal and as confirmed by Ms Mellon [for Aramark] in her submissions before us, was that the reason and the only reason for the dismissal was the single matter that remained extant at the time of the appeal; that is to say, …an instance of failure to check a booking form. Continue reading →

more about proposed tribunal changes

Posted on September 17, 2012 by Martin Malone

Government efforts to streamline, speed up, and cut costs in the tribunal system continue. As part of that, Mr Justice Nicholas Underhill has led a comprehensive review of tribunal rules of procedure. Apart from a very welcome rewrite to render them comprehensible to intelligent laymen and lawyers alike, the headline proposals include:

– The introduction of an early “sift” by an Employment Judge to weed out claims and responses with no reasonable prospect of success and give directions to get cases ready for hearing;
– Removing the system of different preliminary hearings for different issues, and replacing it with a single form of preliminary hearing which can deal with both any procedural matters and with preliminary issues of fact;
– Introducing a power to limit how long parties are allowed to present their evidence and submissions;
– Simplification of the rules for default judgments – and setting them aside;
– New rules on anonymity and restrictive reporting intended to achieve a better balance between open justice/freedom of expression and privacy/effective justice.

Continue reading →

new (or maybe not so new) proposals to "streamline employment law"

Posted on September 17, 2012 by Martin Malone

In our June newsletter I outlined what changes were to be expected as a result of the Government’s review of employment law. If anything, what has now emerged is an even more diluted version of what was anticipated in the sense that the proposed changes will be the subject of numerous consultations, rather than firm decisions to implement changes. The "fire at will" Beecroft proposals are nowhere to be seen but those which remain are unlikely to provide radical alterations to the existing employment tribunal provisions (except perhaps for the introduction of fees – see our July round-up).

It is clear that Vince Cable has had his way with the BIS press release emphasising that the UK has a lightly regulated, flexible labour market, considered by the OECD to have the third lowest employment protection among 20 OECD countries and 10 emerging countries.

Introducing the changes Mr Cable said

We have been looking across the range of employment laws with a view to making it easier for firms to hire staff while protecting basic labour rights.

Our starting point is that Britain already has very flexible labour markets. That is why well over one million new private sector jobs have been created in the last two years, even when the economy has been flatlining.

But we acknowledge that more can be done to help small companies by reducing the burden of employment tribunals, which we are reforming, and moving to less confrontational dispute resolutions through settlement agreements.

The consultations will cover: Continue reading →

no time extension for litigant in person

Posted on July 26, 2012 by Martin Malone

A forensic accountant who had won an earlier victimisation claim against one of her employers on the basis of an unfair reference has had her appeal to the Employment Appeal Tribunal struck out because she filed it outside the 42 day time limit for appealing. Whilst she was not a lawyer, the EAT observed that she had considerable experience of litigation and there was no reason to allow her to appeal out of time against an order striking out tribunal claims which were too unclear for the tribunal to work out what tribunal jurisdiction applied.

Although the judgment of the EAT can be read for entertainment value, there is a serious point to be made. While a lot of what the Claimant had submitted could only be described as "gibberish", the EAT was not prepared to say that there was no possible genuine claim buried amongst the material she had put forward:

Continue reading →

complex redundancy selection criteria not always necessary

Posted on July 26, 2012 by Martin Malone

When advising on redundancy procedures, employment lawyers tend to emphasise that employers should take care to ensure that they use objective criteria when selecting from a pool of employees. And very good advice it is too. Mitchells v Tattersall, however, shows that this does not inevitably mean a box ticking exercise is required.

Mitchells, the brewery, had a senior management team (“SMT”) of five. They ran into financial difficulties and the board decided to look at cutting the SMT to reduce expenses. They identified the property manager as the manager who contributed least, and was least likely to contribute, to bringing in revenue and on that basis decided that he should be made redundant. He successfully claimed unfair dismissal. The employment tribunal found that the dismissal was unfair because the board had used subjective criteria when selecting for redundancy, and that the procedure followed was unfair. However, they considered that he would have been made redundant if a fair selection method and procedure had been followed, and on the basis that there was a one in five chance of his being made redundant in any event, reduced compensation by 20%

Continue reading →