does a finding of gross misconduct always justify dismissal?

It may seem an obvious reply. Surely gross misconduct, once established, has destroyed the employment relationship at such a fundamental level that it cannot realistically continue.

The question was considered by the Employment Appeal Tribunal in Brito-Babapulle v Ealing Hospital NHS Trust. Ms Brito-Babapulle was a consultant haematologist at Ealing Hospital. Pursuant to the terms of her contract she was entitled to have a session of private patients in addition to her NHS patients. She commenced a period of sickness absence on 13 March 2009 which, apart from one day, continued until 8 June 2009. Her employer suspected that she was continuing to see private patients while she was certified unfit to work and in receipt of full contractual sick pay. Disciplinary proceedings were commenced accordingly.

Ms Brito-Babapulle accepted during the disciplinary proceedings that what she had done was wrong although she maintained that she did not think so at the time of the wrongdoing. She had received two prior notifications that if certificated sick she should not work in private practice. She claimed not to recall the notifications but her evidence on this point was rejected both in the disciplinary proceedings and the subsequent tribunal. It was concluded in the disciplinary proceedings that there had been gross misconduct. Alternatives to dismissal were not seriously considered in light of the breach of trust. Taking into account her experience she should have known better. She appealed against her dismissal and the appeal was not upheld.

The Tribunal which followed considered whether dismissal was justified:

On the facts decided by and known by the Respondent at the time we take the view that this dismissal did fall within the range of reasonable responses. The Respondent was entitled to find that the Claimant’s actions amounted to gross misconduct. We bear in mind the not unreasonable findings that the Claimant had been told in 2007 about this very same conduct; that she was a very experienced doctor who had knowledge of sick certificates and had herself decided not to sign the reverse of those sick certificates as she had indeed been working. Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses.


should holiday pay include overtime?

It is very rare for me to comment on an employment tribunal judgment that has not been the subject of an appeal, not least because such judgments do not provide a binding authority which can be applied in other cases. However the judgment of Employment Judge van Gelder in the Birmingham tribunal in Neal v Freightliner Limited is worthy of note since it deals with the very practical question of whether holiday pay should include provision for notional overtime.

Mr Neal worked as a “Multi-Skilled Operative” (MSO) at Freightliner’s Birmingham depot. In early 2012 he raised a grievance concerning his holiday pay. The grievance was followed by an employment tribunal claim in respect of a series of unauthorised deductions from wages in relation to alleged underpayment of holiday pay and breaches of the Working Time Regulations 1998. The issue was straightforward. Freightliner contended that Mr Neal was entitled to holiday payments equivalent to his basic pay whereas Mr Neal contended that his holiday pay should be calculated with reference to his normal pay, i.e. including routine overtime. The working of overtime was so routine that although Mr Neal’s contract provided for a seven hour shift, he had never worked a shift of only seven hours and his shifts were mainly nine hours and occasionally as long as twelve hours.

Having considered the Working Time Regulations and related legislation Judge van Gelder was taken by Freightliner’s representative to the 2004 decision of the Court of Appeal in Bamsey and others v Albion Engineering in which it was held that compulsory but non-guaranteed overtime did not have to be taken into account when calculating holiday pay. Mr Neal’s representative relied on the rather more recent decision of the European Court of Justice in British Airways plc v Williams and others (2011) in which it was held that holiday pay should equate to “normal remuneration”, thereby incorporating payments which are “intrinsically linked” to the work required to be carried out under the terms of the contract of employment.


Ryanair and whistleblowing – a dilemma

A couple of weeks ago I watched a 30 minute documentary on Channel 4 in its Dispatches strand, Ryanair: Secrets from the Cockpit. At the core of the programme were the results of a survey of the members of the Ryanair Pilot Group. The name of the Group would naturally suggest that it comprises a membership of Ryanair pilots, although it has been cast in various lights, including a suggestion that it is in fact a method of seeking unionisation of the Ryanair pilots at the instigation of other, already unionised, European pilots.

The information disclosed in the programme was generally not new and broadly underwhelming. We “learned” that Ryanair is firmly focused on saving costs and this includes carrying limited fuel loads which, significantly, are above the legal minimum. Separately it was recently reported that pilots have been asked to extend flight times, apparently by an average two minutes per one hour 10 minutes, thereby saving costs by reducing fuel consumption.

It was a little surprising that pilots appear to be scored on a league table according to the extent of savings made. While some may deprecate such an approach, it cannot be said that it follows that safety is likely to be impaired as a result, although this was the clear implication

Earlier this year but with rather less press coverage, at least in the UK, similar allegations were made in a book Ryanair. Low cost mais à quel prix? written under the pseudonym Christian Fletcher “to protect the pilot from being sacked”. The author criticised Ryanair’s “obsession” with cutting aviation fuel costs and suggested quick turn-round times contributed to the stress of employees and that staff worked in a “permanent climate of fear, with tactics of intimidation and punishment”


how to deal with subject access requests

On 8 August 2013 the Information Commissioner’s Office published a new Subject Access Code of Practice. The 58 page guide offers a great deal of practical information concerning how to deal with requests.

It is comprehensive and commendably straightforward and, as such, it’s essential reading and reference for anyone who has to deal with subject access requests.

Introducing the Code the Information Commissioner, Christopher Graham, said:
We are all being asked to provide organisations with more and more information about ourselves and subject access requests are a useful tool for keeping control of our data. They can be particularly important when checking your credit rating or applying for a loan, but the ICO’s complaints figures show that many organisations still need to improve their processes for dealing with these requests.
Handling subject access requests correctly can also benefit organisations by highlighting errors and helping them to make sure the information they are using is accurate and up-to-date
Our new subject access code of practice will help organisations deal with these types of requests in a timely and efficient manner, allowing them to demonstrate that they are looking after their customers’ data and being open and transparent about the information they collect. This can only be a good thing for organisations and consumers.
The Code attempts to tackle the thorny question of whether there is an obligation to comply with a subject access request when the person making the request is contemplating or has already commenced legal proceedings. My view, based on my experience of the rules concerning disclosure of documents in civil proceedings is that making such a request with the express purpose of securing “back door disclosure” is an obvious and plainly unacceptable abuse of the process. Why have court rules concerning disclosure if they can effectively be disregarded by utilising the subject access procedure?
Unsurprisingly the Information Commissioner disagrees.


dealing with adjournments on medical grounds

What should a tribunal do when a claimant is ill due to stress cased by an employer’s alleged bullying?

This was the question for the Court of Appeal in Riley v The Crown Prosecution Service. The history of relevant events is complicated so please bear with me! Tyica Riley was appointed as a Senior Crown Prosecutor with the CPS in February 2005. In August 2006 she raised a grievance alleging bullying and harassment which was upheld in part. In November 2007 she was transferred to a different team in Lewisham and in August 2008 she went off sick. She never returned to work thereafter. In September 2008 she raised a second grievance and this was not upheld in June 2009. Further it was suggested that the allegations were false and made maliciously. This led to disciplinary proceedings. However in August 2009 an occupational health report was obtained, confirming that she remained unfit to return to work and that removal of the disciplinary process “will significantly improve her ill health”. Also in August her appeal in respect of the first grievance was rejected.

Ms Riley commenced her first employment tribunal claim in September 2009, alleging race discrimination, disability discrimination and whistle blowing. In December 2009 an appeal by another employee against the finding made against him in Ms Riley’s first grievance was upheld and in February 2010 Ms Riley’s appeal against the rejection of her second grievance was also rejected. It was rejected again in March 2010.

In April 2010 Ms Riley commenced her second employment tribunal claim, concerning allegations of bullying by the employee who was the subject of her first grievance. Notwithstanding her continuing absence through ill health a disciplinary hearing was scheduled to take place in early June 2010. Unsurprisingly Ms Riley provided notification that she was unfit to attend. In July 2010 a psychiatric report was obtained which concluded that Ms Riley was “unable to cope or attend any legal proceedings or hearings” and that her problems were “a direct result of her on going legal battle”.


what do you do if someone is too afraid to give evidence?

In Duffy v George the Court of Appeal has considered what a tribunal should do if a claimant is too frightened to attend a hearing. It is easy to imagine situations, particularly with discrimination cases such as this one, in which a distressed employee or former employee is scared of attending a hearing at which the alleged discriminator will be in attendance. As with criminal proceedings it is well known that people may choose not to proceed with what would otherwise be entirely justified claims so that there is a serious risk of injustice, often based on the opponent’s continuing threats or other bullying behaviour. Obviously a most unsatisfactory state of affairs.

Susannah George worked for Taylor Wimpey Homes as a sales executive and Michael Duffy was a projects manager. Ms George complained about sexual harassment by Mr Duffy, exemplified by him giving her a sex toy as a Valentine’s gift and sending her “sexy text messages”. Mr Duffy countered the allegations by claiming that Ms George “gave as good as she got”. Ms George resigned and shortly thereafter Mr Duffy was dismissed.

Ms George brought proceedings against Taylor Wimpey Homes and Mr Duffy. Shortly before the employment tribunal hearing the claim against the former employer was settled. The hearing against Mr Duffy was adjourned. Mr Duffy then sent Ms George a horoscope with, according to the judgment, “a comment implying that she had made up the allegations and would suffer for it”.


what are zero hours contracts and how do they work in practice?

Zero hours contracts are often referred to in employment but they are not legally defined. They were popular a number of years ago because it was often very difficult for employees working under such contracts to secure sufficient continuous employment to benefit from employment protection, e.g. for unfair dismissal. However, since there is no longer a requirement to work a minimum number of hours per week to gain protection that potential benefit for employers no longer exists.

Nonetheless there has been a significant increase in the use of these contracts in the last few years. According to Government figures it is estimated that about 250,000 employees are working under zero hours contracts. However, the Chartered Institute of Personnel and Development has recently estimated that the correct figure is nearer one million and this has generated a good deal of press coverage about whether such contracts are “a good or bad thing”.

On 20 August Shadow Business Secretary Chuka Umunna held a summit of employers and employees to discuss the key issues and, in particular, concerns about their widespread implementation


the practicalities of settlement agreements and without prejudice discussions

Ahead of the implementation of the new regime for settlement agreements, the Acas Code of Practice has been published in its final form. This is a statutory code of practice, not just guidance. That means that when considering matters such as procedure and fairness, a tribunal can take into account whether the provisions of the Code have been applied and adhered to. It is therefore essential reading for all involved in HR and employment law matters and is a commendably straightforward document. In its final form it is a bit more flexible than the original draft. In particular there is now no need for a written offer to start the process (although a lot of employers will have one prepared) and the standard letters are not part of the statutory Code. However, they are still part of the guidance provided. An important point is that it provides for employees to be accompanied at meetings – as a matter of good practice, not a statutory right. This is a sensible move. If a settlement offer is coming out of the blue, an employee will be “shell-shocked” and could very well not be taking in what is being said. If on the other hand the employee has seen the writing on the wall, he or she will be feeling anxious and defensive – and on this basis might well not be taking in what is being said. Another change is that the suggested minimum time to consider the offer has been increased from seven to ten days, which gives the employee a weekend to fret and/or fume, and a working week to get some informed advice.
The protection given to pre-termination settlement negotiations only applies “to the extent that the tribunal considers just” and will not be available to the employer if anything done or said in the negotiations is “improper”. The Code gives examples of improper behaviour, including:

– Harassment, bullying or intimidation;
– Discrimination on the ground of a protected characteristic;
– Threats by the employee to undermine the employers’ reputation (unless this would be protected whistleblowing);
– Making it clear that the employee will be sacked if they do not agree the terms put to them. In practice this is by far the most likely scenario.


whistleblowing update

Late June saw the introduction of some significant changes to the whistleblowing provisions set out in the Public Interest Disclosure Act. However, before considering the changes I think that it is worthwhile taking a little time to consider just what whistleblowing is in the context of UK employment law. In its simplest sense whistleblowing is “blowing the whistle” or bringing out into the open wrongdoing by an employer. Prior to the implementation of the Public Interest Disclosure Act 1998 (in July 1999) whistleblowers had no protection from dismissal. Further, they could be subject to claims for damages for breach of confidence (on the basis that the whistleblowing entailed the disclosure of confidential information obtained in the course of employment), although it was possible to raise a public interest defence in limited circumstances.
The Act came into force against a background of financial scandal and “sleaze” and is aimed at ensuring that employees can disclose certain types of information, such as financial wrongdoing, crime, or health and safety matters, without suffering a detriment. Examples could include a danger in the workplace, financial misreporting, or medical negligence in a hospital. The concern raised must be “genuine” and based on “reasonable grounds”. Breach of the Act by employers can result in employment tribunals proceedings and awards of compensation. Dismissal for whistleblowing is treated as automatically unfair.
Many employers responded to the new law by implementing “whistleblowing policies” confirming their commitment to the avoidance of detriment and providing express protection for whistleblowers. Such protection can only be effective if employees know what whistleblowing is (e.g. it is not raising general grievances) so policies tend to explain this as well as spcifying a method for reporting wrongdoing confidentially and confirming that it will be a disciplinary offence to victimise a whistleblower or to make a false allegation maliciously. Our Employment Solutions standard documents (available to subscribers) include a tried and tested whistleblowing policy along with detailed guidance notes. Other employers have sought to “gag” employees by requiring them to sign confidentiality clauses, generally accompanied with substantial payments on the termination of employment.
Whistleblowing has been much in the news in recent months, what with Edward Snowden and the NSA, the conviction of Bradley Manning, revelations about police undercover operations and attempts to smear the Lawrence family. Gagging orders included in settlements are reported to have cost the NHS £2 million and the BBC a staggering £28 million.
So, what are the changes?


collective consultation – one establishment or many?

When USDAW originally took the liquidators of Woolworths to Court over the failure to consult employees before shutting down all its shops in 2008, workers in smaller branches were excluded from the award of 60 days’ pay for each employee. The reasoning behind this was that the obligation to consult on a collective basis only applies where more than 20 employees are to be made redundant at “one establishment”. The conventional interpretation of those words has been that individual sites, like factories, schools, or shops, which are managed locally, are distinct establishments. However, in USDAW and others v WW Realisation 1 Ltd the Employment Appeal Tribunal has broken with “established” tradition in taking the view that “establishment” in this context refers to a business rather than a particular location at which a business operates.
In his summary His Honour Judge McMullen QC has left in no doubt the firmness of his approach by stating that a purposive construction of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 required the court to delete the words “at one establishment”, thereby allowing protective awards to be made. USDAW has estimated that the value of the awards in this case (which was a combined hearing covering both Wooolworths and Ethel Austin) is about £5 million. With reference to the new rules which have come into force this month it is notable that the appeal very nearly never happened. It was rejected by Mr Justice Langstaff, President of the EAT on initial assessment and only allowed to proceed after a review by His Honour Judge Peter Clark.
Judges are normally very reluctant to interfere with the words contained in a statute, based on the primacy of Parliament. It is no doubt with this in mind that Judge McMullen made the following observation: