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 →

no unfairness in process for selecting candidates for alternative employment

Posted on April 26, 2012 by Martin Malone

Consideration of alternative employment is a part of a fair redundancy procedure and it is common practice for employees to be asked to attend interviews for alternative jobs, competing against other internal, and sometimes external, applicants.

In Samsung Electronics (UK) Ltd v Monte-D’Cruz the Employment Appeal Tribunal (EAT) overturned a finding of unfair dismissal by an employment tribunal, which held that a redundancy was unfair, in part because the criteria used for selecting candidates for an alternative job were subjective and “nebulous”. The competencies against which applicants were assessed were “creativity, challenge, speed, strategic focus, simplicity, self-control/empowerment, customer focus, crisis awareness, continuous innovation and teamwork/leadership”. The tribunal thought it would have been better to select by reference to a person specification, and that past performance was not properly taken into account.

Continue reading →

alternative dispute resolution to be promoted

Posted on December 8, 2011 by Martin Malone

As part of the government’s review of employment law strategies to reduce the number of claims which get as far as a tribunal are less controversial, and, some might say, less pro-employer.

ACAS’ current power to conciliate will revert to a duty, and all cases will be referred to voluntary early conciliation before employment tribunal proceedings are started, with an extension of a month to the time limit for bringing claims to allow for this. ACAS has a reasonable track record of success in such early conciliation, but the crunch will be whether they have the resources to cope with the level of work. The need to increase resources is recognised, with the government saying that the additional funding needed will be paid for from the savings made elsewhere. It has to be observed that referral to ACAS in past similar arrangements which operated until 2009 frequently amounted to little more than a few phone calls. Accordingly not too much should be expected from this initiative. Continue reading →

disciplinary hearings and hospital trusts

Posted on November 22, 2011 by Martin Malone

Along comes another case to add to the long list of claims against hospital trusts concerning alleged flaws in the disciplinary process. Trusts have very detailed contractual disciplinary procedures, complicated by reviews and the introduction of new and often overlapping procedures consequent to Directions issued by the Secretary of State which have led to a plethora of claims of failure to comply with contractual terms, express or implied. These cases have often assisted more generally in the clarification of tricky legal questions (such as the right to legal representation at disciplinary hearings under human rights legislation).

In Lim v Royal Wolverhampton Hospitals NHS Trust the High Court was asked to consider whether Mr Lim (a consultant anaesthetist) should be granted an injunction preventing a capability hearing from proceeding until an assessment panel of the National Clinical Assessment Service (NCAS) had made a determination as to his performance. The court was asked to determine two questions:

1. Whether the Trust was in breach of contract by failing to comply with its own procedures by failing to refer the issues (relating to bullying and inappropriate behaviour) to the NCAS
2. Whether, by seeking to revive allegations of misconduct some three years earlier, the Trust failed to comply with the terms of its own disciplinary procedure that it should act fairly and speedily.

Continue reading →

employment tribunal claims: do the latest changes really take account of the “human factor”?

Posted on October 26, 2011 by Martin Malone

You know that moment when someone voices something you’ve been thinking for a while? Lord Justice Mummery hit the nail on the head for many who have experience of the employment tribunal system in Gayle v Sandwell and West Birmingham Hospitals NHS Trust when he responded to criticisms about how long the case had taken to progress through the system and how much money had been spent on it.

On the face of it, the criticism was a fair one – the claimant unsuccessfully appealed twice after being unsuccessful in her claim that she was unfairly dismissed for taking unauthorised time off for union duties at a three week hearing, with the final decision being made nearly five years after the events in question. But as Lord Justice Mummery made clear, this case was very much the exception to the rule; few tribunal cases last longer than a day or two; still fewer go to one level of appeal, let alone two, and he pointed out that there are a range of reasons why cases such as this one take a long time to resolve. In particular, he remarked that it is difficult to achieve a speedy, inexpensive outcome where one or more party to the proceedings is determined to take every point of law, evidence and procedure. Continue reading →

It turns on the words – “theft of money” or “loss of money”

Posted on January 25, 2011 by Martin Malone

Celebi -v- Scolarest Compass Group UK & Ireland Limited is a decision of the Employment Appeal Tribunal which emphasises the importance for employers of ensuring that they use the right terminology when taking disciplinary action against employees. The case is also a good example of how an apparently straightforward dismissal can keep an employer occupied for years because the relevant events took place in November 2006 and Mrs Celebi was dismissed in May 2007. The case went to the Employment Appeal Tribunal in 2008 when the issues mainly concerned technical matters relating to the procedures in the Employment Act 2002 (which no longer apply) and a rehearing was ordered. That took place and the resulting decision led to the appeal which took place last year. I’m commenting on it now, first because the case demonstrates how employment cases can become very protracted and expensive and, second, because of the warning that it provides to employers who think they have acted correctly but who happen to use the wrong words at the wrong time can undermine what was otherwise an apparently fair process.

Mrs Celebi was a chef manager at a college. On 14 November 2006 she collected £3,400 in cash. She completed paperwork confirming this when the money was sent to the bank but only £400 was received. As a result of this she was suspended.

She was sent a letter which identified the basis of the investigation as “serious allegations: Loss of £3,000 cash banking/inaccuracy in banking”. She was called to a hearing to consider allegations of incorrect reporting of stock figures, failing to follow financial procedures and discrepancies in banking. Her dismissal in May 2007 cited the same reasons.

Her initial claim for unfair dismissal was dismissed but her appeal succeeded in 2008 so that the case was remitted to a new tribunal hearing. The “second tribunal” again found that the dismissal was fair, not least because Scolarest had found, after a reasonable investigation, that she had been responsible for the loss of the £3,000. The person who dismissed her said in her evidence (on more than one occasion) that she believed that Mrs Celebi had stolen the money.

So how did Mrs Celebi succeed on her appeal? Judge McMullen considered numerous cases including the well known decision in British Home Stores -v- Burchell (was there a genuine belief, on reasonable grounds and after a reasonable investigation, of the guilt of the employee concerned) and Strouthos -v- London Underground (a charge against an employee facing dismissal must be “precisely framed”). He also considered Spink -v- Express Foods in which it was held that it is “a fundamental part of a fair disciplinary procedure” that an employee can only be disciplined in respect of a charge that has been put to them. Although it might readily be implied that the employer’s position was that the money had been stolen, on the evidence, that was never directly put to Mrs Celebi. The tribunal was wrong because it concluded that the dismissal was attributable to theft. The letter requiring Mrs Celebi to attend a disciplinary hearing did not expressly state this and it was held that she might have responded differently to an allegation of negligence rather than theft.

The result is that the dismissal was unfair and another tribunal was required to consider the question of remedy. However, Judge McMullen pointed out that the tribunal might wish to consider the effect of Polkey -v- A E Dayton Services (reduction or elimination of a compensatory award on the basis that, had correct procedures been followed, the employee would have been fairly dismissed). That is unlikely to provide any comfort to the employer given the history of the matter and their employment of solicitors and leading barrister Daniel Barnett to represent them for the second appeal.

One of the main benefits of CLB Employment Solutions is that we advise our subscribers about these issues before they end up in an employment tribunal. If you are not yet a subscriber please call free on 08000 320 974.

An inconvenient truth: judicial mediation is a waste of time and money

Posted on April 23, 2010 by Martin Malone

So, at last, we now all know what we’ve been thinking for long enough but few would dare to say. Judicial mediation doesn’t work and, in direct contradiction of its stated purpose, generally ends up causing greater expense for the parties.

According to research conducted by the Ministry of Justice concerning Employment Tribunal discrimination cases reported in this week’s Law Society Gazette, the pilot study revealed “no discernible, statistically significant effect” on the number of cases settled or resolved without a formal hearing.

To compound matters, the research has also revealed that, far from reducing costs for the parties, those cases in which judicial mediation was used cost the parties an average £880 more in overall net costs.

Most experienced lawyers can identify more or less immediately those cases which are likely to have a reasonable chance of settling by mediation or some other form of alternative dispute resolution. Equally, we know that in most cases people pay lip service to attempts to mediate “to give the right impression to the court” but in the knowledge that any attempt at mediation is a complete and utter waste of time.

It is a farce that parties in litigation are obliged to consider mediation and other forms of alternative dispute resolution and that they can face costs sanctions if they cannot be seen to have done so. The sooner this illusory process is abandoned the better. Leave it to the lawyers to decide whether and on what terms there should be mediation. I can’t think of any lawyers I know who would push for a case to go to trial if they knew that a case could be settled by mediation. If some lawyers do engage in unnecessary costs building exercises, they will soon be found out by their clients.

The final irony is that the process was found to be “an expensive process to administer” and that the costs were not offset by the expected benefits. So it seems that judicial mediation costs the parties and the courts / tribunals and, on balance, brings no discernible benefits. Surely the time has come for the courts and tribunals to face up to the reality that introducing additional hoops for litigants to negotiate in the naive hope of reducing the administrative and judicial burden and saving costs is good for no-one and should be abandoned as soon as possible.

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.

why it is a nonsense to maintain that tribunals are an informal alternative to court proceedings

Posted on March 3, 2010 by Martin Malone

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.

extending time

Posted on May 25, 2009 by Martin Malone

The EAT has allowed a claim to proceed even though it appeared to be out of time notwithstanding that the claimant did not provide evidence in person.

The case is Accurist Watches -v- Wadher and this is the summary of the decision taken from the judgment:

“Claim for age discrimination presented five weeks out of time. Claimant not giving evidence as to reason for delay but relying on medical reports and other documentary material. Held that Judge entitled to find that it was just and equitable to extend time notwithstanding certain deficiencies in the material before him. Observations on the nature of the evidence which should be put before Tribunals hearing preliminary or interlocutory matters, particularly applications for extensions.”