Summary It is permissible for employers to use evidence taken from an employees Facebook page in disciplinary proceedings where there is not a reasonable expectation on the employees’ part that their posts would always be private. Law Law relevant to this case includes unfair dismissal (section 98 of the Employment Rights Act 1998), contributory fault deductions under the case of Polkey v AE Dayton, race discrimination under the Equality Act, and the European Convention on Human Rights (…

Summary The right to be accompanied at a formal hearing is an unfettered right, within the parameters of the applicable law, which applies regardless of the companions conduct. However, the companions conduct can lead to a reduction in compensation for suffering loss and detriment. Law Employment Relations Act 1999 10. Right to be accompanied. (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b)…

Summary EAT confirms that in certain circumstances, it is not unfair to reopen an already concluded disciplinary process and issue a new outcome of dismissal, where the previous decision was to give a final written warning. Law Section 98 (4) Employment Rights Act 1996 (ERA) (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on…

  Summary In this decision on unfair dismissal and subsequent remedy hearing, the Employment Tribunal (ET) had to consider whether or not the actions of the employer in this case were designed to “exit the claimant out of the business”, and that if targeting the claimant for behaviour that would otherwise been ignored in better performing stores was fair. It also had to consider how much the claimant contributed to the actions of the employer.   Law Employment Rights Act 1996 Section 123(…

Summary In this decision on unfair dismissal, the Employment Appeal Tribunal (EAT) had to consider whether or not the Employment Tribunal (ET) conclusions were perverse in a case where numerous and vexatious grievances were found to be a fair reason for dismissal, and if it had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s Law Employment Rights Act 1996 (ERA) Section 98. (1) In…

  Summary In this decision on unfair dismissal and discrimination, the Employment Tribunal (ET) had to consider if an academic, who claimed her race and sex lead to inherent characteristics of being naturally loud and argumentative, and her body language demonstrative, was unfairly dismissed and discriminated against for the way she dealt with PHD students. Law Section 98 Employment Rights Act 1996 provides: (1) In determining for the purposes of this Part whether the dismissal of an…

  Summary In this Employment Appeals Tribunal (EAT) case, two key points of law are explored: the right of the accused to know what they are actually being dismissed for, and respond to it, and the need to consult with the accused over the potential outcome of the case in disciplinary hearings. The latter is a new spin on the right to know the potential outcome, and goes beyond that which is required in the ACAS code of practice. Law Section 94 Employment Rights Act (ERA) 1996: An…

  Summary In this decision on unfair dismissal, the Employment Appeal Tribunal (EAT) had to consider whether or not the Employment Tribunal (ET) had adequately considered the employers investigation into whether the employees’ misconduct was caused by the claimants mental health condition (depression), or the medication to treat it.   Law Employment Rights Act 1996 Section 98 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for…

Summary An employment tribunal (ET) has held that a driver who was sacked after he was spotted drinking in a pub while he was off sick was unfairly dismissed. To avoid a claim for unfair dismissal an employer must have a potentially fair reason to dismiss, acted reasonably in treating this reason as sufficient to justify dismissal, and followed a fair procedure. For a dismissal to be fair, the employer must show that the employee was dismissed for one of the following five permitted reasons:…

The EAT has dismissed a victimisation claim, ruling that wording used by the claimant in a grievance was not sufficient to amount to a ‘protected act’. As she was an experienced in HR, her wording called into question whether she believed she was discriminated against at the time.    The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of ‘sex’. Victimisation occurs where an employer…

  Summary The Employment Tribunal (ET) has held that an employee was not directly discriminated against on the grounds of religion or harassed by her employer. Law ‘Religion’ means any religion, or a lack of religion, and ‘belief’ means any religious or philosophical belief or a lack of belief. For ‘religion’ to be protected, it must have a clear structure and belief system. ‘Religious belief’ goes beyond beliefs about and adherence to a religion or its central articles of faith and may…

Summary The Employment Appeal Tribunal (EAT) has ruled that the ET erred by finding evidence from an external witness was unreliable and made a decision to dismiss unfair. Under the Employment Rights Act 1996, in order to demonstrate that the decision to dismiss an employee is fair, organisations need to clearly show the reason for the dismissal. It also needs to be established that their actions leading up to the decision to dismiss fell inside the ‘band of reasonable responses’ to the…

Summary The Employment Appeal Tribunal (EAT) has held that there can be circumstances where, when considering misconduct, a separate investigatory and disciplinary hearing is not required. Under section 98(4) of the Employment Rights Act 1996 (ERA), whether a dismissal is fair or unfair will depend on whether the organisation acted reasonably in treating the employee’s conduct as a sufficient reason for dismissing them. The case of British Home Stores v Burchell provides further clarification…

Summary The Employment Appeal Tribunal (EAT) has ruled that managers who disrupt normal proceedings by ‘meddling’ in them can lead to organisations facing successful unfair dismissal claims. Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is automatically unfair to dismiss an employee on grounds related to trade union membership or activities. Facts In this case, the claimant was a senior gas engineer who had been employed by the organisation for 29 years and had an…

Summary The Employment Appeal Tribunal (EAT) has ruled that an employee was not unfairly dismissed despite content being removed from an investigation report into his conduct that expressed views in his favour. Before undertaking a disciplinary procedure into alleged misconduct, organisations must first carry out a thorough investigation into the allegations. Acas recommends that the report produced from any investigation should not, from the facts gathered, provide an opinion on what the…

Summary The Employment Appeal Tribunal (EAT) has ruled that an employee who covertly recorded a meeting did not automatically break the implied term of mutual trust and confidence. In a contract of employment, there exists an implied term of mutual trust and confidence between the organisation and its employee. This means that if either party conducts themselves in such a way that undermines or destroys the employment relationship, the other party can regard their actions as a fundamental…

European Court of Human Rights – June 2019 The European Court of Human Rights (ECHR) has ruled that an organisation relying on evidence provided by the police during a disciplinary procedure did not breach an employee’s right to privacy. Article 8 of the European Convention of Human Rights provides that everyone has the right to respect for their private and family life, their home and their correspondence. It goes on to outline that there shall be no inference by a public authority with the…

Summary The Court of Appeal has ruled that a nurse was fairly dismissed on allegations she had engaged in inappropriate discussions with patients about religion. Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. It also explains that this should only be subjected to limitations in the interests of public safety or protection of public order, health, morals or the rights and freedoms or others…

Summary The Employment Appeal Tribunal (EAT) has ruled it was a breach of the implied duty of trust and confidence to serve an ‘informal improvement’ notice without first holding a meeting, as required under the disciplinary procedure. Facts The claimant, a nurse working for the Trust, was asked to switch on incubators in readiness for a procedure the following day. However, she had to leave work early due to a suspected mini-stroke and did not do this. The claimant informed a doctor upon…

Summary The Employment Appeal Tribunal (EAT) has ruled that a dismissal was fair despite further investigations not being held into a late submission of alcohol dependence. Section 98(4) of the Employment Rights Act 1996 (ERA) provides that in order for a dismissal for misconduct to be fair, the organisation needs to clearly outline that they acted reasonably in treating the misconduct as a sufficient reason for dismissal. Section 57A of the ERA also outlines that employees have the right…

Summary The Employment Appeal Tribunal (EAT) has ruled protection against unfair dismissal following the assertion of a statutory right requires an allegation of an actual breach. In this case the employee, who has less than two years’ service, was dismissed following a disciplinary procedure that had considered, and upheld, allegations against him of sexual harassment and assault. At the disciplinary meeting, the employee claimed that he had tried to exercise his right to be accompanied but…

Summary The Court of Appeal has ruled that the decision to suspend an employee will not necessarily amount to a breach of implied mutual trust and confidence depending on the facts of each case. Facts The employee was a primary school teacher engaged on a fixed-term contract. Although she had 15 years’ experience teaching children with special needs she had no prior training for children with behavioural difficulties. Allegations were made against the employee that she had used unreasonable…

Summary The employment tribunal (ET) has ruled that the decision to dismiss one employee and not another when their conduct was ‘similar’ was fair as their actions were not ‘identical’. The claimant in this case had been unhappy because the annual Christmas gift provided to employees was of less value than previous years. A colleague, Mr Minshull, posted a Facebook status criticising this and comparing management to Ronald McDonald. Commenting on the status, the claimant accused his manager…

Summary The Employment Appeal Tribunal (EAT) has ruled that a failure to consider how a disability can be the operative cause of an employee’s misconduct amounted to unfair dismissal. This case concerned a lorry driver who suffered from type 2 diabetes. After a period of driving he returned to the organisations’ premises, parked near a loading bay to the store and felt an extreme need to urinate. Not believing he would make it to the building’s facilities in time, he urinated in the yard.…

Summary The EAT have examined whether an investigation which did not include statements from witnesses who had not seen the alleged incident was a reasonable investigation. Facts Pupil A made a report against a long-standing teacher that he had been grabbed, pushed against a wall and then had two fingers pushed against his throat. A second pupil, B, corroborated A’s story and named other potential witnesses as pupils OB, EB and GK. Pupil OB was interviewed but stated that they had not…

Summary The Employment Appeal Tribunal (EAT) has ruled that the Employment Tribunal (ET) did not assess all evidence available when evaluating if employers carried out a reasonable investigation into allegations of theft. Facts In this case, an employee had worked at the Anne Arms bar since 2003. During that time, she had received no complaints regarding her conduct nor any indications of wrongful behaviour. In 2015, Mr and Mrs Falzon took over management of the bar and became her…

Summary The employment tribunal (ET) has ruled that a primary school teacher accused of “grooming” a pupil was unfairly dismissed and discriminated against due to their sexual orientation.   Facts In this case, a primary school teacher had received a written warning in 2002 for inappropriate and unprofessional contact with a pupil. At the time it was found that nothing sinister had taken place and that the reason for the employee’s actions was that he was naïve as to appropriate…

Summary This case examined whether an individual can be unfairly dismissed, having been denied the opportunity to postpone their disciplinary hearing, despite the fact that their conduct could potentially justify a dismissal. Facts Ms Smith who had worked for the employer from 1994 to 2016, was found to have sent a series of emails to a customer using insulting and offensive language to describe a colleague. Smith was suspended and invited to a disciplinary hearing, however this initial…

Summary Can a disciplinary investigation be regarded as unreasonable where it is too thorough? Facts Pillar was employed as a Nurse Practitioner from July 2002 to September 2014. Her role was to take telephone calls from the public and triage them to decide the most appropriate next care step. In December 2013, a Patient Safety Incident occurred when Pillar failed to take in to account red flags when making a decision. Pillar directed a patient who was describing symptoms of a heart…

Summary Here the High Court decided that suspending a teacher amounted to a breach of the implied mutual trust and confidence term in employment contracts.   Note: This decision has been appealed and overturned by the Court of Appeal.   The case concerned a primary school teacher engaged on a fixed term contract in November 2013 which was due to expire at the end of the following August. The teacher had 15 years’ experience teaching children with special needs, but no training in…