Termination

The Employment Appeal Tribunal (EAT) has ruled that a tribunal had failed to consider if there had been a genuine redundancy situation, following a claim that new roles created afterwards were ‘essentially the same’. The burden of proof as to if a dismissal was for a fair reason lies with the respondent and in this case, the reason for dismissal being relied upon was redundancy. To test for redundancy, it must be shown that there was a potentially fair reason for the redundancy to take place…

Termination

The Employment Appeal Tribunal (EAT) has ruled that a dismissal for reputational risk, following the arrest of a teacher on suspicion of downloading inappropriate images of children, was unfair. Two of the five potentially fair reasons for dismissing an employee are ‘conduct’ and ‘some other substantial reason (SOSR)’. SOSR is a catch-all category which provides a potentially fair reason for dismissal where the circumstances cannot be classed as one of the other potentially fair reasons. A…

Termination

The Employment Appeal Tribunal (EAT) has found that an employee was constructively dismissed when she was moved onto a different role instead of being subject to appropriate redundancy procedures.  Redundancies can arise when an organisation no longer requires a member of staff to conduct work of a particular kind. Consulting with staff in this situation is important as it allows organisations to justify why a redundancy is necessary and discuss if any other courses of action are available,…

Termination

The Employment Appeal Tribunal has ruled that a dismissal with no procedure was fair due to a breakdown in the working relationship. To avoid a claim for unfair dismissal an organisation needs to demonstrate a potentially fair reason to dismiss and that they followed a fair procedure. Potentially fair reasons are outlined in the Employment Rights Act 1996 and include Some Other Substantial Reason (SOSR). This can occur when there is a loss of mutual trust and confidence between the employee…

Discipline and grievance , Termination

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 situation that…

Termination

The Employment Appeal Tribunal (EAT) has ruled that a group of claimants were unfairly dismissed by a local authority when the school they worked in closed and they were unsuccessful in applying for positions at a new school in the same location. As outlined in the Employment Rights Act 1996 (ERA), a redundancy is a potentially fair reason for dismissal. However, when implementing a redundancy procedure, organisations need to ensure that it is fair and that they are able to justify the…

Business principles , Termination

The Employment Appeal Tribunal (EAT) has held that in TUPE situations, transfer-related contractual changes are void even if they benefit the employee and not just when they are detrimental. Aside from transfer of business ownership, TUPE transfers, and the laws that surround it, can also come into effect when where the provision of services ceases to be carried out by one contractor (known as the ‘transferor) and is allocated to another (known as the ‘transferee’). This is known as a ‘service…

Termination

The Employment Appeal Tribunal (EAT) has found that in claims of constructive dismissal, even if the ‘last straw’ act that led to a resignation is considered ‘innocuous’, claimants can still rely on prior actions from the organisation.   To establish constructive dismissal, claimants must show that the organisation’s actions amounted to a serious breach of contract that led to their resignation. However, this can be difficult to prove if they continue to work for the organisation after such an…

Termination

The Employment Appeal Tribunal (EAT) has held that it was reasonable for a charity to dismiss an long-service employee with criminal charges due to the potential for reputational damage. Under the Employment Rights Act 1996, there are five potentially fair reasons to dismiss an employee, which includes some other substantial reason (SOSR). Generally, these dismissals arise when there are fears that maintaining the employment of an individual could result in reputational damage for an…

Termination

The Employment Appeal Tribunal (EAT) has ruled that it was incorrect for a tribunal to presume that only an act of gross misconduct could contribute to a dismissal.   In situations where a claimant successfully claims unfair dismissal, they can still be subject to deductions from their overall compensation award. Polkey deductions stem from the case of Polkey v AE Dayton Services Ltd. Under Polkey, if it is likely that the claimant would have been dismissed anyway had the organisation in…

Business principles , Discipline and grievance , Termination

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…

Termination

The Supreme Court has ruled that in situations where the real reason behind the decision to dismiss an employee is hidden from the decision-maker by an ‘invented reason’, it is the hidden, real reason that should be taken as the true reason for dismissal. When a worker makes a protected disclosure, section 47B of the Employment Rights Act 1996 (ERA) states they cannot suffer a detriment as a result. Section 103A of the ERA also provides that a dismissal for making such a disclosure is…

Judgement published:
Termination

The Employment Appeal Tribunal (EAT) has provided further clarification on how statutory and contractual redundancy pay should be provided to employees. When an employee is made redundant they are entitled to receive statutory redundancy pay if they have at least two years’ continuous service. The payment is calculated on the basis of an employee's age, length of service and weekly pay, subject to a weekly maximum. In addition to this, organisations may also provide enhanced, or contractual,…

Judgement published:
Discipline and grievance , Termination

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 outcome…

Judgement published:
Termination

The Court of Appeal has upheld the earlier decision of the EAT that the doctrine of illegality did not render an employment contract unenforceable due to the immigration status of the employee, as the employee had been unaware that she was no longer able to work in the UK. An employee or a worker who has been working under an illegal contract can be prevented from successfully bringing claims to an employment tribunal (ET) if they rely on said illegal contract to bring their claim. This is…

Judgement published:
Termination

  The Court of Appeal (CA) has reinforced the notion that the successful appeal of a dismissal means that continuality of employment is preserved, thereby meaning the employee's dismissal is considered to have 'vanished'.   Facts Mr Patel, who worked as a healthcare assistant, was dismissed for gross misconduct in April 2014 for sleeping on duty and falsifying residents’ records, the latter of which he was told would result in him being reported to the care home regulator for putting…

Discipline and grievance , Termination

Court of Appeal – March 2019 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…

Discipline and grievance , Termination

Employment Appeal Tribunal – April 2019 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…

Terms and conditions , Termination

Court of Appeal – October 2018 The Court of Appeal has ruled that mistakenly referring to a different termination date than specified in an employment contract will not vary the date if there is no basis for inferring this intention. In this case, the employee joined an insurance broker in 2005 under an ‘Executive Employment Agreement’. This agreement was subsequently varied pursuant to a written addendum in 2012, which outlined that his employment would not expire before 31 December 2016…

Employees and workers, Termination

Employment tribunal – October 2018 The employment tribunal (ET) has ruled that dismissing an apprentice prior to the completion of their apprenticeship was in breach of contract. This case concerned an apprentice who entered into an arrangement with an organisation in Scotland, Express Joinery, under the auspices of the Construction Industry Training Board (CITB). This outlined an apprenticeship with an end date of January 2020. During his time working for Express Joinery the apprentice took…

Discipline and grievance , Termination

Employment tribunal – October 2018 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…

Termination

Employment Appeal Tribunal – October 2018 The Employment Appeal Tribunal (EAT) has held that not holding a meeting with an employee before making a decision to dismiss for SOSR did not amount to unfair dismissal. In this case, the employee operated as a voluntary reservist with the Royal Marines whilst maintaining his role within an organisation. As he needed additional time off for this commitment he had successfully negotiated a further week of unpaid leave upon acceptance of the role.…

Pay and benefits, Termination

Employment Appeal Tribunal – November 2018 Contractual term preventing ill-health capability dismissal whilst receiving PHI benefits implied by EAT. Facts The employee worked as a security agent under a contract entitling him to a long-term disability benefit plan, which expressly stated that the benefits would cease if his employment was terminated. In October 2012, the employee commenced sick leave due to depression and his employment was subsequently outsourced to ICTS under the…

Termination

Employment Appeal Tribunal – November 2018 Employment tribunal failed to consider employer’s breach of contractual obligation to provide a trial period when determining fairness of redundancy dismissal. Facts In a case which had already been remitted to the employment tribunal twice previously, since 2003 the employee worked as one of six Library Managers responsible for two libraries. In 2011, facing funding cuts, the council decided to close half of their libraries and reduce the…

Discipline and grievance , Termination

Employment Appeal Tribunal – June 2018 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…

Termination

Employment Appeal Tribunal – June 2018 The Employment Appeal Tribunal (EAT) has ruled that the intentions behind a letter of resignation should be clarified to correctly confirm if the employee does intend to leave the company.  Facts In this case, the employee had worked in the records department for her employer for around 10 years. She had recently experienced issues with an employee and had applied for a position in the employer’s radiology department, for which she had received a…

Judgement published:
Discipline and grievance , Termination

Employment Appeal Tribunal – June 2018 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…

Discipline and grievance , Termination

Employment Tribunal – August 2018 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…

Judgement published:
Termination

Employment Tribunal – August 2018 The Employment Tribunal (ET) has ruled that a dismissal is unfair if an employee’s length of service and clean record are not taken into account and if any additional issues leading up to a disciplinary hearing are not discussed at the hearing but are noted as reasons for dismissal.  Facts In this case, two employees, Mr Genus and Mr Kelly, had been employed by a company specialising in property repairs for over 20 years. In February and April 2017…

Termination

Employment Appeal Tribunal – June 2018 The EAT has ruled that an employer’s belief that an appeal would make no difference in a right to work dismissal was incorrect. The appeal could have provided opportunity for key evidence against the dismissal, not readily available at the time, to be submitted. Facts This case relates to a claimant who was employed as a delivery driver by the employers in October 2009. During his time working for the employers, he was noted as being a competent and…