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…

Termination

This decision reminds employers that they should always clarify with the employee what their intentions are when they resign, especially if there is any uncertainty or ambiguity. It is a good idea to arrange a follow-up meeting and speak to them to ascertain this. If the employer would prefer that the employee leave the company, they should not just jump on the chance to get them out because it may result in a claim for unfair dismissal. Employers do not have to allow an employee to retract a…

Employee relations

This case is a useful example of how employment tribunals will examine the motive of organisations when determining the reason behind compiling a list of individuals in order to make employment decisions. In many cases, it may be difficult for organisations to prove their motive, therefore, they may wish to create an internal policy or guide on how to use the list in practice.

Employee relations

Employment tribunal – April 2013 Was the inclusion of an individual who had previously participated in trade union activities on a ‘blacklist’ prohibited? The Employment Relations Act 1990 (Blacklist) Regulations 2010 prohibit the use of a blacklist, and the refusal of employment related to a blacklist, where the motive for the list is to discriminate against an individual based on their trade union membership or activities. Facts The employee, a full-time officer of a union, was…

Recruitment and selection

Employment tribunal – July 2018 This case highlights the importance of requesting references from previous employers to confirm the information contained in a job application or CV. Facts The claimant was a trained pilot who had worked in First Officer positions. The organisation advertised a job vacancy for a Captain and the claimant applied for this role. In his application, he lied and stated that he had previously carried out work as a Captain. As a method of supporting this lie,…

Recruitment and selection

This case highlights the need for employers to carry out full pre-employment checks before offering employment to ensure the individual is suitable for the job role. If the organisation had carried out these checks, they would have discovered the individual had provided a false reference and this would have led to further questions regarding his experience, and honesty. Where organisations require employment references as part of their recruitment process, it is advisable to make offers of…

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…

Judgement published:
Discipline and grievance , Termination

When conducting a disciplinary process all evidence available should be considered in reaching a final decision to dismiss. If there is evidence that may cast doubt upon the events, as was the case here, employers may find themselves facing unfair dismissal claims if they cannot prove that they acted reasonably by deciding to terminate employment.  

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…

Judgement published:
Discipline and grievance , Termination

When conducting a disciplinary process all evidence available should be considered in reaching a final decision to dismiss. If there is evidence that may cast doubt upon the events, as was the case here, employers may find themselves facing unfair dismissal claims if they cannot prove that they acted reasonably by deciding to terminate employment.  

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…

Discipline and grievance , Termination

If a formal process is going to be carried out that could potentially end a career, employers have to be careful to ensure procedural correctness. Failing to properly review a suspension can lead to a claim for unfair dismissal on a procedural flaw, as the employee may be able to argue that full consideration was not given in their absence. Employers should take steps to create evidence that a review has been carried out, such as sending a clear letter to the employee following the decision.

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…

Discipline and grievance , Termination

If a formal process is going to be carried out that could potentially end a career, employers have to be careful to ensure procedural correctness. Failing to properly review a suspension can lead to a claim for unfair dismissal on a procedural flaw, as the employee may be able to argue that full consideration was not given in their absence. Employers should take steps to create evidence that a review has been carried out, such as sending a clear letter to the employee following the decision.

Discipline and grievance

Employment Appeal Tribunal – August 2018 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…

Discipline and grievance

If an employee being disciplined asks for a postponement of a disciplinary hearing because their representative is unable to attend, employers should not just restrict this to just five days. Instead, they should act reasonably in those circumstances as a failure to do so could render any dismissal unfair on procedural grounds. Employers should remember the guidelines on the right to a companion in disciplinary meetings. They have very little opportunity to refuse a particular companion, even…

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…

Judgement published:
Termination

Employers should ensure that they are following correct disciplinary procedures when dismissing employees by conducting strong investigations to present all relevant facts in a fair and open manner. If factors are present which may provide mitigation for the employees involved, for example, length of service and a clean disciplinary record, organisations must consider them and if it is decided that the mitigation is not to have the effect of reducing the sanction, setting out to the employee…

Business principles

Court of Appeal – July 2018 The Court of Appeal (COA) has ruled that the EU Working Time Directive (WTD) does not outline any obligation in the Working Time Regulations 1998 to provide compensation for ‘injury to feelings’ when an employer fails to facilitate rest breaks. Facts and Employment Tribunal The employee, Santos Gomes, made a claim that her employer was not affording her the requisite rest breaks which was having an impact on her health and wellbeing. The Employment Tribunal…

Business principles

This case clarifies the intention of the wording contained in the Working Time Regulations with regard to compensation for failure to provide breaks: it will not include an injury to feelings award.

Pay and benefits

Court of Appeal – July 2018 The Court of Appeal (COA) has ruled that a care worker who performed ‘sleep in’ shifts was ‘available for work’ and not 'actually working’ and so was not entitled to the national minimum wage (NMW) for the time spent asleep. Note. Permission to appeal this decision has now been granted by the Supreme Court who will consider grounds for appeal in due course. Facts This case relates to a situation which had, up until this point, been the cause of much…

Pay and benefits

Although this judgement may come as a relief to the care sector, who had been faced with enormous arrears of pay for these type of shifts, this judgement may still be appealed to the Supreme Court.  For now, employers who had begun to pay workers NMW for all hours of a sleep in shift in response to previous case law may wish to remove this practice but keep an eye on developments in case of an appeal to the Supreme Court. If the increased pay was implemented via a formal change to terms and…

Equality

Employment Appeal Tribunal – June 2018 The EAT has ruled that an employer's warning for absence levels was discrimination arising from a disability which could not be objectively justified Facts Ms O’Connor, who had worked for the company in a customer support role since 2005, was considered disabled under the Equality Act 2010. The company had made reasonable adjustments to accommodate her condition and despite her regularly exceeding the acceptable levels of absence as laid down in…

Equality

This case highlights the challenge facing employers, even those who had “adopted over many years a very careful approach”. Importantly this acts as another reminder for employers to consider the causal link between an individual’s actions and their disability before taking any disciplinary action, as section 15 of the Equality Act 2010 protects disabled employees from suffering any mistreatment for something arising in relation to their disability.

Employees and workers

Employment Appeal Tribunal – May 2018 The EAT has ruled that lower annual leave and rest break allowances for agency workers, in comparison to directly employed workers, cannot be compensated by an increased hourly rate of pay, however there is no requirement to provide agency workers with the same number of working hours as the directly employed workers. Facts The case relates to an agency worker who, after several months of work with an end user organisation, became dissatisfied with…

Employees and workers

Organisations using agencies to recruit workers should review payment practices to ensure the agency workers receive the same pay, and leave allowance, as direct recruits. Employers should keep in mind that less favourable treatment in one area, such as lower leave allowance, cannot be compensated by more favourable treatment in another. Agency workers have no entitlement to receive the same number of working hours as direct recruits, although their working time should not exceed that which…

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…

Termination

This case reinforces the role that the ability to appeal plays into a fair dismissal process in that it can allow an employee an opportunity to provide evidence that the dismissal was not appropriate.

Equality

Employment Appeal Tribunal – May 2018 The EAT has ruled that it was not religious harassment for an employee to ask a Muslim colleague if they were a supporter of Islamic State (IS) because the context of these remarks was not related to the individual’s religion. Facts The incident behind this case relates to an altercation between the claimant Mr Bakkali, a Muslim man of Moroccan origin, and his colleague Mr Cotter in 2015. During a conversation between the two men in early October,…

Equality

Organisations need to make sure they sufficiently examine the full set of circumstances surrounding any allegations of harassment to determine the context in which remarks were made. Although individuals may not mean to cause offence with their remarks it is important to educate staff and warn against discussing any topics with links to protected characteristics such as race and religion, however tenuous these links may be.