Morgan Russell Solicitors

Disciplinary Matters and Ending the Employment Relationship

Disciplinary Matters and Ending the Employment Relationship

If in doubt, stick to the Code

The EAT has usefully confirmed for us in Lund v St Edmund's School, Canterbury that in cases where an employee is dismissed for some other substantial reason which has some overlap with conduct then the Acas Code of Practice on Disciplinary and Grievance Procedures should be adhered to. In this instance the EAT believed that the disciplinary procedure should have been invoked in the first place (rather than going down the SOSR route) and that, in itself, meant that the Code should apply.Of course, this does not mean that the Code should apply in all SOSR dismissals. We are talking about cases where there is a live issue about conduct and where a disciplinary process should really have been invoked. On the facts in this case, there was a breakdown in the relationship between Mr Lund, his colleagues and his employer. The employer was concerned that his behaviour had alienated him from his teaching colleagues.

Whilst the Code is silent about its application to SOSR dismissals (stating that it applies to conduct and performance dismissals and not to dismissals for redundancy or expiry of a fixed term) a tribunal in Cummings v Siemens Communications Ltd held that it applied to such terminations. Now we have EAT authority on the point. However, as ever, this does not necessarily make life easier for employers since it will not always be clear in which circumstances the disciplinary procedure should have been invoked. Sometimes such situations are clear cut, more often than not they are not. So, as the headline says, employers in any doubt as to whether the Code might apply should probably just play safe and avoid the risk of an uplift to any possible award.

ET rules on Seldon

An ET has ruled in Seldon v Clarkson Wright & Jakes, on its remission from the Supreme Court, that a compulsory retirement age set out in the retirement provisions in the law firm's partnership deed was a proportionate means of justifying legitimate aims, namely succession planning and the retention of staff. No surprises there. The key guidance remains that given by the Supreme Court which set out pointers for determining the justification of direct age discrimination. Applying those guidelines, the ET noted that a mandatory retirement age has to be a balance of the interests of the practice, the partners and of associates who aspire to partnership. Any determination had to weigh up the needs of the partnership against the harm caused by the discriminatory treatment. The age of 65 was within the narrow range of aims to achieve the two stated aims and the partners had consented to the mandatory retirement age. Moreover the default retirement age at the time was 65. In these circumstances, the retirement age was proportionate.

A warning note was however sounded at the end of the ET judgment where the ET states that the position might have been different if the relevant date had been after the abolition of the default retirement age and after the planned changes in the state pension age. Employers should therefore be wary not to take the ET decision as a basis on which to assume any similar retirement provisions in their partnership deeds are unassailable.

To consult or not to consult...

It has been a busy month in terms of collective consultation disputes, only serving to underline how tricky these obligations can sometimes be. First up is the reminder, in Shields Automotive Ltd v (1) Langdon (2) Brolly and AEI Cables Ltd v (1) GMB (2) Unite (3) Individual Claimants, that awards for breaches of the collective consultation obligations are intended to be punitive and not to compensate the employee for any loss or damage suffered. However, in AEI Cables the EAT noted that failure to consult was because the company would have otherwise unlawfully traded while insolvent yet only reduced the protective award from 90 days to 60 days.

Continue reading To consult or not to consult...

Double jeopardy

In Christou (1) Ward (2) v London Borough of Haringey the Court of Appeal upheld what may seem the surprising decision that an employer could revisit an earlier disciplinary decision to give a written warning for misconduct and decide to dismiss the employee after all. It would not be wise, however to treat this as any kind of general rule as it arose from fairly unique circumstances. The case related to dismissal of a social worker and team leader working for Haringey who were responsible for the safeguarding of Baby P, who died as a result of neglect and mistreatment by his mother and two men.

Continue reading Double jeopardy

Revisiting old warnings

After we reported a case in last month’s newsletter (Simmonds v Milford Club) where it was thought appropriate to revisit previous warnings if they were “manifestly inappropriate” in considering the fairness of a misconduct dismissal, Davies v Sandwell Metropolitan Borough Council emphasises that that was very much the exception to the rule.

Continue reading Revisiting old warnings

Sticks and stones

Hill v Governing Body Of Great Tey Primary School is another high profile case this month which concerned the case of a dinner lady dismissed for breach of confidentiality after telling parents about a nasty bit of playground behaviour involving their child (the innocent party) without permission, and then going to the local press about it when she was suspended.

When she was sacked she made an unsuccessful whistle-blowing claim, and a successful unfair dismissal claim.

An ET found that she had been dismissed unfairly because the investigation and disciplinary process before dismissal were unfair, but that she would have been dismissed within a couple of months had a fair procedure been followed – and was also guilty of 80% contributory fault, reducing her compensation to a token amount.

Continue reading Sticks and stones

Unreasonable warnings can make a dismissal unfair

Where an employee is dismissed for misconduct and there was a live final warning on their disciplinary record which appears, on the evidence, to have been "manifestly inappropriate", then a tribunal should not just look at whether the employer has taken a reasonable approach to the event triggering dismissal, it must also look back and consider whether the final warning was fairly given as well: so says the EAT in Simmonds v Milford Club.

A steward at a private club was dismissed for disobeying an instruction to give all staff a bottle or bottles as a Christmas bonus; he gave them a cash gift instead. The sanction was settled on because he already had a current final warning, for letting his wife deposit takings at the bank instead of doing it himself.

Continue reading Unreasonable warnings can make a dismissal unfair

New tribunal limits - for now

Here is a list of the main new Employment Tribunal compensation maximum limits where the "appropriate date" (for example date of dismissal) is on or after 1st February 2013 (but note that the overall limit for compensatory awards in unfair dismissals may be changed soon) :-

Continue reading New tribunal limits - for now

Religion in the workplace - a question of balance

The decision of the European Court of Human Rights in the cases of Eweida, Chaplin, Ladele, and McFarlane has unsurprisingly received a lot of attention this month, and it seems certain to have a big impact. All of the cases centred around the right to manifest a religious belief, and whether UK law protected that right sufficiently. Two of the cases concerned how far an employer has to accommodate an employee’s wish to wear a necklace with a crucifix pendant at work, and the others concerned a relationship counsellor and a registrar respectively, who did not want to perform those parts of their jobs which conflicted with their views on same sex relationships, which in turn were based on their Christian beliefs.

Continue reading Religion in the workplace - a question of balance

"You're fired!" (but not just yet)

Geys v Société Générale is an important case of the Supreme Court which rules on the question of whether a unilateral step by one party – say, a summary dismissal by an employer - can end a contract of employment without the other party accepting that repudiation, or whether the contract does not end until the employee does or says something to indicate that he accepts that the contract is at an end. The Supreme Court, by a majority, opted for the latter.

Continue reading "You're fired!" (but not just yet)
Page 1 of 5Next
clever girl