Disciplinary Matters and Ending the Employment Relationship

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.

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.

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.

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.

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) :-

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.

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.

The government is firming up on some of the many proposals to change employment law mooted in recent months, so we have a rash of consultation papers to digest and implementation dates to look forward to. (What happened to only introducing changes in April and October, to give employers a bit of a chance to keep up, by the way?)It looks as if fees for bringing a tribunal case will come into force in July. Fees will be charged to both start a claim and before a hearing can be listed, and will range between £160 to start a simple low value claim, (for example about unlawful deductions) and £950 for a hearing in a more complex claim.

Aderemi v London and South Eastern Railway Ltd gives some useful pointers about what sort of disability will be a protected characteristic under the Equality Act 2010.

• While an inability to carry out all your work duties does not equate to an inability to carry out day to day activities, it should not be assumed from this that a work activity is not a day to day activity;
• Tribunals should concentrate on what the employee cannot do, not what he can do, when looking at whether there is a substantial impact on day to day activities;
• When looking at what is substantial or not, it is wrong to think that there is a sliding scale with ”trivial” at one end and “substantial “ at the other – if an effect is not trivial, it is substantial
  Continue reading Accentuate the negative...

Employers should take care to investigate allegations of dishonesty involving breach of trust particularly carefully, suggests the EAT in Stuart v London City Airport.