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Archive for the ‘Disciplinary & Grievance’ Category

The Court of Appeal has clarified the employment status of Methodist Ministers.

The Methodist Minister in this case resigned from her post and then went on to present a claim for unfair constructive dismissal against the President of the Methodist Conference. In order for her to succeed in her claim it was necessary for her to demonstrate that she was an employee of the Methodist Conference.

Before this the Courts had held that the spiritual nature of the work of a Minister of Religion meant the law presumed they could not be working under a contract of employment though this could be rebutted. However, the Court of Appeal recognised that the law has evolved and said that such decisions should no longer be followed. It said that there is no basis for concluding that a minister’s spiritual role in itself precludes an intention to create a contractual employment relationship. Accordingly, it ruled that she was an employee and, therefore, able to bring a claim for unfair constructive dismissal.

This case applied to a Methodist Minister appointed by a congregation or group of congregations, however there must now be a risk that other Ministers of religion may also be found to be employees .

Case reference: President of the Methodist Conference v Preston (formerly Moore).

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The EAT held in this case that the conduct of disciplinary proceedings was so unreasonable as to constitute a fundamental breach of contract entitling the employee to resign and claim constructive dismissal.

The employee in this case was suspended on full pay during the investigation of allegations of gross misconduct. The letter suspending him failed to adequately specify the allegations against him and attached labels to them which were held to be positively misleading. It also contained allegations of gross misconduct and dishonesty without there being an adequate basis for making such allegations.

The employee lived on the work premises and was instructed to remain on the premises during his period of suspension, save for attending to his personal requirements, and to ensure that he made himself available for investigatory or disciplinary meetings.

During the suspension period, contrary to his employer’s instruction, he went away for a weekend. Upon his return he was summoned to a meeting without any prior notice with his line manager who unreasonably criticised him for going away, saying that his weekend trip amounted to a breach of the terms of the suspension.

After the meeting the employee wrote to the employer complaining about the involvement of his line manager whose personal integrity he questioned. However, he did say that he would be willing to cooperate fully in any investigation conducted by a person who was not involved in the matter. He refused to attend a further meeting arranged by his line manager and resigned, claiming unfair constructive dismissal.

Upon hearing his claim the Employment Tribunal found that the employer had committed a repudiatory breach of his contract of employment, and that he had resigned in response to that breach. Accordingly, he won his claim for unfair constructive dismissal.

The Employment Appeal Tribunal, upholding the Employment Tribunal’s decision, said that the employer’s initiation and subsequent conduct of disciplinary proceedings was so unreasonable as to constitute a fundamental breach of contract entitling him to resign and claim constructive dismissal. The Employment Appeal Tribunal also accepted that he had resigned in response to that breach.

Working Men’s Club & Institute Union Ltd v Balls.

 

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The Government has announced that the qualification period for the right to claim unfair dismissal will be extended from one to two years from 6 April 2012. The change comes as part of a Parliament long review on employment law, which is looking at all aspects of employment law and is part of the Government’s plans to deliver growth by reducing red tape, boosting opportunities and creating more favourable conditions for both start-up and existing businesses alike.

The rationale behind the change is that by extending the qualifying period it will be much less risky for businesses to take on staff. Government estimates that the change could save British businesses nearly £6 million a year. It also predicts that the number of unfair dismissal claims will drop by around 2000 a year.

The change will not impact on the right of employees to claim unfair dismissal where the reason for dismissal is one which is ‘automatically unfair’. A dismissal is ‘automatically unfair’ where an employee is dismissed for exercising or trying to exercise one of their statutory employment rights, for example if they are dismissed by reason of pregnancy or for ‘whistle-blowing’.

Government has also announced plans to introduce a fee for bringing a claim through an employment tribunal (however, employees who leave work and claim benefits are likely to be exempt). The new charging policy is expected to apply from April 2013. The Government will consult on the level and structure of the fees.

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The employee in this case was employed by two different NHS Trusts, in different jobs, working different hours. One of the jobs involved travelling whilst the other was based in a clinic.

The employee developed a chronic knee problem which resulted in her being signed off sick in relation to the job that required her to travel. However, she continued to work in the clinic based job since that job did not require her to be mobile.

When her employer, Imperial, found out that she was continuing to work in the clinic based job it dismissed her for gross misconduct on the basis that she had defrauded it by claiming sick pay. She appealed against the decision to dismiss and Imperial, realising that the decision to dismiss her for fraud was unsupportable, confirmed her dismissal on different grounds, namely that she should have informed them that she was capable of work that did not involve travelling so that they could have redeployed her.

Unfortunately, the EAT did not decide the interesting question of whether or not the appeal panel was entitled to dismiss her on entirely different grounds from the original decision to dismiss. However, it did find that there were no grounds on which the appeal panel could justify a dismissal because, in the circumstances, the decision to dismiss did not fall within the range of reasonable responses. Accordingly, the dismissal was found to be unfair.

Case reference: Miss A Perry v Imperial College Healthcare NHS Trust

Employers should always take legal advice before making a dismissal or taking action short of dismissal. Any decision to dismiss must be reasonable taking into account the relevant facts of the case.

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Employment relations body Acas has published what is believed to be the first guide to social media use in the workplace.

According to Acas figures almost six out of ten employees now use social media at work. It estimates that misuse of the internet and social media by employees costs the UK economy up to £14billion a year and reports that many employers are now having to deal with issues such as time theft, cyber bullying, defamation, freedom of speech and the invasion of privacy.

The guide is aimed at helping businesses, staff and trade unions handle employment issues relating to use of the internet, blogs and social media websites such as Facebook and Twitter.  Acas claims that it will save businesses ‘billions’.

In the guide Acas advises employers to:

•    draw up a policy on social networking;
•    treat ‘electronic behaviour’ in the same way as employers would treat ‘non-electronic behaviour’;
•    react reasonably to issues relating to social networking by asking ‘what is the likely impact on the organisation?’

The guide includes practical tips on managing the impact of social networking in the context of managing performance, recruitment, discipline and grievances, bullying, defamation, data protection and privacy. It also gives guidance as to how employers should go about developing a social networking policy and helpfully explains the legal issues relating to the use of social media from an employment perspective.

A full copy of the guide can be found here.

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The Supreme Court has held that employees working or based abroad can only claim unfair dismissal in the employment tribunal in exceptional circumstances.

This case concerned two teachers who were employed by the Department for Children, Schools and Families to work in European Schools.

They were employed under a succession of fixed-term contracts. Their contracts were expressed to be governed by English law and provided for the English courts to have exclusive jurisdiction.

The Board of Governors of the European Schools had set a ‘nine year rule’, under which British teachers at European Schools were compelled to leave their posts after nine years. The Department considered that it was bound by this rule and, therefore, refused to renew the teachers’ contracts.

On expiry of their contracts the teachers brought claims of unfair dismissal and breach of contract, as well as claims for pay in lieu of notice.

The Supreme Court had, on an earlier occasion, accepted that it had jurisdiction to consider the matter and had held that the ‘nine year rule’ provided an objective justification for the fixed-term contracts not evolving into permanent contracts.

It now had to consider whether the teachers could bring claims for unfair dismissal, breach of contract and for pay in lieu of notice through the English legal system. It decided that they could.

The Supreme Court said that the right to bring proceedings in Great Britain by employees who are working or based abroad will only apply in exceptional circumstances.  In essence, the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law.

The teachers’ case was considered to be an exceptional case due to a special combination of factors. Those factors were as follows:

•    their employer was not only based in Britain but was the UK Government;
•    their employment contracts were governed by English law;
•    they were employed in ‘international enclaves’ and, therefore, had no particular connection with the countries in which they were situated. They did not pay local taxes and were only in those countries because of commitments undertaken by the British Government;
•    it would be anomalous if a teacher, who was employed by the British government to work in the European School in England, were to enjoy different protection from teachers who were employed to work in the same sort of schools in other countries.

Case reference: Duncombe & Others v Secretary of State for Children, Schools and Families (No. 2)

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In this case a teacher was dismissed after allegations of indecency. The school reported the outcome of the disciplinary hearing to ISA, the Independent Safeguarding Authority, which had the power to place the teacher on a barred list to prevent him teaching in schools. The teacher challenged the refusal to allow him legal representation at the disciplinary hearing held by the school. The Supreme Court  held that there is no right under Article 6 of the ECHR to legal representation at a disciplinary hearing where dismissal could lead to a process capable of barring an individual from a profession, where the barring decision is sufficiently independent of the dismissal decision.

The caveat [see italics] is important and employers should be aware that where a decision in one set of proceedings impacts on another decision involving a person’s civil rights, then the right to a fair hearing [and by implication the right to legal representation at the disciplinary hearing] may be invoked.

Case reference: R (on the application of G) v The Governors of School X.

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Sharon Shoesmith was dismissed by Haringey Council as its director of childrens’ services after the death of Baby P for gross misconduct and without the right to a disciplinary process as required by UK employment law. In other words, she was not given the chance to defend herself and therefore the tax payer will be shelling out a shilling. It stands as a stark reminder to employers everywhere that however wrong you may think an employee is, they do not forfeit their right to a fair hearing.

In its defence her employer, Haringey Council, said it was under pressure from the Secretary of State Ed Balls to fire her.

The Court of Appeal has rejected Shoesmith’s appeal in relation to OFSTED but upheld it against the Secretary of State for Education and Haringey Council. The judge said the dismissal was unreasonable: “she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated”.

Despite the tragic events which led up to this case, every employee is entitled to the right to reply when their job is on the line. Ed Balls was either lashing out, attempting to save his own skin or buckling under pressure. I don’t know which it was but in any case it was wrong. Crikey, even TV audiences have the right to reply and  if the government thinks itself above the law,  it is in the wrong country. Thank goodness!

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An employer sent me an email yesterday as follows: “I’ve received a letter from TV Licensing regarding licenses on commercial/business premises. Apparently employees would be breaking the law if they watched TV or recorded TV programmes on computers, laptops etc. ”  This is correct to some extent (see references to ‘Live’ programmes and similar terminology) so employers need to have policies in place to ensure that employees are not in breach of copyright regulations. (Our standard policies include this precaution see Employment Law Essentials). Here are the specifics, as usual the devil is in the detail  and the following extract from Advice Guide is a practical start.

Who needs a television licence?

You need a TV Licence to use any television-receiving equipment to watch or record TV programmes as they are being shown on TV. These include programmes on the BBC, ITV, Channel 4, Channel 5, cable and satellite television. Television-receiving equipment includes:

  •     TV sets
  •     set-top boxes
  •     DVD recorders
  •     video recorders
  •     computers and laptops
  •     mobile phones or other battery-operated devices
  •     games consoles

You don’t need a television licence if a TV set cannot receive TV programmes and is used only:

  •     for close circuit monitoring
  •     for watching pre-recorded videos or DVDs
  •     as a computer monitor – see under heading You don’t use your television set or other device to watch or record broadcast programmes.

You don’t need a TV licence if you only ever watch catch-up services, like BBC i-Player, that let you watch programmes after they have been broadcast.

A television licence allows the person named on it and any member of their household to use one or more television sets or video or DVD recorders at the address covered by the licence. If you are covered by a licence at your home address you are also covered to use a battery-powered device, such as a laptop or mobile phone, to watch live TV when you are away from home.

If you only have a black and white television, you only require a black and white television licence. If you have a colour television, a DVD recorder or video recorder, you will require a colour television licence. This will apply even if the DVD or video recorder is used with a black and white television set.

You don’t use your television set or other device to watch or record broadcast programmes

If you do not use your television set, video recorder or DVD player to watch or record live broadcast programmes (that is, BBC, ITV, Channel 4, Channel 5, cable television or satellite television) you will not need a licence. This means that you would not need a licence if, for example, you only:

  •     use the television set as a computer monitor
  •     use the television set to play electronic games
  •     watch pre-recorded videos or DVDs, whether or not these have been bought or recorded by someone else

However, the television set must be incapable of receiving all live broadcast programmes. This could be done, for example, by making sure that a television set, DVD or video recorder are not:

  •     tuned into any channels
  •     connected to an aerial
  •     connected to any cable or satellite services

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A station master has been sacked for risking his life to save others. UK employment law and Health and Safety regulations often go hand in hand for many employers especially if they operate in high risk industries, such as railway travel. In this case, South West Trains say they have taken the decision to sack popular station master, Faletto, on grounds of gross misconduct after he went onto the track to remove a shopping trolley which may have been capable of causing a serious accident.

The problem is that from an employment law and health ans safety perspective, Faletto had to contravene safety regulations to do so and this led to the accusation of gross misconduct. Mr. Faletto says he took action in an emergency situation and that in such circumstances the employer’s safety regulations allowed such an intervention. The case is likely to centre around employment law principles such as whether it was reasonable for the employee to take the action he did in the circumstances, and was it reasonable for the employer to find him guilty of gross misconduct, and if so, was it reasonable to sack him for the offence or were mitigating factors such as length of service, unblemished record, contingent circumstances (Mr. Faletto believed his request to turn off the power had been actioned) and so forth, capable of reducing the penalty to a disciplinary warning?

If the matter goes to court the tribunal will be the arbiter of these questions. The country will await the outcome of the tribunal’s decision which is likely to have an impact on other employment law dismissal cases where contravention of safety regulations are involved in extreme circumstances.

Ian Faletto has been praised for his customer service and has won many awards in decades of service for South West Trains who are standing by their decision and dismissed his appeal. The public are coming out in support for Mr. Faletto in their droves and petitions, PR and BBC coverage will all serve to put pressure on South West Trains whose journey through the employment law tribunal will not necessarily be an easy one!

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