Posts Tagged ‘disciplinary’

The Employment Appeal Tribunal has upheld an employment tribunal’s decision that a dismissal for misconduct in failing to observe safety rules was unfair.

The employee, in this case, had been employed as a track worker for 23 years when he was spotted, not wearing a hard hat, beside a track with a group of workers. He had previously been on long term sick leave and had just returned to work. He needed a Track Safety Certificate (PTS) and some retraining and because he had not done that, he was asked to work as a driver for a group of track workers.

After carrying out an investigation the employer made three charges against him which amounted to breaches of safety rules: (1) that he did not have a hard hat when in the proximity of the track; (2) that he did not have a valid PTS certificate while he was in that vicinity; and (3) that he had failed to set up a safe system of work as required by the rules because he was a lone worker, and not part of the group.

These allegations were upheld at a disciplinary hearing and the employee was dismissed. The employee appealed arguing that the sanction was too severe but was unsuccessful and then brought a claim for unfair dismissal.

The tribunal found that the employer had carried out a reasonable investigation and followed a reasonable procedure. However, the tribunal found that the decision to dismiss fell outside the range of reasonable management responses because:

1.    the employee was not aware that his PTS certificate had been suspended until the investigation yet that was given as one of the principal reasons for his dismissal;

2.    the employee was not standing near a fully operational line and the risks were minimal;

3.    the tribunal found it difficult to see how he could be classified as a lone worker, since he was working as a driver for the team;

4.    there had been a difference between the treatment of the employee and the supervisor of the team who should have told the employee to return to his van and reported him. They were both in breach of the safety rules, but only one of them was dismissed;

5.    the employee had an unblemished record of 23 years’ service and the dismissal was for a first offence.

Accordingly, the tribunal ruled that the dismissal was unfair.

The employer unsuccessfully appealed arguing that the decision of the tribunal was perverse and that it had erred in law by substituting its view for the employer’s.  The Employment Appeal Tribunal dismissed that appeal, finding that the tribunal had in mind the right tests and was entitled to reach the conclusion that it had about unfair dismissal.

However the Tribunal had also applied a 50% reduction to the award for the employee’s contributory fault and had not given any reasons for that. This finding was remitted to the Tribunal to make a fresh decision and give reasons for it.

Case reference: Network Rail Infrastructure Limited v Mockler

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The qualifying period for unfair dismissal claims is expected to be extended from one year to two years from 6 April 2012, but not retrospectively.

In November 2011 the Government announced its intention to extend the qualifying period for unfair dismissal claims to two years from 6 April 2012. Note that we are still waiting for a draft of the legislation required to bring about that change to be published .

In the meantime, however, it has been reported that the increase in the qualifying period is only intended to apply to those starting new employment on or after 6 April 2012 and will not be applied retrospectively to employees who started work before that date. Those who started work on or before 5 April 2012 would still only require one year’s service to qualify for unfair dismissal rights.

The proposed legislation required to extend the qualifying period is expected to be published shortly and will then be subject to Parliamentary procedure.

*The proposed changes do not impact on ‘automatic unfair dismissal’ claims.

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City law firm Allen & Overy allegedly told female solicitors to increase the lengths of their skirts and reduce the height of their heels or face “uncomfortable discussions” with the human resources department reports The Telegraph. The instructions were  sent by email to trainee solicitors at the firm by the trainee solicitor liaison committee.

The email allegedly said “We’ve been asked to draw your attention to the fact that HR have received numerous complaints about the way female trainees have been dressing around the office,” and went on to point out that the recipients were not going clubbing but rather they were going to work and should dress accordingly.

The news was broken by Allen & Overy insiders on the legal industry’s insider blog ‘Roll On Friday‘.

The story has a catchy headline and no doubt there will be many outraged employees who believe it is their right to wear whatever they want to work. Sorry to be the bearer of bad news, but in fact, that isn’t true!

From a practical point of view, I find the dress code is a very sensitive subject for most employers who struggle to get the tone right in terms of content, implementation and finally, managing any breach of the policy. Some find it so awkward that they don’t bother with a dress code at all and would rather deal with trangressions on an ad hoc basis. Not ideal!

But while employers have a right to require employees to dress appropriately they also have a duty to keep their employees informed of their policies and procedures and I applaud the firm’s intervention at an early stage.

Better to let employees know what is expected from the start than to turn a blind eye and hope things will improve without intervention. Not every employee burns the midnight oil reading the Staff Handbook and it is totally unnecessary to resort to disciplinary action in most of these cases if HR takes an educational and informative approach.

However, if the parties do end up in court an employment tribunal is likely to want to know what action HR took to make employees aware of the policy before taking disciplinary action.

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It looks as though government will reduce employee rights to unfair dismissal claims by requiring them to have worked for their employer for at least 2 or even 3 years before they qualify. Lord Young suggested that the government may introduce such a measure to assist small businesses during the economic recovery. However,Lord Young told Radio 4 that he would ‘listen to employers before making a decision’.

‘With respect Lord Young: Why bother…. like all employment lawyers I have been listening to employers for years and I can assure you the answer is a no-brainer! If you ask employees the same question you may get a very different answer but if you want to turbo charge business then it’s time to give employers a break. Just go for it. ‘

You can listen to the interview here. It’s a very positive message for small businesses. Plus you can read the brief paper setting out government priorities for small business by clicking on this link.

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Employees who claim a defence of whistleblowing to excuse themselves from misconduct allegations and dismissal proceedings need to think twice as demonstrated by this article in the Irish Times where a bank employee raided the Bank’s database to discover how much bonus his colleagues had been paid. Sour grapes or public interest?


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