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Posts Tagged ‘dismissal’

A managing director was dismissed in preparation for a TUPE transfer and the EAT has held that this amounted to unfair dismissal.  It also found that there was no ETO (Economic, Technical or Organisational reason) defence because a company cannot operate without an MD. Good point! For those delegates who have recently attended my TUPE workshops I hope that EAT decision makes sense. Reference: Spaceright Europe Ltd. v Baillavoine.

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A male employee challenged the special treatment given to a colleague during a redundancy selection and argued that his employer had acted ‘disproportionately’. He claimed that during the firm’s consultation he had been treated less fairly than his female colleague, who was given full marks on certain performance criteria despite being on maternity leave during the consultation period.

This week the Employment Appeal Tribunal agreed with his argument and you can find more case details at The Lawyer.

If employers have to reduce employee numbers and there are at least two employees in the pool, one female on maternity leave and a male colleague, then this case may suggest that employers use proportionate scoring methods rather than awarding the female employee top marks as a knee jerk reaction. More will be revealed as commentaries emerge in coming weeks.

Quite the opposite was happening in this case of redundancy selection for reasons of maternity where bosses decided a woman with young children wouldn’t be able to ‘put in the hours’ required by the job!

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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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Some companies pay full pay during sickness absences and it is not unusual for them to include a clause that enables them to refuse to pay if the employee’s accident results from them engaging in dangerous sports outside of work or they may seek to claw back payments from 3rd party insurance settlements. It does seem harsh to dismiss an employee who has, perhaps through no fault of their own, been involved in an accident especially if the financial liability from the company’s perspective is only SSP; however I understand that it may also cause you difficulties in terms of covering her work during her absence.

In which case, if the employee is not suffering from a disability and if there is nothing in her contract to prevent you dismissing her now, and if there are no other factors at play which may amount to discrimination or unfair dismissal then you could let her go on grounds that she was unsuitable for the post because as you say, she is a new starter and would not ordinarily have unfair dismissal rights.  Please note that I have included a lot of ‘ifs’ in that answer so it would be advisable to get an employment lawyer to look at the particular facts of the case before you end her employment.

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