Employee was unfairly dismissed despite breach of safety rules

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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‘Self-employed’ can be employees

The Employment Appeal Tribunal has ruled that a lap dancer described as being self-employed and working intermittently was an employee.

This case concerned a lap dancer who worked under various contractual documents several of which she had not seen. The relationship between her and the lap dancing club was generally understood in the industry to be one of self-employment. She was required to work two Mondays and two Sundays per month as directed by a rota and was required to attend weekly meetings. She was paid by the club by way of ‘Heavenly Money’ vouchers (a money substitute) that she received from clients and redeemed from the Club subject to agreed deductions. She could not take extended holiday and, if she was absent for more than a month, she had to re-audition.

After being dismissed by the club for misconduct she presented a claim for unfair dismissal. In order to succeed in that claim it was necessary for her to establish that she was an ‘employee’ of the Club and had been continuously employed by them for at least a year.

The Employment Appeal Tribunal, taking into account the specific facts of the case held that she was an employee. This needed (1) a “money’s worth for work’s worth” bargain, (2) control by the “employer” and (3) the requirement for her to do the work personally.

It was enough for (1) that she had to attend the Club on the rostered days in exchange for the opportunity of doing work for which remuneration would be available. It did not matter that she was not guaranteed payment or that she was paid indirectly through vouchers from customers. The Appeal Tribunal said that it could be enough for an employment contract that the employee agreed to work to gain experience or to enhance her reputation or for accommodation or payment of tuition fees to a university.

The requirements of control and personal service were found satisfied.

The Employment Appeal Tribunal also decided that the employment contract continued between engagements. This was because the dancer had to turn up for the weekly meetings and was subject to sanctions if she did not. She was also expected to attend for the Monday and Saturday dancing engagements listed for her twice a month.

For periods in between of less than a week, legislation provided for continuity of employment. For her comparatively few longer absences of two to six weeks, the Appeal Tribunal decided on the facts that there was an umbrella contract and her employment status continued while she was away.

The Employment Appeal Tribunal remitted the case to the employment tribunal to consider her claim for unfair dismissal and a tax-related illegality defence raised by the club.

Reference: Quashie v Stringfellows Restaurants Ltd

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Qualifying period for unfair dismissal claims

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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Unfair dismissal rights changing in 2012

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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Railway hero sacked for gross misconduct

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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Managing Director fired in preparation for a TUPE transfer

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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Employers will benefit as the state is rolled back

Ken Clarke, the Justice Secretary, has said that he will slash the Legal Aid bill by more than a third. As a result lawyers fear they will lose out on tribunal fees and that their most vulnerable clients will lose out on access to justice ~ and they are probably right to be concerned.

Of course, the immediate winners will be the employers who can rest a little easier knowing that it will be much more expensive for an employee to pursue an unfair dismissal claim.

However, that isn’t the full story because workplace disputes won’t simply evaporate, they will move to another venue. The cut and thrust of the tribunal will give way to the diplomacy of mediation meetings and I expect lawyers will catch on pretty quickly and give their mediation skills and experience higher billing than has traditionally been the case.

Here is the interview with KC on Radio 4.

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Employers’ power to sack employees to increase?

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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WalesOnline – News – Wales News – Series of errors led to sex offender living with children

WalesOnline – News – Wales News – Series of errors led to sex offender living with children. Social worker sacked for placing sex offender with family with young children sues employer in tribunal.

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