Wright, Johnston & Mackenzie Solicitors

Misconduct dismissals and police involvement

In an unfair dismissal case, Secretary of State for Justice v Mansfield, the Employment Appeal Tribunal (EAT) held that where an employee facing disciplinary proceedings is, at the same time, being investigated by the police, the employer has a wide discretion on whether to continue with the internal disciplinary hearing or postpone it.

Mr Mansfield faced a police investigation in relation to allegations of planting drugs. At the same time he also faced a disciplinary investigation on the same matter. His employers opened their disciplinary investigation but then postponed it whilst the police investigated. Although all charges were eventually dropped, Mr Mansfield remained suspended by his employers throughout the police investigation.

When his employers resumed their internal procedures and a carried out a detailed investigation, they dismissed him at a disciplinary hearing. He claimed unfair dismissal and the Employment Tribunal concluded that there had been a “lengthy and unacceptable” delay in the proceedings leading to Mr Mansfield’s dismissal.

The Employment Appeal Tribunal (EAT) overturned this decision and found that the postponement could not properly be criticised as unreasonable. The EAT concluded that in a case of this kind both the length of the delay and the reasons for it need to be looked at.

Practical Implications: Delays in the disciplinary process may still render a dismissal unfair if they are substantial and there are no good reasons for them. Employers should try to move disciplinary matters along whilst ensuring that everyone has the opportunity to gather information and present their case fairly.

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Powers to construe or interpret contracts under the rules dealing with written particulars of employment

In, a case concerning holiday entitlement, Southern Cross Healthcare Co Ltd v Perkins & Others, the EAT found that an Employment Tribunal has jurisdiction to consider the proper interpretation of the terms and conditions of a written contract of employment.

The EAT considered whether the statutory rules concerning reference to an employment tribunal of a case based on an employer’s failure to provide employees with a written statement of terms and conditions of employment allow an employment tribunal to interpret the meaning of a contract of employment which has been issued but is ambiguous.

Section 11 of the Employment Rights Act 1996 allows an employee to ask an employment tribunal to determine the employee’s terms and conditions of employment where the employer has failed to issue a written statement of terms and conditions.

In Southern Cross a contract had been issued and amended and the EAT found that the real question was whether the statements of particulars of employment or amendment to them, confirmed what had been agreed between the employer and employee. If not, then the Employment Tribunal should amend or substitute the particulars accordingly.

Practical Implications: It is important to ensure that all employees have a copy of their particulars of employment and that they comply with the minimum statutory requirements and for employers to ensure that any amendments made to terms and conditions of employment are agreed in writing with the employee and recorded appropriately.

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Maternity Pay Quick Reference Guide

It can be confusing deciding just who qualifies for maternity pay.

WJM’s quick reference guide show you who is entitled to what. You can download a PDF here or open on screen.

For more information on maternity benefits and the practical implications of pregnant employees, please contact Laura McKenna through .(JavaScript must be enabled to view this email address)

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Dismissal for viewing pornography was unfair

The EAT has upheld a decision that the dismissal of an employee for watching pornography on a school computer was unfair. Whilst on the surface this decision might seem perverse, the facts of this particular case show that employers need to look at all the evidence being presented to them in some detail, especially medical evidence.

In City of Edinburgh Council v Dickson, the Council had, without investigating or understanding his medical condition, rejected Mr Dixon’s claim that his uncharacteristic behaviour was the result of a hypoglycaemic episode caused by his diabetes.

The Employment Tribunal held that the Council had come to a decision that no reasonable employer could have reached. The Council had rejected Mr Dickson’s explanation without properly investigating the evidence about his medical condition; they had taken into account the uninformed opinion of a third party and dismissed the informed opinion of the Council’s own occupational health doctor. Had the Council understood the evidence, they would have realised that it was capable of explaining Mr Dickson’s behaviour and his memory loss.

In reaching its decision the Tribunal applied the test set down in British Home Stores Ltd v Burchell which established that, where an employee has been dismissed for misconduct, a tribunal hearing an unfair dismissal claim must ask itself whether the employer (1) genuinely believed that the employee was guilty of the misconduct in question; (2) had reasonable grounds for that belief; and (3) carried out a reasonable investigation.  It found that, although the Council genuinely believed Mr Dickson to be guilty of deliberately viewing pornography, they did not have reasonable grounds for that belief and had not carried out a proper investigation.

The EAT did overturn the ET’s decision on the disability discrimination aspect of Mr Dickson’s claim, as there was no reason to suppose that the Council’s decision was influenced by Mr Dickson having diabetes.

Practical Implications: Proper investigation is necessary to establish a reasonable belief that there has been misconduct.  Additionally, although the need to consider medical evidence is more likely to arise in relation to a capability, rather than a misconduct dismissal, this case demonstrates that similar principles apply when an employee relies on a medical condition to explain or excuse misconduct.

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Changing terms without consent was lawful

The EAT has upheld an Employment Tribunal’s decision that an employer was entitled to introduce a new pay regime without the consent of its employees in accordance with a provision in its staff handbook. The provision, which was incorporated into the employees’ contracts, reserved to the employer the right to vary terms in that handbook unilaterally to reflect the changing needs of the business. 

In Bateman and Others v Asda Stores Ltd, the ET found that the introduction of the new regime was a significant change affecting how much employees would be paid for their work as well as removing benefits. As a general rule, such variations would normally need consent from both parties before introduction.  However, the ET held that the handbook did entitle the employer, as a matter of contract, to introduce the changes without the employees’ consent.

In reaching it’s decision, the ET followed the decision, set down in Wandsworth London Borough Council v D’Silva, that an employer can contractually reserve the right to amend contract terms unilaterally. As long as the variation falls within the contractual power to vary it, it will be effective, even if it results in financial loss to employees. 

The EAT upheld the tribunal’s decision. The wording in the handbook was clear and unambiguous. No consent was required as the employer was entitled to review the handbook and its provisions unilaterally and this included contractual and non-contractual terms.

Practical Implications: Employers, who have such provision within their staff handbooks and so can unilaterally vary terms of employment, do have to be careful as there may be exceptions to this approach, especially if they act so unreasonably that they breach the implied duty of trust and confidence.  Always seek advice before varying terms to avoid difficulties.

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Religious Discrimination: Appeal Refused

In McFarlane v Relate, the Court of Appeal has refused an application and dismissed claims of indirect and direct religious discrimination. The Court of Appeal held that there is nothing within the Employment Equality (Religion or Belief) Regulations 2003 or Article 9 ECHR that entitled Mr McFarlane to refuse to provide counselling services to same-sex couples.

Mr McFarlane joined Relate, who provide relationship counseling services for both same-sex and heterosexual couples, in 2003. He signed up to Relate’s equal opportunities policy which stresses that both same-sex and heterosexual couples should be treated equally. Mr McFarlane held strong religious beliefs which impacted on his actions in the workplace.

In 2006, Mr McFarlane asked to undertake a diploma course in psychosexual therapy, however he wanted to be exempt from any obligation to work with same-sex couples where sexual issues were involved. Relate raised this with Mr MacFarlane and made it clear that any such stance would be in breach of its equal opportunities policy. Relate then asked him to confirm that he would counsel same-sex couples with regard to any sexual issues involved.

Initially Mr MacFarlane agreed to this but subsequently it became clear that he would not honour the agreement. He then claimed direct and indirect religious discrimination claiming that Relate’s requests discriminated against his deeply held religious views.

In its decision, the Court of Appeal stated that there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief, and the law’s protection of that belief’s substance or content.  Only the former is protected by law.

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Reasonable Adjustment under Disability Discrimination Act 1995

The EAT’s decision in Chief Constable of South Yorkshire Police v Jelic, is that swapping jobs with someone else, or medical retirement followed by re-engagement, are capable of being reasonable adjustments for the purposes of the Disability Discrimination Act 1995.

Mr Jelic, a police officer, developed chronic anxiety syndrome. He became unable to deal with the public face-to-face and was found an alternative role, but this too developed into a public facing role. He subsequently became unwell and was retired early on medical grounds.

Mr Jelic could have swapped roles with another police officer, whose role did not involve face-to-face contact with the public or he could have been retired on medical grounds then immediately re-employed in a civilian support staff role.

The list of possible adjustments in the Act is not exhaustive, and there is no reason why retirement of an employee on medical grounds and his re-engagement in a new role cannot be a reasonable adjustment in terms of the Act.

The question is, in the particular circumstances each case, what steps are reasonable for an employer to take to be seen to have made reasonable adjustments

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