Employment Briefing - April 2013
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- Reasonableness of Investigation in Gross Misconduct
- Control: The Acid Test for Identifying an ‘Employee’
- Telling Tales out of School
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Reasonableness of Investigation in Gross Misconduct
What is the extent of the reasonable response required by an employer when an employee is accused of gross misconduct?
The ‘range of reasonable responses’ test comes from the Employment Rights Act 1996. The test is applied by tribunals to determine whether in, any given situation, an employer has acted in the way expected of a reasonable employer. The test is most commonly applied in cases of alleged unfair dismissal. If the employer is responding to an incident in the way expected of a reasonable employer then the dismissal may be fair. If they are found to be acting outwith the range of reasonable responses then the Tribunal may decide that the dismissal was unfair.
In the recent case of Stuart v London City Airport, the tribunal was asked to consider whether the airport had demonstrated a reasonable response when, following accusations of an employee’s gross misconduct, it decided not to carry out a full investigation.
Mr Stuart was a ground services agent at London City Airport. He had worked at the airport since 2005. In December 2009 he entered Nuance, a duty-free store within the airport, to buy some Christmas presents. He was holding various items while queuing at the till when a colleague called on him from outside the store. Mr Stuart wandered outside the store boundary to have a conversation with his colleague, at which point he was accused of stealing the items he was holding.
After a short investigation Mr Stuart was dismissed on grounds of gross misconduct. The decision was based on a statement given by a store assistant, who claimed to have seen Mr Stuart conceal items in his jacket before leaving the store. Mr Stuart immediately took an internal appeal against his dismissal. He repeatedly offered the explanation that he had not realised he had left the shop as there are no clear boundaries marking the different shops in the airport. He also maintained that he had always held the goods in his hands, and had not concealed them, and he maintained that he clearly intended to pay for them.
During the internal appeal, airport management did not interview the store assistant or the colleague who beckoned Mr Stuart out of the store. They also failed to consider available CCTV footage of the Mr Stuart’s movements inside the store. The footage would have assisted in determining whether the alleged concealment under his jacket, which would have provided conclusive proof of dishonest conduct, actually took place. They refused Mr Stuart’s appeal and his dismissal was confirmed.
Mr Stuart brought a claim for unfair dismissal to the Employment Tribunal (ET). He claimed that the airport’s investigations had not been reasonable and therefore his dismissal was unfair. The ET rejected this and ruled that the airport had acted reasonably. Mr Stuart then appealed the decision to the Employment Appeal Tribunal (EAT). The EAT decided that the behaviour of Mr Stuart’s employers had been unreasonable and that accordingly the dismissal was unfair. The EAT explained that where an employee is employed in a position of trust, and allegations are made which imply a breach of that trust, careful and thorough investigation is always required.
Practical Implications: Allegations of gross misconduct and decisions regarding dismissal of employees generally should always be handled with extreme caution. Getting the decision wrong could mean a costly tribunal process and award of compensation. The WJM Employment Team can advise you on the policies and procedures to have in place to ensure these situations are handled effectively.
Control: The Acid Test for Identifying an ‘Employee’
In employment law an ‘employee’ enjoys many more rights than a ‘worker’, so it always important to consider which definition any given individual would fall under. This is especially important when it comes to terminating the employment relationship.
An employer must have control over an individual in order for them to meet the definition of an ‘employee’. The amount of control required was considered in the recent case of White & Todd v Troutbeck SA.
Mr White and Ms Todd were caretakers at Starcross Farm Estate in Surrey. They carried out estate management including maintenance of the house and grounds and housekeeping. The absentee owners only visited twice a year so they had a significant level of freedom as to how they carried out their work.
There was a signed agreement that stated that, “the owner shall employ the caretakers/ managers as caretakers/ managers of Starcross Farm”. When, in 2010, they received termination notices a dispute ensued as to whether they were ‘workers’ or ‘employees’ and which employment rights applied to them.
There was a contract in this case, which clearly stated that Mr White and Ms Todd were ‘employed’. However there was a disagreement as to whether the contract amounted to an employment contract despite this.
Mr White and Ms Todd brought a claim to the Employment Tribunal. The ET decided that the key question was whether Troutbeck SA exercised day-to-day control over Mr White and Ms Todd. It concluded that this level of control was lacking at Starcross Farm so no employment contract existed. They were workers, not employees, and therefore entitled to less protection.
Mr White and Ms Todd appealed the decision to the Employment Appeal Tribunal (EAT). The EAT decided that actual day-to-day control over the employee was not required. It explained that, although the level of control is a factor in determining whether an individual is an ‘employee’, it is not the only factor. The question the ET should have asked itself was whether there was a contractual right of control. There was contractual right of control here, how often Troutbeck SA exercised this was irrelevant, and so Mr White and Ms Todd were to classed as employees, not workers, and therefore they were entitled to greater protection.
Practical Implications: It is easy to assume that just because a contract clearly states that it is an employment contract that it is, in fact, an employment contract. However this is not the case. Employment law looks behind the black and white letters in contracts and considers the actual nature of the relationship between the parties to determine what rights and responsibilities exist. The opposite can also be true – you may deliberately state that no employee/employer relationship exists to avoid it, but the nature of the relationship could mean that a tribunal will apply ‘employee’ status despite the contract. There are many factors to take into account. The WJM Employment Team can provide practical advice to ensure you secure the employment relationships you mean to, and avoid those you don’t
Telling Tales out of School
In the recent case of Hill v Governing Body of Great Tey Primary School, the Employment Appeal Tribunal (EAT) considered several matters in relation to the well-publicised sacking of a primary school dinner lady.
Ms Hill was suspended because she told a child’s parents that their daughter had been tied to a railing in the playground and whipped with a rope across the legs by other pupils. She reported her suspension to a local newspaper. Ultimately, this led to her dismissal on the grounds of breach of confidentiality and acting in a manner likely to bring the school into disrepute.
The case was primarily concerned with compensation and was eventually decided on procedural grounds. However it did raise interesting questions as to what employers can do if employees publicly disclose confidential information.
Of particular interest is that, in assessing whether dismissal is a proportionate response to the leak of information, the EAT said that it is relevant to consider the accuracy and reliability of the information, whether more discreet means of passing on the information are available and the motive with which the information is revealed such as whether it was in the public interest.
Employees owe their employer a duty of loyalty, reserve and discretion. Disclosures by employees of information obtained during the course of their work have to be examined in light of that duty. There are also specific provisions dealing with confidentiality in many employment contracts. However there are human rights issues such as freedom of expression and public interest questions to consider. The result is a potential minefield for all involved.
Practical Implications: UK legislation protects freedom of speech, particularly in matters of public interest. However a balance must be struck between the rights of employees and the interests of employers in protecting confidential information from leaving their organisations. The WJM Employment Team can help you ensure the appropriate contracts and procedures are in place to limit your exposure to breaches of confidentiality and can advise you on how to handle disclosures which have taken place or which may take place in the future.
