Employment Briefing - October 2013

Grievance and Disciplinary Hearings and Dismissal Appeals are matters which employers are often anxious about and it’s not always clear what is expected from them. This month’s Bulletin highlights recent developments in relation to these complex issues.

• Gross misconduct might not necessarily justify instant dismissal
• Right to a Companion
• Balancing privacy against free expression in the Employment Tribunal
• Effective cause of an Employee’s Resignation
• Last Chance to Book! Protected Conversations - FREE Seminar, Inverness, 24th October
• Sign Up to Employment Briefing

Gross misconduct might not necessarily justify instant dismissal

Brito-Babapulle v Ealing Hospital NHS Trust concerned a claim by a consultant haematologist at Ealing Hospital. Despite being certified sick and receiving sick pay from her NHS employer, Ms Brito-Babapulle continued working for her private patients during her sickness absence. Ealing Hospital dismissed her for gross misconduct, describing her behaviour as fraudulent. Her dismissal followed what the Employment Tribunal (ET) deemed to be a ‘fair process’ and ‘reasonable investigation’. Ms Brito-Babapulle’s appeal against her dismissal was unsuccessful and she brought a claim of unfair dismissal.

The ET concluded that the Hospital’s decision to dismiss fell within the range of reasonable responses following a finding of gross misconduct.

Ms Brito-Babapulle appealed the decision and the Employment Appeal Tribunal (EAT) said that a Tribunal should not jump straight from a finding of gross misconduct to a conclusion that dismissal was within the range of reasonable responses. The EAT held that the Tribunal should have considered any mitigating factors, such as the length of Ms Brito-Babapulle’s otherwise exemplary service and the consequences of dismissal from the NHS. On this basis, the EAT remitted the case back to the Tribunal to consider this point. It’s very likely that the ET will arrive at the same conclusion, but it must take into account these mitigating factors.

Employers should not assume that a finding of gross misconduct will necessarily justify instant dismissal. The Employer should be seen to consider any mitigating factors, such as an employee’s length of service, any provocation, prior clean disciplinary record, etc. before reaching any conclusion. Ultimately, it may reach the same conclusion, but the correct approach should be adopted to avoid any criticism.

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Right to a Companion

Section 10 of the Employment Relations Act 1999 entitles a worker to be accompanied at a disciplinary or grievance hearing by a trade union official or a fellow worker. To trigger that right, a worker must ‘reasonably request’ to be accompanied at the hearing.

According to the EAT in Toal & Another v. GB Oils Ltd, where an employer refused to allow the worker to be accompanied by an elected trade union official, the discretion to choose a representative must belong to the worker and not to the employer.

The EAT confirmed that the only limitations set out in the legislation are that the companion is a trade union official or a fellow worker. Otherwise, workers have an absolute right to choose their companion.

Unhelpfully, this approach seems to be at odds with the guidance contained in ACAS’s Code of Practice on disciplinary and grievance procedures. This guidance states that it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing. Nevertheless, the EAT confirmed that the statute is perfectly clear on the point and no further limitations on the worker’s right exist.

Although this is a controversial decision, and may face further scrutiny in the future, the position as stated by the EAT is that there is no requirement for a worker’s companion to be reasonable in the eyes of the employer. Any employer that rejects a request to be accompanied on this basis will be acting unlawfully. Whether this decision will be enough to deter employers from rejecting a worker’s request to be accompanied by someone who potentially prejudices a hearing remains to be seen. An employee may be further deterred from raising a claim on this basis in light of the introduction of Tribunal fees, as reported in last month’s Employment Bulletin.

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Balancing privacy against free expression in the Employment Tribunal

The threat to the reputation of businesses and affected individuals is a key consideration for an employer when assessing the commercial risk in otherwise defendable claims. However, revisions in this summer’s changes to Employment Tribunal procedure suggest that Tribunals will have greater power and flexibility to reduce the threat posed by ‘ransom’ allegations included in employment claims.

For example, such a tactic by an employee may involve making potentially damaging claims about a senior executive’s behaviour, personal life or beliefs. The expectation being that a business will pay out of a claim rather than face the threat of damaging publicity.

he new rule 50 to the Employment Tribunal regulations allows a Tribunal to restrict reporting, give parties’ anonymity or for the tribunal to sit in private. The Tribunal will consider these steps where the ‘interest of justice’ or ‘Convention rights’ of others are engaged, including the privacy of others involved in the dispute. It is the practice of the Tribunals for employment judges to consider whether to make such an order when they carry out the initial sift of the case, but a party can of course make an application for such an order at any stage of proceedings.

Recognising bogus allegations from legitimate grievances should be approached with care, as will the balancing of such protection against the presumption in favour of open justice. The application of this revision to procedure will soon become apparent in practice. The revision does not completely remove the commercial risk to reputation contained in some claims. However, allowing the Tribunal to balance the privacy rights against free expression will give employers an alternative to just immediately settling a rogue claim.

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Effective cause of an Employee’s Resignation

In Wright v North Ayrshire Council, the EAT has provided some clarity on the correct test for determining constructive dismissal claims and the extent to which an employer’s contractual breach should effectively cause a resignation.

Ms Wright was employed as a Care Assistant by the Council until she resigned in 2010. She brought a claim for constructive unfair dismissal on the basis that three grievances she had submitted to her employer had not been properly answered. The ET agreed, however, found that there were other contributing factors which were the effective cause of her resignation. Ms Wright was experiencing very difficult personal circumstances, her mother had recently passed away and her partner had suffered a stroke. As well as resigning because her grievances were not dealt with she resigned to become a full-time carer to her partner.

The EAT confirmed that to successfully bring a claim for constructive dismissal, the contractual breach that results in the employee’s resignation does not necessarily need to be the principle reason for the employee’s resignation. The contractual breach by the employer only needs to be “an” effective cause of resignation and not “the” or most important effective cause.

Ms Wright’s claim has been referred back to the ET to determine whether the Council’s actions played a part in her resignation. If the Tribunal concludes they did not, then her claim will fail, but if it decides the opposite, the claim will succeed.

The result of this approach may prove crucial where an employee has secured alternative employment following resignation. It will be easier for employees to argue that the employer’s conduct was an effective cause rather than the principal cause of resignation. Furthermore the extent of the role played by an employer’s breach will be taken into account when calculating the compensation award.

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Last Chance to Book! Protected Conversations - FREE Seminar, Inverness, 24th October

Protected Conversations - Helping Employers Prepare

The law has recently changed to allow employers and employees to enter into discussions to end employment on a confidential basis. While this can offer obvious advantages to employers who can speak freely regarding “difficult” issues, there are traps for the unwary in relation to what can, and cannot, be discussed.

WJM’s award winning employment team will present an informative and entertaining seminar, featuring role play, to show how to protect employers from the pitfalls, with plenty of opportunity for any questions you have to be answered.

This event is free but pre-booking is essential.

Book now for this FREE event through the ‘Book Now’ link below or via events@wjm.co.uk  stating which location you are booking for.

The details:
Date: 24th October 2013
Venue: Kingsmills Hotel, Culcabock Road, Inverness, IV2 3LP
Time: 5.00pm – 7.00pm, includes drinks & canapés
Cost: Free, but pre-booking is essential

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Sign Up to Employment Briefing

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For further information on these or any other employment issues, please contact:

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Liam Entwistle lae@wjm.co.uk.

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