Section 94 of the Employment Rights Act 1996, if read in isolation, gives a very valuable right to all employees – the right not to be unfairly dismissed. However, by a series of qualifications what sounds a universal right is in fact only of benefit to a smaller percentage of employees. The Labour Party Manifesto has committed to righting one of those exclusions (which was the subject of my post yesterday by promising that a majority Labour Government would extend rights to claim unfair dismissal to all workers (the tweet below is old but the manifesto commits to “ending bogus self-employment and creating a single status of ‘worker’ for everyone apart from those genuinely self-employed in business on their own account.”

Perhaps the largest group excluded from this right are those who have at the time of their dismissal been employed for less than two years. When the legislation was passed it was a 6 month qualifying period, later one year and was increased to two years by the Tory and Liberal Democrat government in 2013. Quite why it was reasonable of Parliament to decide that an employer should not dismiss someone unfairly after two years of employment but give a green light to employers to do so if they a newer recruits is a mystery, particularly given the bar to a dismissal being unfair is so high anyway.

My reading of the manifesto is that this too will be remedied with Labour committing to “Giving everyone full rights from day one on the job.” John McDonnell last year also made the same commitment in a speech to the TUC saying a Labour government would

“extend full rights to all workers including so-called “limb b” workers entitling everyone in insecure work to sick pay, maternity rights, and the right against unfair dismissal from day one of their employment.”

Along with a dedicated non-individualised employment rights enforcement body meaning that the primary redress need not be an individual pitting themselves against a much larger employer alone this is a very positive move.

The recent viral news reports about Newcastle University’s dismissal of a worker for making what he alleges is the result of an email auto-correct error is a good case in point of the deficiencies of the current protections.  Based on media reports (and so they should be taken with some scepticism) the facts are:

  • Ollie de Planta de Wildenberg had been employed for just four days when he sent an email to a colleague, addressed as “Hi Hash Brown”
  • The employee claims this was an accidental ‘auto-correct’ the employer claimed this email was perceived by its recipient and offensive and racial language.
  • After the email there was an informal discussion with the line manager who highlighted error. Issue was ‘laughed off’ and accepted as a mistake.
  • During the day there was some sort of investigation and later that day he attended a disciplinary meeting and was dismissed for gross misconduct.

Offensive and racist language is very serious and I have no problem in thinking that such conduct, if proven, is potentially gross misconduct – meaning conduct that means an employer is often entitled in summarily dismissing an employee. Summary dismissal simply means dismissing an employee without notice pay. Whether “Hi Hash Brown” is racial language is an objective matter and while on the face of it it is hard to see how that would be the case I accept that it is possible in the specific context of the case (which is not in the public domain) that it is. I am though concerned that the test applied is not ‘is this racist’ but did someone perceive this is racist – the test for an employer should be an objective one, not a transferred subjective one.

However, even if there is a good evidential basis that the emails was intentionally sent and had racist overtones that would most certainly warrant an employer commencing a disciplinary action there is in my mind no justification for the breakneck speed it was conducted within. In this case this required the employer investigating the investigation, serving notice on the employee, convening a disciplinary hearing, considering employee representations, making a decision on whether misconduct was proven, making a decision on the level of misconduct, and issuing the decision all within less than one working day. 

To give just one example the ACAS Code of Practice states that “The meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.” It is ludicrous to consider that an employee can have been given “reasonable time to prepare their case” within less than one day, since this would also be time in which the employee could seek union advice. In an unfair dismissal context it is noteworthy that 24 hours notice was itself insufficient to allow an employee to prepare an employee for a disciplinary hearing which made a dismissal unfair in Linwood v BBC (2014).

Here, even granting for the sake of argument that there is an evidential basis to the allegation of offensive racial emails to a colleague it seems to be that the employee here would, had he been employed for two years, have had a reasonable case that he had been unfairly dismissed contrary to section 94 of the Employment Rights Act 1996 because the Newcastle University had acted with total disregard to any fair disciplinary process.  However, the fact that Newcastle University knew that however recklessly it acted they would have no risk that they would face any scrutiny following an unfair dismissal claim could well explain why it threw out any pretence of procedural fairness in the manner in which it engineered the dismissal.

As it stands on the current law Ollie de Planta de Wildenberg would have no redress against his dismissal except a pretty much meaningless wrongful dismissal claim (on basis there was no gross misconduct and that the disciplinary process was a breach of trust and confidence which would only give him his notice pay if successful) or a defamation claim (regarding the allegation he was a racist). Neither of which are likely to be realistic avenues.

And this is why a commitment  that from day one all workers will be able to have remedy against unfair dismissals is so important. Had Newcastle University had reasonable evidence concerning gross misconduct of Ollie de Planta de Wildenberg it would still be able to discipline and dismiss him fairly, but it would need to also ensure it followed a fair process to do so. Labour’s commitment means – if elected as a majority government – that for the first time that employers will not given a green light by the government to treat workers with less than two year’s employment with disdain; it will also mean that the right given in the words of section 94 of the Employment Rights Act 1996 that every “employee has the right not to be unfairly dismissed by his employer” will for the first time since enacted be true to all employees. Indeed, not just employees, but all workers.

For trade union reps such as myself who have seen multiple gross injustices to short serving employees with no viable means of redress this is a proposal that will have a marked impact on some of the most vulnerable workers in employment by ensuring length of service is not a barrier to being treated fairly by one’s employer. If an employer rips up the rulebook for fair investigation and disciplinary policy there will now be an effective remedy against that.