Employment and Trade Union Law
A relatively recent Employment Appeal Tribunal decision (Asda v Raymond) considers whether in order to conduct a reasonable investigation an employer should not only investigate what happened but also whether there are underlying causes for the conduct (why they happened). The claimant in the case was a lorry driver and parked his lorry in a … Continue reading Pissing in the wind
When considering a complaint of unfair dismissal the first decision an employment tribunal must make long, before there is any consideration of reasonableness of the decision, is what the reason for dismissal was, and together with that, whether the reason for dismissal is for one of the potentially fair reasons for dismissal. In many, and … Continue reading Employment tribunal forgets to consider reason for dismissal
I previously worked for an employer which did not have a sickness absence policy, every case in which an employee was absent was dealt with under its disciplinary policy. This was a strange and counterproductive approach to take as it conveyed a clear message to staff that to be ill to the extent that one's … Continue reading Sickness absence: a disciplinary or capability issue?
The Burchell Test, taken from the EAT's decision in BHS v Burchell is still, over 40 years after it was first delivered, the main (but by no means only) test by which the fairness of a conduct dismissal is judged. The three-fold test sets out three questions which must each be answered positively: Did the … Continue reading Health Related Investigations
Last week I concluded my series on the Supreme Court's decision in Jhuti. In the last post I raised a question of whether Jhuti applied if a person in the hierarchy of responsibility had knowledge which the dismissing manager did not have that did not change the reason for dismissal but was a factor that could … Continue reading Attribution of Knowledge in Unfair Dismissal
In 2005 Mr Orr, a Black Jamaican youth worker, was dismissed by Milton Keynes Council for misconduct. He was dismissed by a Mr Cove who heard the case against Mr Orr, and at which Mr Orr was not present. Mr Cove conducted the disciplinary hearing in good faith and, as noted, this resulted in Mr … Continue reading The Mind of the Decider (1): The case of Orr
The recent Employment Appeal decision in Radia v Jefferies International Ltd is a good case study in how established 'fair process' norms will not always render a dismissal unfair. Somewhat unusually since I tend to be critical of such deviation in this case it strike me that the decision is a reasonable one and that … Continue reading Failure to investigate misconduct before dismissing employee was not unfair
Is it misconduct for an employee to digitally record a disciplinary hearing without the employer's knowledge? This is of course a byproduct of what is likely to be a much more frequently uttered question arising from an employer's realisation that a dismissed employee has a recording of a fragment of a discussion in a disciplinary … Continue reading Secret Recordings
If you are a trade union representative one of the go to arguments you will often employ is that the employer is acting contrary to natural justice. Natural Justice can be summarised as comprising of two components: That a person accused of wrongdoing will be told what exactly they are accused of, given the chance … Continue reading Salmond, Natural Justice, and Unfair Employer Misconduct Investigations
I have written before about 'heat of the moment' resignations. The recent decision in Walker Smith v Perrys Motor Sales offers a good opportunity to look at this again, although I do not plan to look at the actual decision in Walker Smith in any great detail The general position in the employment contract is that a … Continue reading Resignations and Disciplinary Allegations
I referred to the case of Thomson v Imperial College Healthcare NHS Trust about a week ago in respect of disability related misconduct dismissals. The case has been more widely reported in respect of its unfair dismissal findings, however. The ACAS Code of Practice on Disciplinary and Grievance Procedures, which is intended to provide "basic … Continue reading Choice of Decision Maker made Dismissal Unfair
In recent weeks the Employment Appeal Tribunals judgement in Thomson v Imperial College Healthcare NHS Trust has been published. The key issue which has been attracting comment is the endorsement of the first tier tribunal's decision that a dismissal may be unfair because of the choice of the decision maker, even when there is no … Continue reading Disability and Disciplinary Dismissals
In an Employment Tribunal hearing the cross examination of witnesses represents the majority of a disciplinary hearing. By contrast in a misconduct hearing of an employee the overwhelming majority of hearings will feature no cross examination of witnesses at all. As was set out in R (Bonhoeffer) v General Medical Council in certain circumstances the … Continue reading Cross Examining Witnesses in Disciplinary Hearings
The Lancashire Telegraph is running a story on the unfair dismissal ruling of a former employee of Moorlands School in Clitheroe, Lancashire. Along with two other members of school staff of Moorlands School, a private boarding school in Lancashire, the claimant was supervising a school trip at which a number of pupils got drunk. Depending … Continue reading Unfair Dismissal and the Myth of Red Tape
This week the fate of Top Gear's Jeremy Clarkson should be decided. The background facts do not appear to be contested (although no-one external can know for sure): Clarkson got into some type of fracas in a canteen with a more junior colleague and hit him. I have not seen the BBC's disciplinary policy but … Continue reading The Obligatory Top Gear Employment Law Post
At the beginning of the month I posted What Will the Papers Say?, a piece on the High Court' s decision in Williams v Leeds United Football Club [2015] EWHC 376 (QB). Briefly, the claimant, then a Director for Leeds Utd FC, had sent pornographic images using the football club's IT to three people: Dennis Wise, … Continue reading Affirming Gross Misconduct
In recent mainstream media reports there has been a focus on the appalling racist chants of a group of a group of Chelsea fans; this story has an employment focus as at least one Chelsea fan, finance worker Josh Parsons, has now been suspended from his work in the aftermath of the incident. Time will … Continue reading What Will the Papers Say? Employment Law, Disrepute and the ‘Beautiful Game’
In 2013 the Employment Appeal Tribunal delivered its important judgement on trade union rights in Toal v GB Oils. The case was in the interpretation of the right of a worker to be accompanied at a disciplinary or grievance meeting by a trade union representative of their choosing. Section 10(2) of the Employment Relations Act … Continue reading ACAS Code of Practice after Toal v GB Oils
Back in 2013 the EAT issued the the important decision in Brito-babapulle v Ealing Hospital NHS Trust [2013] UKEAT 0358_12_1406 which that found that the Employment Tribunal's finding that "[o]nce gross misconduct is found, dismissal must always fall within the range of reasonable responses" was an error of law. Specifically, "the Tribunal misdirected itself as … Continue reading Brito-Babapulle, Mark II
The central case dealing with the fairness of conduct dismissals is undoubtedly British Home Stores Ltd v Burchell [1978] UKEAT 108_78_2007. It was this case that is the source of the "Burchell Test", here it is in the judgement itself: What the tribunal has to decide every time is, broadly expressed, whether the employer who … Continue reading Dismissal and Culpability
