The Effective Date of Termination (Dismissal)

In order to make a valid unfair dismissal complaint an employee needs to begin the employment tribunal claims process (nearly always by starting the ACAS Early Conciliation process) within three months of their effective date of termination (EDT). Therefore, establishing what the EDT is among the primary duties of any union rep when advising whether a member has a good unfair dismissal claim.

With the harsh approach to time limits the employment tribunals apply with their “reasonably practicable” test the sad fact is that many many substantively good employment tribunals have been dismissed because of a miscalculation of an EDT.

The general rule is that an employee EDT is the date the dismissal is communicated to the employee. As I have discussed previously the Supreme Court in Gisda Cyf (2010) clarified that the EDT is effective only at the time when the notice of termination is either received and read by the employee or would reasonably have been read. This means that calculating the EDT can be more difficult (but helpful to employees) because the EDT is judged by more than just, for example, what date a letter was sent.

As a rule of thumb however it is always best in cases where a dismissal has been first communicated by post to err on the side of caution and calculate the EDT from the date of the letter, that way any claim will always be in time.

In the remainder of this post I want to offer some brief technical situations in addition to the issue of when a letter was read where the EDT may differ from a date calculated from a date a letter was sent.

First, and most commonly, if an employee is informed in a face to face meeting that they have been dismissed and that is followed up by a letter confirming this then the date that needs to be used is the date the employee was informed.

Second, if a union representative of the employee (or a solicitor acting for an employee) is informed of the dismissal before the employee and then informed the employee then it is this date, and not the date the employee is informed of the dismissal directly by the employer that should be used as the starting point for calculations. This principle was set down in the Employment Appeal Tribunal’s decision in Robinson v Bowskill & Ors [2013] UKEAT 0313_12_2011. In that case an employee was dismissed in her absence on 6 July and an email to the claimant’s solicitor was sent informing them of this that same day. The next day (7 July) the solicitor told the employee what the email said and the following day (8 July) the employee received a dismissal letter from her former employer. The case turned on whether the EDT was 6 July (the date the solicitor was informed), 7 July the date the solicitor informed the employee, or 8 July (the date the employer directly informed the employee). Applying the Gisda Cyf case referred to above the EAT decided the employee still needed to directly know of the dismissal but it did not matter that it was the solicitor whom had told her.

Third, where a letter is is a dismissal letter giving a period of notice then unless there is a clear contractual provision to the contrary then the notice period should begin on the day after the letter was sent, not the day of the letter. This was set out in the EAT decision in Wang v University Of Keele [2010] UKEAT 0223_10_0804. For example, if an employee receives and reads a letter dated 8 June 2019 giving him one moths notice then adding that one month would appear to give an EDT date of 8 July 2019.  However, applying the principle in Wang that the notice period starts the following day, namely 9 June 2019, means the actual date of dismissal would be one day later on 9 July 2019.

Finally, an employee is often dismissed and told not to attend work during the notice period. Here the question of when the EDT is will be very case specific. If the employee is dismissed immediately and is given a sum to pay for the sums she would have received during her notice period then the date should be calculated from the date of the dismissal decision. However, if the employee is simply asked to stay at home for the notice period then this is likely to still be pre-dismissal work and so the EDT will be the date that ends.

The most important advice on EDT remains as it was stated at the beginning of this post however. If the EDT is unclear it is best to assume the date is the earliest one possible.

The Right to Accompaniment and Unfair Dismissal

I have discussed the right of accompaniment on this blog before in the context of the worker’s right under section 10 of the Employment Relations Act 1999. One component of that right is an explicit right that if a worker’s chosen companion at a formal grievance of disciplinary meeting is unavailable then the worker can put forward another time and date within five working days of the meeting and the employer is normally required to accommodate that alternative time. If they do not then a worker could pursue a tribunal claim for that specific breach but also potentially that that failure also made the dismissal unfair.

In the context of this relatively common situation the decision of the Employment Appeal Tribunal in Talon Engineering Ltd v Smith [2018] IRLR 1104 EAT  offers a helpful clarification.

The relevant facts of the case were that the worker (Smith) was accused of misconduct and was invited to attend a disciplinary meeting. Mrs Smith wanted to be accompanied by her Unite representative and informed her employer of this. However, the union representative was unavailable for two weeks and suggested a three dates date for a meeting. This was not therefore a request for an adjournment under section 10 of the Employment Relations Act 1999 as the proposed date was more than five working days in the future.

The employer refused to defer the meeting until the rep was available and, because of that refusal, Mrs Smith refused to participate in the dismissal hearing. Mrs Smith was consequently summarily dismissed.

The EAT upheld the employment tribunal’s decision that the even though there had been no breach of Mrs Smith’s rights under section 10 of the Employment Rights Act 1999 it did not follow that the decision to refuse the adjournment request was fair for the purposes of the different unfair dismissal test in section 98(4) of the Employment Rights Act 1996. In the particular circumstances the refusal of the adjournment made the dismissal unfair.

Of course, this does not mean the employer must always agree to an adjournment if a rep is unavailable but it does show that the knee-jerk reaction of employers such as that displayed in Talon  to refuse any adjournment that does not meet the section 10 minimum requirements can run an employer into difficulties. Talon is a useful case for a rep to be aware of to equip them to  question such knee-jerk reactions.

All’s Fair?

Being ‘fair’ is, according to to Cambridge Online dictionary, the act of treating someone in a way that is right or reasonable.’ That being the case when the Employment Rights Act 1996 boldly asserts that every  employee “has the right not to be unfairly dismissed by his employer” it looks like Parliament made an expansive and meaningful law in defence of workplace justice.

A closer look will show that by a series of ‘ifs and buts’ the expansive right against unfair dismissal has been whittled down to a much smaller proportion of the UK workforce applying only to employees and not workers, excluding major public service workers like the armed forces and police, only those who have been employed for two years or more, etc. In the interests of plain English section 94 of the Employment Relations Act should perhaps read “some employees have the right not to be unfairly dismissed by her employer.”

However, one of the more important lessons I have learned representing employees and applying employment law to their situations is that even for those who do have this right not to be ‘unfairly’ dismissed the concept of fairness really is not the focus of unfair dismissal law. If it were, the focus of the unfair dismissal decision would be on whether the decision to dismiss was justified but, instead it is on whether in the mind of the decision maker acted reasonably by making a decision that was within a ‘range’ of allegedly reasonable decisions they could have made.

And so, as it has been applied by the courts there is nothing intrinsically unfair in an employee being dismissed from a job for misconduct even if the tribunal can categorically see that the employee was not guilty of the alleged infraction so long as at the time (perhaps before the evidence was available) the employer acted reasonably at the time of dismissal. Or, to use a real life example (Parr v Whitbread [1990] IRLR 39), there is nothing intrinsically unfair in an employer dismissing four employees because the employer thinks one has probably stolen from them but they cannot tell which one (if any). It is ‘fair’, so says the EAT, for the employer to dismiss all four employees, potentially placing four or more families into poverty, despite knowing three are innocent and the other may be as well.

Such a scenario is, far from being fair, actually fairness’ antithesis. What an employee has is not the right not to be unfairly dismissed but the right to be dismissed for a ‘potentially fair reason’ so long as some imprecise procedural formalities are adhered to by the employer. I cannot help but think the UK population have been sold a dud, they either don’t join a union or if they do, only do so on a insurance basis believing if their employers treat them unfairly there is an adequate redress in unfair dismissal law when there isn’t.

I recall one case in which an employee was unfairly dismissed, victimised on the basis of trade union activities in fact. The union, rightly, adopted an industrial response and strike ballot in response alongside legal challenge. The employer’s inevitable response in dissuading workers from voting to take industrial action was to say that if said employee felt he had been treated unfairly he could complain to a tribunal that he had been unfairly dismissed. In the rare cases of an industrial response to a dismissal this is I am sure a common response depending on workers not looking too closely what ‘fairness’ really means.

Of course a major impetus for the establishment of the employment tribunal system was to move disputes from the industrial to the tribunal arena and there is no doubting that has happened. In view of the inadequacy of employment law to deliver on the grand claims that there is a right not to be unfairly dismissed perhaps it is time to start making industrial responses to unfair dismissals a more central plank of union organising alongside lobbying for laws that protect workers from dismissal and warnings that actually place fairness at their core.

Salmond, Natural Justice, and Unfair Employer Misconduct Investigations

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 to provide a defence,  reasonable time to prepare, be provided access to the evidence against them before a decision on whether they are responsible for the misconduct is made.
  • That the investigation and misconduct will be taken by persons who are impartial and have not been previously involved in any investigations.

That, broadly stated, is all that natural justice requires.

Natural justice has recently hit the headlines in the context of Alex Salmond, the former SNP leader, and his Judicial Review against the Scottish Government.

A year ago, in the wake of the #metoo movement two sexual harassment complaints were made against Mr Salmond regarding his time in government. The government, quite properly, launched an investigation into the allegations. The Permanent Secretary Leslie Evans (head of the Civil Service for the Scottish Government) appointed an HR investigator to investigate the allegations. However that HR Officer had already had some involvement in the concerns and had spoken to the complainants about the matters some time earlier. 

The Court found this was a very serious procedural error, that amounted to a breach against Alex Salmond’s natural justice rights, specifically the right of accused to be subject to an impartial investigation without the appearance of bias. Instead, having been investigated by an party with previous knowledge and involvement of the matter at hand the court took the view that this was a fundamental error and, in so doing, the results of the investigation could not stand. In making the judgement the court did not find Alex Salmond had not engaged in sexual harassment but that any investigation that had been undertaken could not stand because of bias. 

The court, in my view were right to do so in recognition of the rule of law and the need for fair processes to be scrupulously applied to all. If there was a view that a quick investigation could resolve the matter then the Scottish Government made a serious error because, as the Guardian notes, this error has caused harm to the government’s reputation and should further complainants contemplate coming forward they may now be dissuaded from doing so. The judgement of the court recognises that its requirement to apply the rule of law would make it prejudicial to allow a procedural unfair investigations to stand and to dissuade the investigators from pursuing arbitrary investigations in the future. 

What then does this mean for employment investigations? One would think, that the Employment Tribunal would take a similar approach, especially given the centrality of rule of law considerations in the Supreme Court’s recent consideration of employment justice in R v Unison (the ET fees case); such a view is false, however. In fact, the court of Appeal have expressly stated that the principles of natural justice do not form a basis for an appeal that an employee was unfairly dismissed. In Slater v Leicestershire Health Authority [1989] IRLR 16 it was determined that: 

[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . . I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [Tribunal] consider the question raised in s[98(4)] of the Act.’

I think this is wrong. Why should the remedy in public law whereby a serious procedurally unfair investigation results in that investigation being quashed not have a similar counterpoint in employment law, for example that any dismissal reliant on an unjust investigation will be unfair. Similar public policy arguments would apply such that such a remedy would encourage employers to invest appropriate due diligence in misconduct investigations so as to prevent errors and also dissuade employers from pursuing arbitrary investigations for certain staff (it is a rare trade union victimisation case, for example, that will not involve an employer pursuing overblown or trumped up disciplinary accusations against them in order to rid themselves of a troublesome (aka effective) union rep).

Instead,  the employment law rather than adopting the rule of law approach seen above has required an additional requirement, as Slater itself set out in the excerpt above. Not only must there be a serious procedural breach of justice but the employment tribunal must consider whether this breach amounts or contributes to a separate breach of section 98(4)  Employment Rights Act 1996, namely that the conduct of the employer was outside the range of reasonable responses.

One obvious counter-argument is that the requirements of natural justice in an employment context are summarised in the ACAS Code of Practice on Disciplinary and Grievance Procedures  and a failure to follow these may give rise to a successful unfair dismissal claim. This is true, and many, if not most, serious procedural breaches of natural justice will be found to be unfair dismissals. This is not adequate in my view. First, unfair dismissal is only an option for a segment – and ever decreasing segment – of the UK workforce, being those who are employees and also those with two years continuous service. Second, there is no necessary correlation that breaches of natural justice will result in an unfair dismissal

The recent decision in Hargreaves v Manchester Grammar School is a case in point. A teacher was accused of misconduct, and the school investigated this and obtained numerous witness statements. Three of this gave evidence that persons present had witnessed nothing untoward but the employer did not disclose these the the teacher. The teacher was in due course dismissed.

Natural Justice would require that evidence against an alleged wrongdoer should be disclosed, but so should evidence that is potentially exculpatory. In Hargreaves the teacher understandably complained that the employer had kept evidence from him that could point his innocence from the accusation and that this was a serious breach of natural justice. However, despite the employer’s deliberate decision to exclude evidence from Mr Hargreaves, and thereby depriving him of the opportunity to make submissions to the decision maker on the basis of these statements the Employment Appeal Tribunal   affirmed the Employment Tribunal’s decision that because the decision was not outside the range of reasonable responses the employer’s investigation was fair.

And so we are left with the position that an employer has deprived an employee under suspicion of wrongdoing the opportunity to make focused submissions to the employer on how the evidence the employer had gathered pointed towards his innocence on the basis that the employer decided it would not assist the employee based on their understanding of the employee’s case. And, having done so, the employer can point to the EAT’s decision as vindication of the employer’s (mis)conduct.

It probably is true that had the employee had sight of the statements the outcome would have been the same but that is not the point. The issue is, like the decision in Alex Salmond’s case investigations should appear to be and appear to be impartial, they should not endorse an investigator’s decision to tie an accused employee’s hands and prevent the opportunity of presenting as effective a defence as possible. Unfortunately, unfair dismissal law in departing from rule of law approach does not do this and so offers inadequate incentive to employers  to be irreproachable in their conduct of investigations. If one were to ask Leslie Evans I doubt she would express the same view in respect to administrative law.

Discriminatory Dismissals and the Band of Reasonable Responses

In the 2017 case of O’Brien v Bolton St Catherine’s Academy the Court of Appeal considered the question of whether the test of whether a discriminatory dismissal under section 15 of the Equality Act 2010 was necessarily an unfair dismissal.

The key issue was whether the test as to whether a dismissal was “a proportionate means of achieving a legitimate aim” was the same as the test for unfair dismissal in section 98(4) of the Employment Rights Act 1996, what is commonly referred to as he band of reasonable responses test.

In the original Employment Tribunal hearing after having reviewed the processes that led up to dismissal of a disabled employee for reasons relating to her disability the Tribunal declared that:

Any reasonable employer would have conducted the appropriate balancing exercise required of it under s15 Equality Act before reaching the decision to dismiss, before upholding that decision on appeal. Both panels, at the Medical Incapacity Hearing and at the Appeal hearing, failed to carry out that balancing exercise. The respondent was well aware that the claimant was a disabled person within the meaning of the Act. In all the circumstances we find that dismissal fell outside the band of reasonable responses because it was a discriminatory act

The Tribunal found therefore that “because” the dismissal was discriminatory (and therefore unlawful) it was outside the band of reasonable responses and, therefore, also an unfair dismissal. The fact of the case do, to me, give me pause as to whether the dismissal really was discriminatory and this decision was reversed by the EAT.

What is of interest to me is is the determination by Underhill LJ in paragraphs 53-54:

However the basic point being made by the Tribunal was that its finding that the dismissal of the Appellant was disproportionate for the purpose of section 15 meant also that it was not reasonable for the purpose of section 98 (4) … I accept that the language in which the two tests is expressed is different and that in the public law context a “reasonableness review” may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act.

At issue is the what a Tribunal needs to decide when considering a discrimination and an unfair dismissal case. In Iceland Frozen Foods Ltd v Jones, the seminal case that codified the band of reasonable responses test, two of the five key considerations were that:

  • in applying the section an employment tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
  • in judging the reasonableness of the employer’s conduct an employment tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

The court further observed that

  • in many (though not all) cases there is a “band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

The tribunal therefore is not asked to decide ‘should the employee have been dismissed’ but rather ‘did the employer act reasonably in deciding to dismiss the employee’ and later cases have clarified that the tribunal is prohibited from adopting a substitution mindset (thinking about what decision they would have made), their task is to assess the decision maker’s decision not to make the decision again. Whilst there is an objective decision in play it is only in respect to the findings of fact as to whether the subjective decisions of the dismissal decision maker were ‘reasonable.’  By (apparent) contrast the task in a discrimination claim is to fact decide the issue and make objective decisions. But are the two regimes really different? Underhill LJ continues:

The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat – what is sometimes insufficiently appreciated – that the need to recognise that there may sometimes be circumstances where both dismissal and “non-dismissal” are reasonable responses does not reduce the task of the tribunal under section 98 (4) to one of “quasi- Wednesbury” review: see the cases referred to in para. 11 above. Thus in this context I very much doubt whether the two tests should lead to different results.

When this judgement was published I worried about the implications since, in practical terms it suggested that the threshold under which a finding of discrimination should be made is the substantially the same as when considering whether a decision was in the range of reasonable responses. The problem with this is that this test is, in my view, more onerous than a balance of probabilities one with the result that it would be harder for a worker to establish that their treatment was discriminatory, especially where there is also a claim of unfair dismissal.

Thankfully, last year in City of York Council v Grosset the Court of Appeal clarified matters somewhat. Commenting on this suggestion that the test for a discriminatory dismissal and an unfair dismissal are the same was rejected:

I think it is clear that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same.

I don’t think it was in any way clear that the comments were just related to “the particular facts of that case” but, nonetheless, the rejection of the proposition that the two tests are the same is a welcome one.

Delayed Appeal

ufHMCTS have recently published the decision of the first tier tribunal in Ward v Marks and Spencer PLC in which the claimant alleged she had been unfairly dismissed. The decision is not particularly remarkable and, based on the facts summarised, the finding that the claimant was not unfairly dismissed seems reasonable at least in so far as the decision making up to and including the dismissal itself is concerned.

There is one issue however where I am somewhat sympathetic to her complaint. The claimant was dismissed for gross misconduct and was given five days to appeal the dismissal after receiving the letter. At the disciplinary meeting the claimant signed notes of the meeting and was informed that a typed copy of these minutes would be sent to her.

Around three weeks later the claimant tried to  appeal which was comfortably outside the 5 days allowed to appeal. The employer refused to consider the appeal. At the tribunal the claimant explained that the reason for the delay was she had not been sent the minutes of the disciplinary meeting that she had been promised and was waiting for these before the appeal was made. When she did make the appeal out of time the claimant explained that the reason was that she was waiting for the minutes but despite this explanation the employer refused to even consider the appeal.

In the context of unfair dismissal complaints it is not just the actual decision to dismiss that is considered but the whole dismissal process, including appeal and the employer must act reasonably at every stage. The interesting question in this case is was the refusal to entertain the appeal reasonable?

In the judgement there is a somewhat cursory reference to the ACAS Code of Practice on Disciplinary and Grievance Procedures but it is worth revisiting what the Code says on these issues. In respect of appeal the ACAS Code provides that:

Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.

One thing that is noticeable is that there is no actual time limit for an appeal to be lodged but the judge is surely right that it is reasonable to impose some limit. However, this is not just a case of a late appeal for no reason. The (non-statutory) ACAS Guide which expands on the Code explains that a reasonable disciplinary process will provide “copies of meeting records … to the employee including copies of any formal minutes that may have been taken.” The relevance of this is that an employee’s ability to effectively challenge a dismissal or that matter even obtain advice on the viability of a challenge will be severely constrained if she is unable to see all the evidence upon which the decision maker based their decision as well as the breach providing a mechanism for the unscrupulous employer to exclude information from an employee to constrain their ability to challenge adverse decisions.

In Ward the fact that the claimant had not explained the problem to the employer was held against her; I struggle to see how that is really an effective criticism since, as the judge found as a matter of fact, the employer had promised these minutes would be provided to the claimant.  Upon rejecting to consider the appeal the employer would therefore know that they had not kept a promise to provide information to the claimant and so refusing to consider an appeal despite knowing that that promise had been breached does seem to me to be unreasonable.

The practical lesson from this case of course is that if an employee is constrained from exercising a right of appeal then the fact that the employee wishes to appeal but is constrained from doing so because of employer failures should be communicated to employers within the time limits or, alternatively seek mutual agreement for an extension of the time limit from the employer before this becomes relevant.

 

Broken Promises and (allegedly) Bullying Managers

Broken PromisesI have spent Saturday morning, as every sane person does, skim reading historic EAT judgements, and in the process stumbled upon the decision in USDAW v Burns. USDAW v Burns is a 2014 unfair dismissal case, the background to which will be familiar fare to many trade union reps, notwithstanding that the Respondent in this case was a trade union.

Mr Burns worked within recruitment for USDAW raised a concern about bullying by his manager and at the relevant time had been absent for over a year, one assumes this absence was related to the workplace situation but it is not explicitly stated. A grievance was investigated and the tribunal found that this was a reasonable conscientious investigation; at the same time Mr Burns was deemed to be fit to resume work.

However, Mr Burns refused to return to work for Mr Aylward (the manager he had accused of bullying him) but expressed a desire to return to work and remain in the employment of USDAW. Since all recruitment work was in the same division and reported to Mr Aylward there was no possibility of performing his role elsewhere. However, in a meeting with the union’s General Secretary Mr Burns was told that they would explore if there were any other vacancies he would be suited for.

At a meeting four days later the General Secretary informed Mr Burns that there were no other vacancies and he was dismissed, the reason for dismissal being some other substantial reason. However, in point of fact, the tribunal found that USDAW had not completed any skills appraisal of Mr Burns or made any enquiries before they communicated their decision to dismiss.

The employment tribunal found that this broken promise was a material factor when considering the reasonableness of the dismissal and determined that the dismissal unfair. In fact, the tribunal went further and suggested that that in all cases of dismissal for some other substantial reason an employer should “take all reasonable steps to find suitable alternative employment.” On appeal the EAT (38) squashed this wider point robustly:

We do not consider there is any such duty arising either at common law, through employment law or through a code of practice.  It is stated too absolutely.  No ground of appeal was founded upon it nor argued before us, so we do not need to consider it further.  But, because we are conscious that this judgment may see some currency elsewhere, we want to make it clear that we do not accept that approach

Nonetheless, the EAT dismissed USDAW’s appeal and found that the having made a promise to explore other opportunities a failure to do so is a key factor to be considered in determining whether a decision to dismiss an employee is reasonable (under section 98(4) of the Employment Rights Act 1996).

Whilst it is not the case that any broken promise by an employer will mean a dismissal is unfair if the takeaway (and common sense) take away point is that if an employer promises to do something that may mitigate an issue for which dismissal is contemplated and then fails to do that then that is a potentially strong ground upon which an appeal or unfair dismissal claim can be based.