Defective Appeal

I have written before about the problem of whether one should appeal when an employee has been procedurally unfairly dismissed because of the risk of the appeal upholding the dismissal and remedying the breaches.

The problem is that sometimes an unfair dismissal is turned into a fair one thereby depriving the employee both of the possibility of remedy at an unfair dismissal hearing and  also ensuring that the employee’s dismissal is still maintained.

Last year the employment tribunal in Lawrence v NewLaw Legal Ltd demonstrated that the reverse can also apply – a fair dismissal can turn into an unfair one because of  poorly handled appeal process. In particular, the appeal manager conducted a meeting by telephone, did not ask any questions of the employee, and was over in a matter of minutes. The appeal was not, in the view of the tribunal “conducted with an open mind.”

Lawrence  is not a particularly noteworthy case but it is a helpful reminder that since employment tribunals have found that an appeal process is part of the dismissal process a faulty appeal can be grounds for an unfair dismissal claim (which, absent a further appeal cannot be remedied). As such, not only can should poor appeal process be relied upon for ACAS uplift purposes but as a ground of claim itself.


ACAS Code of Practice after Toal v GB Oils

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 1999 sets out that:

(2)Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who— (a)is chosen by the worker and is within subsection (3),

In the case an employee was called to a disciplinary meeting and requested that he be accompanied by a named representative of his trade union (Unite), who was based some distance away. The employer refused the request because it did not consider the request reasonable, but did allow the employee to be represented by another worker.

In the ACAS Code of Practice then extant the reasonableness of the request included the choice of the companion, hence if the choice of accompanying union rep was ‘unreasonable’ it could be read as being capable of refusal:

To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.

The last sentence was clearly apposite here.

However, Toal, at paragraph 20 of the judgement, found the ACAS Code to be in breach of the text of the 1999 Act: “there is, in our view, no lacuna to be filled. Section 10 of the 1999 Act works perfectly well read and understood in accordance with its straightforward language.” The result of this is that if a trade union rep meets is a properly accredited representative then an employee may request accompaniment by the representative and this must be allowed by the employer (it does not in fact matter if the employee is even a member of that trade union or whether the rep is a employee of the employer) – it is necessarily reasonable.

In the PCS context it seems likely to me that it was on the basis of Toal that PCS rep Lee Rock was able to win the reportable out of court settlement on representation rights after DWP refused permission for a PCS member to represent a PCS member.

In light of the embarrassing exposure that the ACAS Code of Practice was in fact incompatible with the legislation it was giving guidance from it has this week issued new guidance on the right to accompaniment of workers.

Brito-Babapulle, Mark II

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 to whether it was simply sufficient to identify whether the conduct taken into consideration without regard to mitigation justified dismissal and by assuming, wrongly that to label conduct gross misconduct answered that question when it did not.”

However, the appeal in Brito-bapulle was on two points. In addition to the question of mitigation, which the EAT upheld there was also an appeal on whether a finding of fraud was open to the Respondent since the investigation had only alleged dishonesty. That appeal was lost and, on that ground, the claimant appealed to the Court of Appeal and judgement was delivered last month in Brito-Babapulle v Ealing Hospitals NHS Trust [2014] EWCA Civ 1626.

The Court of Appeal accepted it “is of course an elementary rule of natural justice and disciplinary proceedings that the individual concerned must know the case she has to meet” but, worryingly, did not seem to be concerned that a subsequent change of ‘label’ affected the case. Therefore, what was an alleged act of dishonesty had morphed in the dismissal letter to an act of fraud. Although not affirming the Respondent’s conduct it found a change of label to one which an employee had not been warned was being considered did not render a dismissal unfair.

That seems to be a regrettable finding – even if the basic narrative remains the same an allegation of dishonesty is one thing but an allegation of fraud – with its attendant implications of criminal conduct – seems another altogether. LJ Bean and fellow judges unfortunately found that such ambiguous terms and plain misrepresentation in what was a serious disciplinary process is ‘fair’.