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.

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.

 

 

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.

 

Unite Union, Labour, and Zero Hour Contracts

milbandIt is certainly not a new tactic: when a politic party makes a proposal with which the other parties are not too enamored they adopt a guilt by association posture. And so it was last week, fresh from the Labour Party launching its Business manifesto cracking down on zero hour contracts, the Tory cheerleaders at the London Evening Standard targeted Unite (and by implication Miliband) on Thursday (on the eve of the leadership debates) for hypocrisy.

Unite the Union is the Labour Party’s largest financial backer which is the basis for the LES to run a story on Thursday that ‘Labour’s biggest union donor used zero hour contracts’. The background is what is assumed to be a Preliminary Hearing at the London South Tribunal for Martyn Reuby who is bringing an unfair dismissal claim against Unite the Union. Mr Reuby had delivered training for Unite at many local colleges; he contended that he was an employee of Unite, whilst Unite contended he was either self-employed or employed directly by the colleges. In order to make that claim Mr Reuby would need to establish he was an employee, hence the reason for the judgement which was not about whether he was on a zero hour contract but whether he was an employee.

In its judgement, which Unite have said it is appealing, the tribunal determined that Mr Reuby was employed on a series of short term contracts. It was Mr Reuby’s solicitor, not the tribunal, that suggested he was ‘effectively’ on a zero hour contract (the use of such an adverb usually in my experience has the same intellectual coherence as ‘I am not a racist, but …’ The Unite response to the LES’s story is pretty unambiguous: “Unite does not use zero-hours contracts and it is misleading to say so”.

On that basis the story is a pretty empty attack piece lacking in substance but of mud slinging. When the politics of employment law apocalypse fail, the next recourse is claims of hypocrisy. But here, it is not even Miliband being accused but a Labour Affiliate.

Still, while the charge of hypocrisy may be technically incorrect and represent some pretty petty political pointscoring the tribunal judgement does again bring into focus the tendency of some parts of the Union movement, when employing staff, to adopt some pretty shoddy employment practices. This is something I have picked up before. Here, even by their own admission, Unite have been procuring the services of a worker who even in the very best designation (the one Unite tried to argue) was a self employed worker who would preferred to have been an employee. In fact, however, the Tribunal’s judgement is that he was an employee in a succession of fixed term appointments – this is precisely the insecure type of employment which the union movement has criticised as being the basis of the ‘economic recovery’, workers with no security of employment. Whether or not the union succeeds in its EAT appeal the fact remains that in a duty core to the union (education) that is not going to diminish any time soon the union has chosen to deprive workers of secure employment. That is not a decision of the Labour party but a decision taken on behalf of the Unite executive.

It is right that questions about this conduct in union recruitment practices are asked. What is unfortunate however is that these question are being asked by right wing press barons (and here, unlike here, the term is appropriate) given the issues are raised by them as a matter of political opportunism and not the rank and file membership itself.

In Mr Reuby’s case Unite are defending the claim of unfair dismissal on the basis that he was not an employee. It is a defense that is certainly open to them to make legally, but the decision to pursue such a defense is morally questionable. A matter of days ago Unite published a review of Dave Smith and Phil Chamberlain’s Blacklisted (a review will follow here on Employment Writes soon).

Blacklisted tells the story of the scourge of blacklisting in the construction industry – there is a wealth of evidence that many construction companies sacked trade union representatives when they raised concerns or even when they first became known as a union activist. This affected many workers – when it became known that these companies had sacked their employees for raising concerns many of those affected, understandably, sought to lodge employment tribunal claims. One of the primary defense strategies these companies was to deny that the workers were employed but that they were ‘self employed’ or agency workers, if they are not an employee they do not have a legal remedy for unfair dismissal. It is the reason Dave Smith lost his recent Court of Appeal case of unfair dismissal. Following the outcome Dave Smith commented (and I entirely agree):

What is the point of employment law or the Human Rights Act? Even with mountains of documentary evidence and an admission from the company that they blacklisted me because I was a trade union member who had raised safety concerns, I still cannot win. This might be the law, but it is not justice.

The endemic use of agency workers, zero hours contracts, umbrella companies and bogus self-employment means that millions of workers are being treated as second class citizens.

The result of this tactic was that the overwhelming majority of those who submitted employment tribunal claims lost them because the courts found they were not employees because of their particular working arrangements. How disappointing then that Unite, who have made very positive moves in the anti-blacklisting campaigns and supported many of these claims have adopted the very same strategy and have sought to deprive workers of the right to legal remedy by contesting the fact that those who work for them on a continuous basis are in fact employees. This is especially the case since as a matter of policy (see 2014 Policy Conference motions) Unite are opposed to bogus self-employment. It may be that Mr Reuby’s claim is without merit and that Unite have not subjected him to any detriment for whistleblowing but the decision to seek to deny him a hearing is certainly questionable.

This is something members should be raising with their union executives with some earnestness with or without press coverage at election time.

Unfair Dismissal and the Myth of Red Tape

Unfair Dismissal: A Plethora of Red Tape?
Unfair Dismissal: A Plethora of Red Tape?

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 on the exact circumstances, which are not reported, it does appear that dismissal for the teacher’s conduct was not excessive.The fact that the Tribunal did not award any compensation for the unfair dismissal – a Polkey deduction – suggests the the Tribunal agreed.

Nevertheless, Moorlands School were found to have unfairly dismissed the claimant, Deanna Hall, by adopting an unfair disciplinary process. According to the report one of the main errors of the disciplinary process was the school failed to adequately disclose all the evidence upon which the employer sought to rely to the claimant before the hearing.

In responding the the judgement Jonathan Harrison, the schools headteacher, went on the offensive and claimed that the problem was really one of excessive red tape:

Judge Howard did find that Mrs Hall was unfairly dismissed due to a lack of evidence being presented to Mrs Hall during the investigatory hearing. This was due to a slight Acas infringement. As employer it is becoming impossible to fully comply with every procedural aspect of Acas.

I think the first thing to say is you do not get unfair dismissal judgements for “slight” errors, Jonathan Harrison is simply being duplicitous.

As most readers will be aware the central question before an Employment Tribunal in assessing whether a dismissal is fair is whether the decision is within the ‘band of reasonable responses’. In British Leyland UK Ltd v Swift [1981] IRLR 91 Lord Denning explained this approach.

If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have reasonably have dismissed him, then the dismissal was fair. It must be remembered that in these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.
 In short, a dismissal is not made unfair because an employer made a ‘slight mistake’, it is made unfair because it is a decision no reasonable employer could have made. Even if a Tribunal considered the decision of an employer to be wrong and in the same circumstances they would not have dismissed an employee the dismissal is still likely to be fair, like the example given by Lord Dennning above.
And the same principle applies to the disciplinary investigation. The Court of Appeal in Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 made clear that the band of reasonable responses test applies to a disciplinary investigation as well. In order to be a fair dismissal an employer must follow a fair process on the fundamental areas. One of these fundamental principles is making sure employees accused are offered the opportunity to see and respond to any evidence against them. This is a fundamental principle of natural justice that is best enunciated by the comment of Megarry J in John v Rees [1970] Ch 345 that

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”Those who take this view do not, I think, do themselves justice.

As every body who has anything with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Nor are those with any knowledge of human nature who pause to think for a moment, likely to underestimate the feelings of resentment of those who find that a decision against them has been made with their being afforded any opportunity to influence the course of events.

It is precisely this principle that Moorlands School denied Deanna Hall, it denied her the chance to offer a defense to the undisclosed evidence. That is no slight thing and it would have taken a mere matter of minutes to do.
The simple fact is that if Jonathan Harrison really thinks the relatively simple standards of procedural fairness set out in the ACAS Code of Practice are beyond him he has absolutely no business running a school – he is clearly not up to the job. If he can’t run a fair disciplinary process such as showing an accused the evidence he will rely on to allow an employee an opportunity to explain then it beggars belief how he can cope with the much  more demanding, onerous and technical duties being a headteacher requires. The more likely scenario however is that the school screwed up the disciplinary process and made significant, not slight, mistakes in how the school ran the disciplinary process for Ms Hall. And, rather than face up to those errors and the unnecessary expense that has caused for the school, Mr Harrison is trying to shift the blame to the so-called overwhelming burden of red tape. It is an old, old strategy but hopefully one the school’s staff, pupils, governors and parents will see through.

The Obligatory Top Gear Employment Law Post

Jeremy Clarkson could be waving goodbye to his BBC career this week as his disciplinary hearing is expected to deliver its verdict.
Jeremy Clarkson could be waving goodbye to his BBC career this week as his disciplinary hearing is expected to deliver its verdict.

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 it is hard to imagine that hitting a colleague, and certainly a more junior colleague is not a dismissible offense. The ACAS Code of Practice, at paragraph 24, advises that:

Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.

The allegations against Clarkson are of “physical violence” and are one of the examples of types of offense which are likely to amount to gross misconduct if proven. I can’t say I have any great sympathy for Clarkson, he has a history of making arguably bigoted and disgusting comments against others, especially minority groups and unions which should have got him the boot long before now. Still, I do not know the circumstances and so it is wrong for some, like Owen Jones, to call for his dismissal. Even if, as seems likely, he did punch a colleague I do not, for example, know whether there were any mitigating factors in play. Let’s suppose he was on medication of the type that affects behavior, or he had just received a devastating phone call telling him of the death of a loved one then that may be sufficient mitigation to justify him avoiding the sack. Similarly, it is at least equally as wrong for the Prime Minister to call on the BBC not to sack him. The fact is only those hearing the case will have the full story.

There is however reason for the BBC to be cautious about being too ready to accept mitigation as a means of avoiding the need to dismiss him. Yesterday the Mirror picked up on comments by the the law firm Irwin Mitchell:

The BBC now has to decide what to do and with so many licence payers signing a petition to have him reinstated, the corporation could be making a ‘rod for its own back’ if they put their demands first and decide not to terminate Clarkson’s employment. ‎

This would mean that it could be leaving itself open to unfair dismissal claims from other staff in the future if they are dismissed in similar circumstances or for other perceived gross misconduct offences and Clarkson is not.

Each unfair dismissal case is judged on its own facts and, truth be told, I am not completely convinced Irwin Mitchell are right. As was shown in Levenes Solicitors v Dalley [2006] UKEAT 0330_06_231, for example, even where treatment is disparate this will often not mean a dismissal is unfair.

It is however, an important issue, that is raised between how employers treat the misconduct of senior staff compared to that of more junior staff. Certainly, senior managers are dismissed but I do think there is a particular trend in some large employers for senior managers to avoid dismissal when, but for their seniority in an organisation, they would have been dismissed. This is actually the reverse of what should be expected objectively speaking: the more senior an employee the more significant the trust and confidence that that employee holds and, therefore, the more likely that such an offense destroys the employer’s trust and confidence in an employee.

I think it is clear that some in the BBC higher echelons do not have the best regard for Clarkson so the situation is, I suspect, unlikely to arise but if her were to keep his job it would still be extremely interesting to see how the BBC responds to the subsequent more ‘run of the mill’ disciplinary investigations that would invariably follow. Perhaps the first would be Clarkson’s co-presenter’s refusal to work and instigation of an unlawful strike?

Affirming Gross Misconduct

At the beginning of the mofirednth 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, Gus Poyet and a LUFC administrative worker. Not one of the recipients made a complaint about the email and the football club had no knowledge of the misconduct.

A significant time later the football club gave notice to the claimant to terminate his contract which amounted to a year’s salary. However, after agreeing the termination but before payment was made the football club became aware of the earlier misconduct and launched disciplinary proceedings which resulted in the claimant’s dismissal.

Gross Misconduct is, at root, a matter of contract; it is conduct that is capable of destroying the relationship between the employer and employee. In the Williams case even though there was a delay in the employer discovering the misconduct when it did so it was open to the employer to respond by considering the contract terminated by the employee’s actions – even though there was a significant delay between the employee’s misconduct and the employer’s knowledge of the misconduct.

But what if LUFC had known about the misconduct previously but had declined to act? In Williams Lewis J covers this state of affairs by finding that in such a case LUFC would not be able to justify dismissal (paragraph 70):

Sixthly, Mr Barnett submitted that if the Club knew that the Claimant had forwarded the e-mails to Mr Wise, Ms Lamb and Mr Poyet prior to deciding to dismiss then the letter of 23 July 2013 affirmed the existence of the contract. I accept that if those who took the decision did know those facts prior to the decision to terminate the contract, then the letter of 23 July 2013 would amount to an affirmation of the contract of employment and that the Club could not thereafter rely on those facts as justifying dismissal.

In the same way that an employee when considering resigning from their employment and claiming constructive dismissal in response to a fundamental breach of contract must act quickly to avoid being seen to have affirmed the contract so an employer must likewise act quickly.

So, to amend the narrative somewhat, suppose Mr Williams still sent the emails but the following day reflected this was a big mistake and confessed the act to the LUFC Chief Executive. The Chief Executive is not happy and admonishes Mr Williams but decides to take no further action. In such a situation it would seem even if a new CEO is appointed LUFC is aware of the misconduct and, therefore, could not go on to pursue his dismissal on gross misconduct grounds as the breach of contract has been affirmed by the employer.

In my experience, this is not in fact an uncommon state of affairs. For example, it has not been an uncommon situation for an employee to do something wrong and then promptly tell their manager of this and for the manager to take no further action.

For employees and trade union reps this is a reminder of the basic principle that an employer as well as an employee may affirm conduct that is capable of repudiating the contract between them and it is one that it would pay to be alert do. In cases where an employee subject to disciplinary investigation readily admits to me (as their rep) that they did the misconduct they are accused of I often ask if they have ever told the employer this; it is surprising how many have.

In practice (and especially where documentary evidence is available) the very fact of prior notification is sufficient to see of the allegation, meaning there is no need to revert to more legal affirmation of contract arguments.

Strangely, and in my view wrongly, the Court of Appeal have in a case arising from the tragic Baby P case (Christou & Anor v London Borough of Haringey [2013] EWCA Civ 178) suggested the opposite and that where an employee has been investigated for an offense and been given a warning the employer can go back and ‘have a second bite’ and dismiss the employee for the same offense (and here, even if there was a difference of emphasis, it is clear the employer knew of all the relevant facts later relied upon). Clearly, in that case the fact that the employer did not dismiss in the first instance can be questioned but having made that decision seems to fly in the face of any concept of fair process. Thankfully, this type of situation will be exceptional but I certainly hope, in time, this case will be overturned.