Tagged: unfair dismissal

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Unfairness

The Employment Rights Act says that employees have the right not to be unfairly dismissed, and whether or not an employer’s decision to dismiss was unfair is to be decided by the tribunal ‘in accordance with equity and the substantial merits of the case.’

You might think that that meant an employment tribunal had to decide whether they thought your employer had acted unfairly in dismissing you. You’d be wrong: over many years, judges have decided that what Parliament was really trying to say was that where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the tribunal should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer. Any time a tribunal actually decides for itself (as the Act seems to tell it to) whether a decision was fair or unfair, it gets firmly slapped down by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of reasonable responses. This makes winning unfair dismissal cases – especially where you’ve done something wrong, but your employer has overreacted by dismissing you – pretty difficult.

Given that background, the judgment of the Court of Appeal in Robert Newbound v Thames Water Utilities provides a little bit of comfort. It doesn’t disturb the received wisdom, but it does at least emphasise that if it’s not for the ET to substitute its judgement on the merits of dismissal, it’s not, either, for the EAT to substitute its judgement for that of the ET.

Mr Newbound had (ironically) relied on his own judgement about whether it was safe to enter a sewer without breathing equipment. The employer had recently introduced new health and safety practices, under which he had signed a form indicating that he knew he was required to use breathing equipment for this particular task. He hadn’t read the form properly, of course, and didn’t realise that under the new regime he was likely to be disciplined for making his own judgement about safety. The tribunal had found his dismissal unfair. The EAT said that was ‘substituting its judgment’ for that of the employer. The Court of Appeal said there was no error of law in the ET’s approach, and restored its decision.

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Feeling sick

Disciplinary proceedings at work are stressful. If you’re facing disciplinary proceedings, it can be tempting to go to your GP and get signed off work.

Unless you really are too ill to go to work, this is a bad idea. The disciplinary proceedings themselves may or may not be well-founded, but your employer is entitled to investigate any allegations and conduct a disciplinary hearing. If unfair dismissal proceedings are on the horizon, you need to behave all through the disciplinary process in a way that will engage the tribunal’s sympathies on your side, not your employer’s. If you go and get a sick certificate at the first sign of trouble, and then refuse to have anything to do with your employer’s attempts to conduct a disciplinary process – worse still, if you refuse to cooperate with their attendance management process as well, fail to respond to messages, miss OH appointments and so on –  you’ll engage the tribunal’s sympathies on your employer’s side instead.

So it will normally be better to grit your teeth and cooperate with the disciplinary process. After all, if it’s the process itself that you’re finding stressful, why should it be less so after you’ve been off work for a few weeks months? And ultimately, if you stay off work with stress for long enough, you’ll hand your employer a cast-iron excuse to dismiss you for poor attendance instead of whatever they want to discipline you for.

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Criticising investigations

Investigations are a common battleground in unfair dismissal cases, particularly where an employee is accused of misconduct. Employers have to carry out a reasonable investigation and failure to do so may make a dismissal unfair. Often, therefore, the employee will argue that the investigation was inadequate or flawed.

The most persuasive way of making this sort of argument is to identify a specific problem with the investigation. Normally this will be something that the employer should have done, but didn’t. For example ‘they refused to interview Sam, who saw everything’ or ‘they didn’t look at the CCTV that recorded the incident’. It might also be something they did, but shouldn’t have. For example, ‘they took statements from Kevin and Mary, who were just repeating what they’d heard from Phil’.

The unpersuasive way of making this sort of argument is make general negative remarks about the investigation. For example ‘the investigation was cursory’ or ‘they didn’t really investigate properly’. This doesn’t really take you any further. ‘The investigation was unreasonable, because it was cursory’ basically means ‘the investigation was unreasonable, because it was unreasonable’. To be persuasive, you need to go on, to identify exactly where the investigation fell short. If you can’t, you probably need to think hard about whether the investigation was unreasonable.

It is sometimes a useful exercise to imagine how you would have investigated, had you been in the employer’s position. Who would you have spoken too? What evidence would you have wanted to see?

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Late claim for unfair dismissal

In RBS v Bevan, the EAT considered an appeal against an employment tribunal’s decision that it had not been reasonably practicable for the claimant to present his claim within the first 3 months from dismissal in circumstances where he did not hear of the failure of his internal appeal against dismissal until 5 hours before the expiry of the time limit.

The Employment Act 2002 (Dispute Resolution Regulations) 2004 provide an extension of time by 3 months in circumstances where at the time when the initial 3 month period expires the claimant reasonably believes that an internal appeal is still in progress. Mr Bevan did not get the extension, because by the time the initial 3 months expired he was aware that his internal appeal had failed – even though only just. The question was therefore whether it had been reasonably practicable for him to present his claim in time. It was argued that it was – because there was nothing to prevent him from presenting his claim before he knew the result of the internal appeal, although he might prefer not to.

The EAT held that the employment tribunal had been entitled to find that it was not reasonably practicable for Mr Bevan to present his claim in time. Both the employment tribunal and the EAT may have been influenced by a suspicion (which emerges quite clearly without being stated) that the employer may have deliberately timed its announcement of the outcome of the appeal for the last day of the original period in the hope that it might induce Mr Bevan to miss the deadline.

Although the outcome is clearly just, it is difficult to reconcile it with the statutory provisions: rather, it appears to be an expression of the view that it ought to be permissible to extend time for an unfair dismissal claim on the grounds that it is ‘just and equitable’ in all the circumstances to do so. This is the basis on which time can be extended for discrimination claims; it is difficult to see any good reason for the tougher requirement in unfair dismissal cases to show that it was not ‘reasonably practicable’ to present the claim in time.

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Gross misconduct

Gross misconduct is misconduct so serious that so far as the contract of employment is concerned it entitles the employer to dismiss without notice. This idea cuts both ways: if the employer is guilty of a fundamental breach of contract, the employee is entitled to walk out without notice. When the employee resigns in these circumstances it is called constructive dismissal.

That is the contractual situation. Protection from unfair dismissal means that even where gross misconduct is proved, the employer still has to consider the gravity of the offence, look at alternatives to dismissal, and give proper weight to any mitigating factors. Employers often overlook this: they have a tendency to assume that once they are satisfied that there has been gross misconduct, dismissal follows inevitably. This is a mistake, and one that claimants can exploit.

Part of the reason for the mistake is that people making harsh decisions tend to prefer to disclaim responsibility for them. It is easier to say ‘I have no alternative but to dismiss you’ than ‘Although I could have give you a formal warning, I have decided to dismiss you.’

This mistake means that there is a particular line of cross examination that often works well. It is worth considering in any case where the employer’s reason for dismissal is gross misconduct; it also provides an example of how witnesses can be invited along an easy path until they are where you want them. (See also ‘Preparing the ground.’)

Suppose the dismissal letter says something like ‘In the circumstances I have no alternative but to dismiss you.’ The cross-examination goes something like this:

Q: Please turn to page 87. This is your letter dismissing Mrs Smith. Does it explain your reasoning accurately?

A: Yes [this is obviously the ‘right’ answer – few managers will want to say that their own letter was misleading]

Q: So there was nothing that you regarded as important to your decision that you omitted to mention here?

A: No. [This seems to follow from the previous answer, and disagreeing is unattractive because it involves volunteering that there were important omissions from the letter.]

Q: And when you said ‘I had no alternative’ you meant it?

A: Yes. [Again – a question of the form ‘you meant what you said didn’t you?’ will almost always elicit the answer yes.]

Q: Once you were satisfied that Mrs Smith was guilty of gross misconduct, you really had no option but to dismiss her?

A: That’s right. [A wily personnel officer who has given evidence on many occasions may start to smell a rat – but it is surprising how many will continue to follow trustingly at this point.]

Q: So there really were no other options that you could have considered?

A: No.

Q: And the question of her previous record was not relevant?

A: No.

The last two questions are the crunch. The dismissing officer should have considered alternatives to dismissal, and mitigating factors such as the claimant’s previous record (if good), before deciding to dismiss. A failure to do so points to unfairness. This series of questions has produced some damaging admissions without ever facing the witness with an inconsistency or calling her a liar. If you have done it gently enough, she may not even realise she has given anything away.

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When a statutory procedure is not the statutory procedure

Section 98A(1) of the Employment Act 1996 means that, where one of the statutory dismissal and disciplinary procedures applies to a dismissal, and the employer fails to follow it, the dismissal will be unfair. ((Provided that the employee is eligible to claim unfair dismissal to begin with))

S98A, however, only applies to the statutory procedures laid out in the Employment Act 2002. A common confusion is to think that it applies to any statutory rule relating to a dismissal procedure. For example, the right to be accompanied to a disciplinary proceeding is a statutory right, but it is not part of the Employment Act 2002 procedure. Therefore, a breach of that right will not make a dismissal automatically unfair.

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Basic awards and redundancy payments

Where a case involves issues of unfair dismissal and redundancy payment confusion often develops around whether the claimant should be seeking a basic award or a redundancy payment. Since the awards are of equal value this is rarely a vital issue, but it is worth getting right if possible.

The following scenarios may assist, all assume that the claimant has not received any payment relating to dismissal.

  • If the client has been made redundant and accepts the redundancy was fair, he should claim a redundancy payment.
  • If the client has been dismissed, but does not accept the reason was redundancy, he should claim the basic award (but probably a redundancy payment in the alternative, in case the tribunal finds the dismissal was a fair redundancy.)
  • If the client has been made redundant, but believes the dismissal was unfair, he can claim both the redundancy payment and the basic award. However, the rule against double recovery means he will only recover the value of a single award. ((Double recovery is the rule that you can only be compensated once for the same loss, even if you are entitled to bring a claim under a number different jurisdictions.))
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Aptuit (Edinburgh) Ltd v Kennedy

In Aptuit v Kennedy the EAT has provided guidance on two important issues relating to the Statutory Dismissal and Disciplinary Procedure. Firstly, the process by which the employee must be informed of her right to appeal, and, secondly, how the uplift to the award should be calculated.

Right to appeal

The EAT concluded that there was no need for an employee to be informed of her right to appeal in writing, para. 35 & 44. A verbal statement that an appeal was available was sufficient. Further, neither a oral or written statement needed to be in any particular form. All that was necessary was that the right to appeal was communicated in some way.

Lady Justice Smith did not deal with precisely when the communication of the right to appeal must be made. It seems arguable that the requirement could be satisfied if the right to appeal is laid out in a generally available disciplinary procedure; particularly if the employee’s attention is drawn to the procedure at some stage of the process. This argument remains unresolved.

Uplift

Where the employer has failed to follow the disciplinary procedure the claimant’s award will be increased by 10%, save in exceptional circumstances. The tribunal has a discretion to increase this uplift up to 50%. There has been little guidance from the EAT as to how this is decision is to be made. Aptuit sheds some light on it, but stops well short of providing definitive guidance.

What Aptuit does make clear is that the only relevant factors when making this decision are those relating to the failure to follow the procedure, para.47. The general merits or circumstances of the case are not relevant. Claimants arguing for an uplift, therefore, should focus their submissions on the extent of the failure and the reasons for the failure (preferably showing that there was no good reason for it).

Aptuit v Kennedy