Category Archives: Appeal

Misconduct & Punishment in Employment

Punishment at workSummary: Disagreement between employer and employee is as old as the very concept of Master and Servant itself. As a general rule, where disagreement ends with an employer forming the view that an ending of the relationship is the outcome it desires, there are some mandatory steps that will need to be addressed.

An employer seeking to dismiss an employee will generally have to consider 2 key areas of law:

  1. the first answers the question, what if anything is owed to the employee as a result of the ending of the employment? – the contractual question;
  2. the second, is the dismissal fair in all the circumstances? – the protection afforded to the employee by Parliament; the statutory question.

The first question is arguably the one to answer. Consider the case of an employer wishing to terminate the employment of an employee for misconduct who has a contract entitling them to 6 months’ notice. Except for where the misconduct is of such an extreme nature that it amounts to gross misconduct, ending the employment without payment is likely to give rise to a successful breach of contract claim.

In a recent case, the High Court decided that an employee who sent a pornographic e-mail from a work account had committed an act which entitled his employer to dismiss him without paying him the 12 months’ notice to which he was entitled. This was in spite of the fact that the sending of the e-mail was discovered some 5 years after it had been sent and only as part of a fishing exercise conducted by the employer, specifically to find a reason to dismiss.

It is extremely important that an employer intending to dismiss in these circumstances does not, after discovery of the conduct, behave in a way that would lead to a view that it had waived its right to dismiss in these circumstances.

By contrast, whether or not the dismissal was fair, in all the circumstances, would largely depend on the procedure leading up to the decision to dismiss. In short, did the employer have a reasonable belief in the guilt of the employee based on the employer having undertaken a reasonable investigation? Finally, whether the decision to dismiss in those circumstances, as opposed to applying some other sanction, was reasonable.

Tackling the risk of a successful unfair dismissal claim is a juggling act requiring an employer to engage in a fair procedure free from bias, permitting the employee an opportunity to properly understand the allegations, to address them and to be accompanied if requested.

Having managed all of that, dismissing the employee as a result of the allegations must, on an objective view, be action that a reasonable employer would take. Applying this thinking to the case mentioned above, while the age of the offence might not matter, particularly if the employer had no knowledge of it, the decision to go on a fishing expedition to find misconduct that would allow an employer to dismiss for gross misconduct and in so doing avoid the obligation to pay notice, may very well be considered unfair. This is so even if in so doing the employer would not be in breach of contract.

Other considerations:

  • Ensure that if contemplating dismissing for gross misconduct, and your policies define types of conduct that you consider fall within that category, the current offence does not fall outside it. In a recently decided case where a tribunal found the dismissal of an employee to be unfair, one of the factors that influenced the finding that the dismissal was unfair was the fact that the employer’s policy stated that the offence which the employee was facing would be dealt with by a maximum sanction of a written warning.
  • Ensure that you follow your own laid down procedures.
  • Ensure your investigation is thorough, including follow up investigations.
  • Ensure the process is well documented including witness evidence and statements.
  • Wherever possible, ensure that each level of the process is chaired by someone different.
  • Permit an appeal.

Above all, obtain proper advice and support.

Contact Details

For more details please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 8th Day of Christmas…

8th Day of ChristmasOn the 8th day of Christmas my employee said to me…. “I didn’t enjoy the Christmas party as one of my colleagues kept harassing me.”

With the ever increasing demands of work the Christmas party is a great way to say thank you to staff. Most employees, when entering into the party spirit, will remember that there is a need to convey some semblance of good behaviour; sometimes, however a small number of staff are forgetful of this and lose all sense of propriety. In most instances their behaviour will be mildly amusing or annoying but in some cases it can become offensive and distressing.

Regardless of whether the party is away from the workplace and/or not in work time, employment law will still apply. This means employees who behave inappropriately towards their colleagues can be held accountable for their behaviour. Additionally, employers can be held responsible for the conduct of an employee towards a colleague where bullying, harassment and discrimination is involved.

It is therefore important to take seriously complaints of this type and not treat them any differently because the behaviour complained of occurred at a social event. Ignoring such a complaint could lead to a costly employment tribunal claim and reputational damage. Key considerations for an employer wishing to minimise these risks include:

  • Ensuring the complaint is dealt with quickly and impartially under the grievance procedure – the procedure should include the usual stages such as an investigation, meetings and an appeal.
  • Taking disciplinary action if the complaint is upheld.

However, proactive employers can also take preventative steps to minimise the risk of complaints in the first place, such steps can include:

  • Implementing and communicating an equality and harassment policy.
  • Providing equal opportunities training.
  • Dealing with complaints fairly and effectively.

Implementation of these simple steps should enable everyone to focus on the true purpose of the event and have fun at this time of year.

Contact Details

For more details about the issues in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Immigration – what would you do if the Home Office comes knocking?

FGS - Immigration ChecklistSUMMARY: The Immigration Minister has recently announced that businesses that employ illegal workers will be hit with the “full force of government machinery”. Therefore, employers would be wise to seek protection by making use of defences which are potentially available. In this update we give 10 top tips to the employer who wants to ensure it has a defence.

Currently, an employer who is found to be illegally employing foreign nationals faces both civil and criminal penalties. The civil penalty for unknowingly employing a foreign national is up to £20,000 for each illegal worker. In the event the employer knowingly employs a migrant who does not have the right to work, that employer will be committing a criminal offence and the criminal penalty is a potential prison sentence and an unlimited fine.

Whilst there is no defence to the criminal offence, there is a possible defence to the civil offence. This defence, which is a statutory defence, relies on the employer showing that it has carried out the correct document checks – the 10 top tips relate to a statutory defence.

The 10 top tips:

1. Obtain proof of a prospective employee’s right to live and work in the UK before they commence employment.

If the checks are undertaken after the employee has commenced employment, the employer will not have the defence. All checks should be carried out consistently on all prospective employees (regardless of whether that employee is or appears to have the legal right to live and work in the UK) at the same stage, to avoid any discrimination argument.

2. Ensure that you are checking the correct documents in accordance with current Home Office guidance.

You can find an Employer’s Guide to Right to Work Checks on www.gov.uk which sets out the documents which must be checked. This guide is frequently updated (most recently, 12 May 2015) and so needs checking for updates on a regular basis.

3. Take particular care in relation to checking students’ documents.

Where a prospective employee is a student with permission to study they can only work for limited hours during term time. Make sure you obtain the appropriate evidence for this category of worker and you implement the appropriate systems to ensure they only work in accordance with their permission.

4. Check documents in the presence of the prospective employee.

This is because you are required to check that the documents:

  • are genuine;
  • are presented by and belong to the holder who is the prospective employee; and
  • show that the prospective employee has the right to do the type of work you are offering.

Whilst the prospective employee can be present by live video link, you must have the original documents in front of you – you cannot check photocopies, faxes or images via video link.

5. Obtain supporting documents if there has been a change of name.

If names differ in the documents, you must identify the reason(s) for this difference. For example, the individual may have changed their name due to marriage or divorce, in which case you would need to obtain the original marriage certificate and/or the divorce decree absolute. You may need to obtain a deed poll document.

6. Make a copy of the documents you have checked.

You should make and retain a clear copy of the documents you have checked, and make a record of the date of the check.

For passports, copy pages with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.

For all other documents, you must copy the entire document.

Copied documents must be securely retained for not less than two years after the employment has come to an end.

7. Are follow-up checks required?

If the individual has a time limited permission to be in the UK and to do the work in question, diarise follow-up checks for the appropriate time – we generally recommend carrying out a check in good time before a permission expires so that there is time for the business to contingency plan if necessary.

Be aware that there are a number of positive obligations on employers with regard to follow-up checks for certain permissions.

8. Consider if you should use the Employer Checking Service.

This service (which can be accessed at https://www.immigrationstatuscheck.service.gov.uk/employers/) should be used if an employee:

  • cannot show you their documents. This could be because they have an outstanding appeal or application with the Home Office;
  • has an Application Registration Card; or
  • has a Certificate of Application.

9. Always obtain the individual’s consent before using the Employer Checking Service.

The employee must first give their consent before you use the Employer Checking Service. It is acceptable for consent to be given either verbally or in writing, however, we advise that it is obtained in writing in case of future challenge.

10. Everything changes…

…regularly! In the past few years the Immigration Rules have changed – the changes have impacted on the documents to be checked as well as the checking process itself. It is likely that there will be further changes with this being such a politically hot topic. We therefore advise that each time you deal with an individual’s legal right to work you ensure that you are complying with the then applicable legislation requirements.

Please do be aware that these top tips are not a comprehensive guidance on the steps to be taken for those employers wishing to avail themselves of the statutory defence. We offer a full immigration service, which covers all aspects of this thorny area of the law (including sponsorship licences and visa applications) and will be happy to provide full guidance on the statutory defence as well as any other right to work/immigration queries that you have. For more information about this service, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0)808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Religious Belief v Sexual Orientation

150619 Religious belief v Sexual Orientation - Protected CharateristicsSUMMARY: When two protected characteristics clash, an employer must tread carefully. The recent case of Mbuyi v Newpark Childcare demonstrates some of the hurdles an employer must overcome before dismissing where the protected characteristics of religious belief and sexual orientation conflict.

Background

Under the Equality Act 2010, individuals are protected from detrimental treatment because of their religious belief or sexual orientation (amongst other characteristics).

Religious belief and sexual orientation are two characteristics which have the potential to conflict, as some religious groups have strong beliefs on homosexuality. An employer has the unenviable task of balancing these competing rights.

The Tribunal Decision

The tribunal held in the case of Mbuyi v Newpark Childcare that Miss Mbuyi had been discriminated against because of her religious belief.

Miss Mbuyi was dismissed for gross misconduct, being her harassment of another employee (“LP”). The dismissal letter referred to her entering into a conversation in the workplace with LP and the topic moved on to the issue of homosexuality… during that conversation Miss Mbuyi stated that homosexuality was a sin. The dismissal letter also upheld an allegation that Ms Mbuyi had, 4 months previously, made “inappropriate comments” to LP concerning her being a lesbian.

Miss Mbuyi did not have the required 2 years’ service to bring an unfair dismissal claim.

Where did the employer go wrong?

The tribunal identified a number of ways in which the employer acted, which lead to its conclusion that the employer discriminated against Miss Mbuyi. The following are key for employers to note:

  1. The employer did not conduct an investigation.

    The employer invited Miss Mbuyi straight to a disciplinary hearing without having conducted an investigation. If the employer had conducted an investigation it might, for example, have seen an email from an employee which put forward a version of events of a conversation about religion and sexual orientation. The tribunal commented that this email had not, however, found its way to a director at the disciplinary hearing by the time of the disciplinary hearing or the time of the dismissal.

    The employer could also (amongst other matters) have investigated Miss Mbuyi’s contention that the other employee had approached her, not vice versa, but it did not do so.

  2. The employer did not put all of the allegations it relied upon to dismiss Miss Mbuyi to Miss Mbuyi.

    For example, the employer asked Miss Mbuyi in the disciplinary hearing “Do you think LP is wicked?” Miss Mbuyi responded “yes we are all wicked”. The employer later linked this to homosexuality in the dismissal letter, but did not do so at the time of the disciplinary hearing. It did not appear that Miss Mbuyi was ever asked if she stated in terms that homosexuality was, in her belief, a sin.

  3. The employer did not appear to take into account the evidence that LP approached Miss Mbuyi to ask her about religion, rather than Miss Mbuyi approaching LP.  Miss Mbuyi was clear in this case that LP had:

    a. first raised Miss Mbuyi’s church;
    b. first raised her own sexuality and lifestyle;
    c. asked if she would be welcomed at church; and
    d. specifically asked what Miss Mbuyi believed God thought about her living arrangements.

  4. The employer did not take any action against LP. The tribunal commented that both could have been asked to confirm that discussing matters of religion, sex and sexuality at work was inappropriate and would not be repeated.
  5. The employer did not refer to Miss Mbuyi’s gift of another religious book to another employee, which the tribunal commented would tend to support the proposition that Miss Mbuyi would take opportunities to share her faith with anyone.
  6. The employer’s reasoning in the dismissal letter did not appear to be supported by evidence. It stated that she had specifically targeted LP because of her sexual orientation and that this constituted harassment. The tribunal commented that this was “an untenable finding on the evidence of [Miss Mbuyi], which was allegedly all the [employer] considered”. The employer should ensure that the evidence supports its conclusion.
  7. The employer did not give Miss Mbuyi a warning.
  8. The same person was heavily involved in both the dismissal and appeal.

What should an employer do?

Following this case, top tips for an employer who is considering dismissal where a protected characteristic is an issue are as follows:

  1. Carry out a reasonable investigation.
  2. Put all allegations to the employee which may be relied upon when dismissing.
  3. Do not make any stereotypical assumptions.
  4. Ensure that points in the employee’s favour, as well as those which go against the employee, are taken into account and referenced in any dismissal letter.
  5. If a response in a disciplinary hearing could be a reason for dismissing an employee, this allegation should be put to the employee before a decision to dismiss them is taken.
  6. Treat employees consistently; if two employees are involved in an inappropriate conversation, consider whether disciplinary action should be taken against both of them.
  7. Be clear about the behaviour that is expected from employees and try to seek agreement about appropriate behaviour going forwards.
  8. Consider whether a warning should be given to an employee rather than dismissing them.
  9. If dismissal is a possible outcome, ensure that the employee is aware of this before the disciplinary hearing takes place.
  10. Ensure that the reason for dismissing the employee is supported by evidence.
  11. Different people should hear the disciplinary hearing and any appeal.

Final thoughts

The reason for dismissal is absolutely key when concepts of religious belief and sexual orientation are in issue. It is interesting that the tribunal commented in this case that it may be that the employer would have been justified in dismissing for Miss Mbuyi’s refusal to actively engage in reading certain literature or otherwise promoting family units other than those formed by husband and wife. Whether this could be justified would depend on all the circumstances.

It should be noted that this case is only an employment tribunal decision and is therefore not binding. A case with similar facts could be decided in a different way.

Cases

Mbuyi v Newpark Childcare (Shepherds Bush) Ltd ET/3300656/14

Contact Details

For more details about issues of religion, belief, sexual orientation or other protected characteristics please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.