Category Archives: Dismissal

Going Up – Awards for Unfair Dismissal are set to Increase

160307 Unfair Dismissal Awards IncreaseSUMMARY: From 6 April 2016 employers will see a small increase to the limit on tribunal awards and statutory payments.

New limits have been introduced for dismissals which occur on or after 6 April 2016.  The old limits will apply to those dismissals before 6 April 2016.  The changes are summarised as follows:

Compensation Limit Current Figure From 6 April 2016 Comment
Maximum compensatory award for unfair dismissal. £78,335 £78,962 …or 52 weeks’ gross pay, if lower.
Maximum limit on a week’s pay. £475 £479 This figure is used for calculating:

  • the basic award in unfair dismissal claims; and
  • statutory redundancy payments.
Minimum basic award for certain types of unfair dismissal. £5,807 £5,853 This level of award applies to dismissals in relation to:

  • trade union membership or activities;
  • health and safety duties;
  • pension scheme trustees duties; or
  • acting as an employee or workforce representative.

Contact Details

For more details about Employment Tribunal claims and these limits 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.

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 12th Day of Christmas…

12th Day of ChristmasOn the 12th day of Christmas my employee said to me….  “One of our suppliers has given me a crate of wine as a thank you.”

The employer might say, “well lucky you, I didn’t know we had Santa on our supplier list, merry Christmas!”  Or they might say, “make sure you share it around the office”, and the employee is left attempting to divide 12 bottles of wine between 14 people.

Either way, there are some concerns which an employer should be aware of when a member of staff receives a generous gift:

  • Could this be a bribe? 

The Bribery Act 2010 creates offences both of bribing and being bribed.  Accepting a generous gift may be considered to be accepting a bribe, depending upon the purpose of the “gift”.  For example, if the supplier gave the employee the crate of wine to guarantee their son being offered a job, this could amount to a bribe.

  • What does the employer’s hospitality and gifts and/or anti-bribery policy say? 

These policies would not usually ban employees from accepting gifts.  Guidance will however be given as to what procedure the employee should follow.  For example, a monetary limit on gifts which employees can accept without notifying the employer and what to do if employees receive gifts over this amount can be explained.

Having a procedure which employees are required to follow could help to identify potential bribes.

  • What does the employer’s whistleblowing policy say? 

If an employee considers that the gift is in fact a bribe, they may raise this with the employer by following the procedure set out in a whistleblowing policy.  Any such whistleblowing complaint should be fully investigated.  If an employee does raise such a complaint, they are likely to have additional protection if they suffer a detriment in the future (for example, dismissal) as a result of their whistleblowing.  An employee does not need to have two years’ service to bring a whistleblowing claim.

To manage any potential bribery risks, an employer should ensure they have in place an anti-bribery policy, whistleblowing policy and hospitality and gifts policy and that employees are aware of these policies and how to use them.

Merry Christmas!

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.

When The Office Party Packs a Punch….

Xmas PunchSUMMARY: MBNA Limited v Jones considers the issue of consistent treatment in relation to dismissal where employees are involved in the same misconduct incident.

The office Christmas party season is looming and no doubt plans will already be underway for staff to be able to celebrate the end of the year together; the party season will also be a great opportunity to thank staff for their hard work during 2015.

Undeniably an office party can boost morale. Improved morale can be beneficial to the business but employers are more aware than ever of the potential pitfalls that can arise from their generosity. Previously well behaved employees can become uninhibited and reckless after consuming too much alcohol, forgetting that the same standards of workplace behaviour need to be adhered to at work functions or social events.

How would you deal with an employee who punches a colleague at the office social event? Dismissal will usually be reasonable for this type of behaviour, even if it occurred outside the workplace. Here’s the twist though, the victim subsequently sends threatening texts to their assailant. Would you still dismiss the assailant? Would you also dismiss the victim?

Many employers are aware of the need to treat employees consistently when it comes to dismissal. Otherwise, the dismissal could give rise to a costly unfair dismissal claim in the Employment Tribunal.

In the recent case of MBNA Limited v Jones, the Employment Appeal Tribunal had to consider the scenario described above and whether the dismissal of the assailant was unfair due to inconsistent treatment; the victim was only given a final written warning. The employer was found to have acted reasonably when deciding to dismiss the assailant as the leniency shown to the victim was irrelevant. The justification for this conclusion was that it would have been perverse to have treated a deliberate unprovoked punch as sufficiently similar to the texts subsequently sent as a response to being hit.

Recommendations for dealing fighting and violence in the workplace

When dealing with disciplinary issues and particularly those relating to fighting and violence, employers should be mindful of the following:

  • Ensure that employees know the type of behaviour which is unacceptable in the workplace; violent behaviour should be prohibited. Make it clear that conduct rules are equally applicable at work related functions and social events, even if off site.
  • Whilst it may be tempting to take short cuts where violence is involved and move straight to dismissal without further enquiry, always follow the Disciplinary Procedure. A thorough investigation is essential, particularly where a number of employees are involved in the incident.
  • If considering dismissing only some of the individuals involved, ensure that the difference in treatment can be justified. In the case described above there was a clear distinction.
  • When considering whether dismissal is an appropriate sanction, take into account long service, previous good conduct and provocation.

Case

MBNA Limited v Jones UKEAT/0120/15

Contact details

If you would like advice on any of the issues raised 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.

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.

Apprenticeships – Learn Before They Earn

Apprenticeships - Learn Before You EarnSUMMARY: The rise in the number of apprentices shows what a great asset they can be but what do you need to learn before your apprentice starts to earn?

Background

Apprenticeships are paid jobs that incorporate on-and off-the-job training leading to nationally recognised qualifications. Apprentices earn as they learn and gain practical skills in the workplace.

Since 2009/2010, the number of apprenticeships has generally been increasing and in the academic year 2013-2014 there were 440,400 apprenticeship starts.

These figures are unlikely to change as the government views apprenticeships as playing an important role in the long term development of the UK’s workforce as well as contributing to enhanced productivity.

Status

From a legal perspective apprentices are employees and as such have the same rights as any other employee.  However, in some cases additional rights and obligations may arise and it is important that organisations understand what these are.

Regulating the apprenticeship

It is essential that an appropriate written agreement is in place with an apprentice to govern the working and training arrangements.

There are two main types of agreement:

  • a modern “apprenticeship agreement”; and
  • a traditional “contract of apprentice”.

There are important differences between these types of agreement, which will also determine what rights the apprentice has, which we explain below.

Apprenticeship agreements

This is the more modern type of agreement and the one that is most often used today.

For an agreement to constitute an apprenticeship agreement, currently it must.

  • be in writing;
  • contain the basic terms of employment required to be given to employees;
  • include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework;
  • state that it is governed by the law of England and Wales;
  • state that it is entered into in connection with a qualifying apprenticeship framework,

and the apprentice must undertake to work for the employer.

Reform of apprenticeship agreements

From 26 May 2015, apprenticeship agreements will be replaced with “approved English apprenticeships” in England.

An approved English apprenticeship will take place under an “approved English apprenticeship agreement” or will be an “alternative English apprenticeship” and, in each case, must satisfy certain conditions which will be specified in regulations. It must:

1)    provide for an individual to work as an apprentice in a sector for which the Secretary of State has published an approved apprenticeship standard; and

2)    provide for the apprentice to receive training in order to assist the apprentice to achieve the approved apprenticeship standard in the work done under the agreement.

It must also satisfy any other conditions set by the Secretary of State. Without exception, all new apprenticeships must last for at least 12 months.

Advantages of apprenticeship agreements

As is currently the case with apprenticeship agreements, approved English apprenticeships will be contracts of service.  This means that:

  • apprentices under approved English apprenticeships/apprenticeship agreements can be dismissed in the same way as ordinary employees; and
  • employers can effectively performance manage under-performing apprentices under these agreements as they would any employee in the business.

However, if the relevant criteria for an approved English apprenticeship (or current apprenticeship agreement) are not met, the individual may be engaged under a common law contract of apprenticeship.  This can present an employer with a number of legal issues, which we consider below.

Contracts of apprenticeship

This is the traditional type of agreement, often called the common law contract of apprenticeship, and gives the apprentice greater rights.  A common law contract of apprenticeship is different to an apprenticeship agreement or approved English apprenticeship:

  • It does not have to be in writing.

This means that if employers do not have a written agreement with an apprentice, it is possible they have inadvertently created a common law contract of apprenticeship.

  • It is usually for a fixed term and employers have only a limited right of dismissal before the end of the term.

This means that it is more difficult to dismiss an individual engaged under a common law contract of apprenticeship than a normal employee or an apprentice engaged under an apprenticeship agreement.

If it can be avoided, it is usually advisable for employers not to engage individuals under this type of apprenticeship.

Problems with a contract of apprenticeship

Due to the nature of a contract of apprenticeship employers can often be faced with problems where for some reason they are considering dismissing the apprentice. For example:

  • Misconduct in the normal employment context will not be sufficient to justify dismissal, unless the apprentice’s actions are so extreme that the apprentice is effectively unteachable.
  • Unless there is a closure of the business or the employer’s business undergoes a fundamental change in its character an apprentice cannot be dismissed by reason of redundancy.

There can therefore be serious consequences if the contract is not lawfully terminated as the apprentice would be entitled to damages for loss of earnings and training for the remainder of the term of the apprenticeship; damages would take into account any impact on future earnings.

This means that the damages which could be claimed by an apprentice whose common law contract of apprenticeship is terminated could be significantly greater than any compensation claimed by an apprentice under an apprenticeship agreement.

What should employers do?

Before recruiting an apprentice, employers should consider whether they can provide the apprentice with work under an apprenticeship agreement or approved English apprenticeship. In advance of the individual commencing their apprenticeship, the employer should provide the relevant written agreement to the apprentice and ensure that it has been returned signed before the start date.

If employers already engage certain individuals as apprentices, they should check what type of agreement they are engaged under – we can advise employers on this in the case of uncertainty.

Contact Details

For more details about apprenticeships 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.

Employee’s Successful Victimisation Claim After Numerous Unsuccessful Discrimination Claims

Paperwork Frustration (123rf 9725484)

SUMMARY: The Employment Appeal Tribunal (EAT) has overturned an Employment Tribunal decision by holding that an employee was victimised after the employee raised numerous grievances and tribunal claims over a 5 year period.

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BNP Councillor’s dismissal violated ECHR freedom of association.

Summary: The European Court of Human Rights has criticised the failure of UK law to protect those with less than one year’s service where they are dismissed because of their membership to a political party. Continue reading

Can an Employer Have Two Bites of the Cherry in Employment Disciplinary Matters?

Summary

The dismissal of two employees connected to the Baby P case have been held to be fair despite the fact that the employees were originally given written warnings. The employees were subsequently subjected to second formal disciplinary proceedings for the same allegations and by new management, the result of which was their dismissal from the London Borough of Haringey.

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