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You are here: Home / Archives for News / News - Unfair dismissal

Gross Misconduct dismissals

18/07/2018 by Sarah King Leave a Comment

gross misconduct dismissalEmployees get their full employment law rights after two years in employment (with some exceptions to the rule).  Often an employer is mindful of this fact and will look to exit an employee who is not performing at the optimum level or for other reasons.  The advice has always been not to take this course of action too close to the two year’s service as it is well established that the effective date of termination (EDT) is extended by the statutory minimum period of notice even if you make a payment in lieu.  This can mean that an employer leaving it to the wire can get caught out.

The advice must always be of course to take action well before the two year period has expired.  Often if an employee if not performing early in the relationship is unlikely to improve unless it is a training issue.  This remains sound advice but a recent EAT decision has clarified where the employer dismisses for gross misconduct and is entitled to do so then the statutory notice period is not added onto the termination date to acquire two years service.  Of course unless the conduct complained of is so clear this does still cause a grey area but gives an employer another point to argue if the employee does not have sufficient service to bring an unfair dismissal claim as the matter will have to be dealt with as a preliminary issue.

The facts of Lancaster and Duke Ltd v Wileman are that W started her employment with LD Ltd on 22 September 2014. Although she was a competent worker, colleagues found her occasionally rude and aggressive and she had a difficult relationship with one director in particular. On 20 September 2016, LD Ltd dismissed W summarily for gross misconduct (just days before she acquired service). The employer did not follow any process or give the right of appeal as is often the case with dismissals under two years service. A preliminary point had to be decided as to whether the tribunal has jurisdiction to hear her unfair dismissal claim as her EDT was extended by the statutory notice period or not.  .

The tribunal decided that the EDT was 27th September (20th September 2016 plus one weeks statutory notice) by virtue of S.97(2) of the Employment Rights Act 1996 which states that where an employer dismisses an employee with less than the statutory minimum period of notice required by S.86 ERA, the EDT is deemed to be the date on which the statutory notice would have expired. LD Ltd appealed and the EAT allowed the appeal.

The EAT found that S.97(2) extends the EDT by ‘the notice required by S.86’. In its view, this brings the entirety of S.86 into play, including S.86(6) as much as S.86(1). S86 states that the right to statutory minimum notice ‘does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party’.  As such the EAT found that if W was guilty of gross misconduct there could be no extension of the EDT and as the tribunal had not made a finding on this issue, the case was remitted for the tribunal to decide whether or not W was guilty of gross misconduct as a preliminary point.

The EAT noted that this interpretation has been assumed in other cases and in leading employment law commentary texts but had not been expressly determined before. 

Tag(s): can I bring a claim for unfair dismissal, determing the EDT, do I have two years service, gross misconduct dismsisals, unfair dismissal

Reinstatement orders

26/09/2016 by Sarah King Leave a Comment

back to workThe Supreme Court has held that an employment tribunal did not fall into an error of law by ordering reinstatement but with the same restriction of duties that applied prior to the Claimant’s dismissal.

In McBride v Scottish Police Authority, the Claimant was employed as a fingerprints officer since 1984. In 2000 a group of employees were suspended due to an investigation into an irregularity of a finger print found at a crime scene.  The investigation found that there had been no misconduct and the Claimant returned to work on restricted duties sometime later.  She was excluded from signing joint reports or giving evidence in court and the restrictions remained in place for the remainder of her employment.

Five years later, there was a structural reorganisation and her employment transferred.  The chief executive made it clear that he did not want her to transfer.  She was invited to discuss redeployment but asked that the restrictions be lifted.  She was then dismissed because of her inability to carry out the full range of her duties and the failure to identify suitable redeployment options. The tribunal found she had been unfairly dismissed and ordered reinstatement to her role and that she should be treated “in all respects as if she had not been dismissed”. The matter eventually made it to the Supreme Court following a series of appeals.

The Supreme Court held that a tribunal has no power to order reinstatement in terms which alter the contractual terms of employment.  It was however satisfied in this case that the tribunal was merely maintaining the status quo as she had previously been actively employed with those restrictions on her duties. Whilst the tribunal was aware that this was not what the Claimant had wanted before her dismissal, it does not have to be satisfied that the reinstatement order would be acceptable to both parties. The matter was however remitted back to tribunal for considering a variation of its order given the passage of time since it was made (some years later due to all the appeals).

Tag(s): can reinstatement be conditional, employment solicitor kettering, employment solicitor northamptonshire, Employment tribunal claims, employment tribunal remedies, reinstatement orders, unfair dismissal claims

When does the ACAS Code apply?

22/09/2016 by Sarah King Leave a Comment

ACAS Code of practiceThe ACAS Code of Practice (COP1) is said to explicitly not apply to redundancy dismissals.  Two recent cases have extended the circumstances in which the Code does not apply to include ill-health and some other substantial reason dismissals.

The case of Holmes v QinetiQ Ltd [2015] found that the Code does not apply in ill-health dismissals.  The EAT confirmed that the Code only applies to dismissals where there is “culpable conduct” whether in the form of misconduct or poor performance, which requires either correction or punishment. In this case, Mr Holmes worked as a security guard and had a number of absences for health reasons which ultimately led him to be dismissed on ill-health grounds on the basis he was no longer capable of performing his role.

The EAT said that it was clear the Code was only intended to apply in cases where an employee faces a complaint or allegation that may lead to disciplinary action.  Misconduct was clearly culpable conduct but poor performance could be both culpable and non-culpable. Where poor performance is a consequence of genuine ill-health or injury this would not be a disciplinary situation.  Where on the other hand there is ill-health and something like a failure to comply with the sickness absence policy or an issue over the genuineness of the sickness absence, the disciplinary process maybe invoked to deal with the alleged culpable conduct.  Therefore the employee whilst he had been unfairly dismissed could not obtain any uplift as a remedy for failure to follow the Code.

The case was shortly followed by the case of Phoenix House Ltd v Stockman again before the EAT which held that the Code (and thus any uplift for failure to follow it) did not apply to some other substantial reason dismissals.  In this case it was a dismissal for a breakdown in the working relationship.  Mrs Stockman brought an unsuccessful grievance against a fellow employee and was issued a written warning for misconduct. The employer dismissed her as it took the view that the employment relationship had broken down and was irretrievable.  She was found to have been unfairly dismissed and was awarded an uplift for failing to comply with the ACAS Code of Practice.

The employer appealed and the EAT upheld the claims for unfair dismissal but rejected the Tribunal’s conclusions as to the ACAS Code and thus the uplift.  The EAT found that clearly elements of the Code were elements of general fairness which should form part of the process in any event but to go beyond that and impose a sanction for failure to comply with the Code went further than Parliament intended.

Tag(s): ACAS Code, ACAS COP1, capability issues at work, does the ACAS code apply for ill-health dismissals, does the ACAS code apply for sosr dismissals, employment solicitor thrapston, employment solicitor wellingborough, some other substantial reason dismissal, unfair dismissal

Zero hours dismissals

20/01/2016 by Sarah King Leave a Comment

zero hours contractThe much talked about and long awaited protection against zero hours dismissals for workers is now in place.  This is where employees are dismissed for not being exclusive to one contract.

It is now unlawful to dismiss an employee on a zero hours contract if the principal reason is that he breached a contractual clause prohibiting him from working for another employer since such clauses are banned.  There is no length of service requirement for employees to bring a claim for automatic unfair dismissal under this heading.

It is also unlawful to submit a zero hours worker to a detriment for working for another employer in breach of a clause preventing them from doing so.  Again such clauses are now banned so workers (wider than employees) who suffer a detriment for breaching the clause are now also given protection.  Only time will tell if cases are brought under either heading.

Tag(s): employment solicitor Raunds, employment solicitor Rushden, employment solicitor thrapston, exclusivity under zero hours contracts, zero hours contracts, zero hours dismissal

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