Sarah King Employment Solicitor Northampton

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You are here: Home / Archives for 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

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

Too much notice?

12/06/2014 by Sarah King Leave a Comment

constructive dismissalThe recent EAT case of Cockram v Air Products Plc concerns an employee who resigned claiming constructive dismissal following a repudiatory breach of contract by his employer.  The employee gave longer notice than he was contractually required to do for financial reasons.  He was required to give three months notice but in fact gave seven months notice citing the fact that as he had no work to go to her needed to give longer notice.

The issue arose as to whether by giving this longer notice he had affirmed the contract and waived the breach upon which he relied.  The concept of constructive dismissal arises from s95(1)(c) of the Employment Rights Act where the employee terminates their employment with or without notice in circumstances where they are entitled to do so because of the employer’s conduct. This is where the employer is in fundamental breach of contract and the employee must accept that breach and resign in response to it doing so promptly to bring the contract to an end.  It is always a question of fact as to whether it is appropriate for an employee to give notice and indeed work it in such cases.  It is also open to the employee to waive the breach and treat the contract as continuing and affirm the contract.  This usually happens where the employee delays for example.

Whilst fact sensitive in this case, the EAT said that by giving much longer notice than was contractually required the employee had affirmed the contract and waived his right to claim constructive dismissal. The EAT said that it was possible for an employee to affirm the contract even after they had resigned in response to a breach.

Tag(s): constructive dismissal, employers conduct, employment advice oundle, employment advice rushden, is a resignation a dismissal, resigning with notice, resigning without notice, unfair dismissal

Appeals against dismissal

26/02/2014 by Sarah King Leave a Comment

unfair dismissal appealsA small employer dismissed an employee for gross misconduct. The employee appealed so the employer engaged an independent panel to hear the employee’s appeal. The panel overturned the employer’s decision to dismiss but the employer did not implement the panel’s decision. Where does that leave the employer in an unfair dismissal claim?

The ET found that it was a fair dismissal.  The EAT did not interfere with the Tribunal’s decision in Kisoka v Ratnpinyotip t/a Rydevale Day Nursery.  The EAT held that the tribunal was entitled to find that the decision to dismiss was fair given the ERA required tribunals to consider all the circumstances. In this case, the Tribunal found that the employer’s investigation had been reasonable and that there were no terms of engagement between the employer and the panel that stated that the employer would implement the decision of the panel or that the panel would make the final decision.

Both the Tribunal and the EAT took into account the fact that the employer was small and not required to do more or indeed to refer the appeal to an independent panel.

Tag(s): ACAS Code of practice for dismissals, appeals against unfair dismissal, employment appeals, Employment Rights Act, employment solicitor northamptonshire, independent appeals, s98 test, unfair dismissal

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