Employment Law Blog
Employment Law Blog

Employment Law

Essential Information for Companies and Employees



Expired warnings and misconduct? Be careful when dismissing!


Andrew Egan

Andrew Egan

Andrew Egan, an employment specialist with law firm, Charles Lucas & Marshall, explains the implications of a recent tribunal decision as to whether expired warnings for employee misconduct are still relevant if the employee is eventually dismissed.

In Stratford v Auto Trail VR Ltd, Mr Stratford, who had worked for Auto Trail since 2001, was dismissed for misconduct. He had a poor disciplinary record consisting of many offences, most recently a nine month warning in December 2012 and a three month warning in January 2014.

Both warnings had expired by the time of the events which led to his dismissal. On 15 October 2014, he was disciplined for having his mobile phone in his hand on the shop floor, which was ‘strictly prohibited’ by the employer’s handbook.

As this was his 18th formal disciplinary offence, in addition to numerous informal conversations, the investigating manager felt that there was reason to believe that there would be a further conversation in future and dismissed Mr Stratford. After appealing unsuccessfully, Mr Stratford brought a claim for unfair dismissal.

The tribunal judge held that the employer had been entitled to take into account Mr Stratford’s disciplinary record and that his dismissal in the circumstances was fair.

Mr Stratford appealed to the Employment Appeals Tribunal (EAT) on the basis that the misconduct did not justify his dismissal and that it was not reasonable for his employer to rely upon expired warnings for previous misconduct as the main reason for his dismissal.

The EAT upheld the employer’s decision, saying that the obligation to act reasonably when deciding whether a particular act was sufficient to justify dismissal meant that it was open to a Tribunal to find that the dismissal was fair.

The Judge noted that the previous misconduct, the fact that a final warning had already been given although had expired by the date of the subsequent misconduct, were objective circumstances relevant to the questions of reasonableness, equity, merits and fairness.

As a general rule, an expired warning cannot be used to increase any misconduct, which would not normally lead to dismissal, into a dismissible offence. However, where the behaviour amounts to gross misconduct warranting dismissal, an employer is entitled to take into account an expired warning when determining what sanction to impose.

Every case will turn on its own facts. In this case, Mr Stratford’s disciplinary record contained many more incidents, spanning the entire period of his employment.

Employers are therefore best advised to ensure that their disciplinary policy stipulates that the duration of any warning may be extended in respect of a subsequent act of gross misconduct which is substantially the same.

Also, where examples of misconduct and gross misconduct are given, the policy should make clear these are only a guide. Employers should specifically draw their employees’ attention to the employer’s disciplinary policy.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

 

Written by Andrew Egan

January 19th, 2017 at 1:07 pm

Christmas Parties – Everything you need to know


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

December 22nd, 2016 at 5:11 pm

Winter Employment Seminar – with Andrew Egan


On Wednesday 23rd November 2016 Charles Lucas & Marshall will be hosting a Winter Employment Seminar presented by Andrew Egan.

The event will be held at Charles Lucas & Marshall’s offices in Newbury, Radnor House, 28 Bartholomew Street, Newbury, RG14 5EU.

We will start at 11:45 with Registration, followed by Talk & Questions from 12:00 – 1:00 pm and lunch 1:00 – 2:00 pm.

Winter Employment Seminar

Winter Employment Seminar

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Written by Andrew Egan

October 21st, 2016 at 7:42 am

Protecting disabled employee’s pay can be a reasonable adjustment


The Employment Appeals Tribunal (“EAT”) has held that an Employment Tribunal was entitled to find that an employer was required, as a reasonable adjustment, to continue employing a disabled employee in a more junior role involving less physical activity, preserving his existing rate of pay on an indefinite basis. Whether it was reasonable for the employer to have to take that step was a separate question, to be determined in the particular circumstances.

Protecting disabled employee’s pay

Protecting disabled employee’s pay

In the case of G4S Cash Solutions (UK) Ltd v Powell, the EAT decided that if an employer proposes an adjustment which is incompatible with the terms of the employee’s contract, the employee is entitled to decline it: the adjustment will not be effective without agreement. In this case, it was clear that there had been a variation of the contract when the employee returned from sickness absence to a changed role.

Protecting a disabled employee’s pay when they are redeployed should not be discounted. In every case, the reasonableness of potential adjustments must be assessed on a case-by-case basis, taking account of the factors set out in the EHRC Code, including the costs of making the adjustment and the financial and other resources available to the employer.

In this case, the employer had paid Mr Powell at the higher rate of pay for about a year, and had led him to believe that the arrangement would be long-term. The Tribunal concluded that the employer was a company with substantial resources for whom the additional annual cost of employing Mr Powell would have been easily affordable. The employer’s evidence was that the main reason for not continuing to pay the higher pay was the likelihood of discontent from other employees. The EAT described this as an “unattractive reason”. This is a reminder that the impact (or anticipated impact) on other employees of an adjustment is not generally a factor that should be taken into account when determining reasonableness. However, wider implications on the organisation or the workforce as a whole may be considered.

Previous cases have held that it is for the employer to explore the possibility of reasonable adjustments, not for the employee to suggest them. Although in some circumstances employers will be expected to take the initiative in making adjustments in order to discharge the duty, this case clarifies that an adjustment which also amounts to a contractual change will not be effective without securing the employee’s agreement.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

September 19th, 2016 at 1:01 pm

Dismissal of Baker for not washing hands was fair


In the case of Donovan v Greggs plc, an Employment Tribunal held that an experienced employee (a baker) should have appreciated the seriousness of breaching his employer’s hygiene rules (by not washing his hands) and it was appropriate for the employer to dismiss him.

Bake not washing hands

Bake not washing hands

The employer Greggs dismissed Mr Donovan, a bakery worker with 11 years’ service in the job, after a breach of hygiene rules.

Mr Donovan admitted not washing his hands before entering the food production area.

Greggs took the decision because of its zero-tolerance approach to breaches of its hygiene rules.

In Mr Donovan’s claim for unfair dismissal, he acknowledged that he had failed to wash his hands in breach of his employer’s policies.

However, he argued that the dismissal was outside the band of reasonable responses and was, in the circumstances, too harsh.

The Tribunal concluded that the employer’s decision to dismiss fell within the range of reasonable responses.

The Tribunal accepted that the principal reason for dismissal was that Mr Donovan could not now be trusted to follow hand-washing rules and so he posed an unacceptable risk to the health of the company’s customers and to it’s reputation.

In rejecting the unfair dismissal case, the Tribunal considered that length of service can be a mitigating factor when deciding on the appropriate sanction. However, it went on to describe Mr Donovan’s length of service, together with his experience in the food industry of over 25 years, as a “double-edged sword”. The Tribunal said that Greggs was entitled to have expected better from such an experienced worker.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

September 15th, 2016 at 5:10 pm

Do employees have a right to time off to attend Doctor or Dentist appointments?


There is no general statutory right to take time off, either paid or unpaid, to attend routine medical or dental appointments. Employees may well have a contractual right to time off in these circumstances and, depending on the terms of their employment contract, this might be either paid or unpaid and a maximum duration for each appointment might be specified. It is reasonable for an employer to request employees to make medical and dental appointments outside normal working hours insofar as this is possible, or at least to make sure that appointments are made at either the beginning or the end of the working day so as to minimise disruption to work.

Time off for medical appointments

Time off for medical appointments

Medical or dental emergencies requiring urgent, unforeseen medical or dental attention are likely to fall within sickness absence, as are cases where the employee is to be admitted to hospital as an inpatient, for example to undergo an operation. In such a situation, either statutory or contractual sick pay will be payable to the employee.

Where an employee is pregnant, she has a specific statutory right under sections 55 and 56 of the Employment Rights Act 1996 to reasonable time off work with pay to attend antenatal appointments made on the advice of a doctor, midwife or registered nurse. Antenatal care may include relaxation and parent craft classes as well as medical examinations. An employer can require the employee to produce medical confirmation of the pregnancy (a Mat B1 form) and an appointment card showing that the antenatal appointment has been made, except for the first appointment.

A prospective father or partner of a pregnant woman can take unpaid time off to attend two antenatal appointments.

An employee who is a prospective father, or the partner of a pregnant woman, can take unpaid time off to attend up to two antenatal appointments.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

September 9th, 2016 at 1:01 pm

Banter or Sexual Harassment?


I often hear employers and some employees use as a defence to a sexual harassment claim that their comments were only said in jest or only “banter”.

Banter OR Sexual Harrassment?

Banter OR Sexual Harrassment?

In the case of Driskel v Peninsula Business Services in 2000, the Employment Appeals Tribunal (“EAT”) held that in determining whether sexual banter amounts to sex discrimination, the sex of both the complainant and the alleged discriminator should be taken into account.

It did not matter that the Head of Department made similarly explicit comments to other male colleagues. 

In that case, the EAT upheld a claim by a female manager that she had been discriminated against by her head of department when she was seeking a promotion. Remarks from the head of department included that she should wear a short skirt and see-through blouse showing plenty of cleavage if she wanted to be successful during a promotion interview.

Her claim was successful despite the head of department thinking that his comments were acceptable banter.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

 

Written by Andrew Egan

September 7th, 2016 at 5:34 pm

Posted in Employment Law,News

Tagged with

Withdrawal of Job Offer Proves Costly to Employer


Andrew Egan

Andrew Egan

Andrew Egan, an employment lawyer with Charles Lucas & Marshall highlights a recent tribunal case which demonstrates verbal job offers can be legally binding.

In the recent case of McCann v Snozone Ltd, an employment tribunal awarded a claimant damages for breach of contract where he verbally accepted a job offer made by a recruitment agency acting for the employer and the employer subsequently withdrew the offer.

The employer appointed a recruitment agency to identify suitable candidates for vacancies as maintenance engineers.

After two interviews, Mr McCann had telephone conversations with the job agency. The employment tribunal accepted that Mr McCann’s version that he was offered – and accepted – a post was more believable on the facts.

It was common ground that his salary and start date had not been agreed by the parties.

The employer subsequently denied that any offer of employment had been made and Mr McCann brought a claim in the tribunal for damages for breach of contract.

The tribunal held that the employer, acting through its agency, had verbally offered a job to Mr McCann, which he accepted, and which therefore created a contract of employment. The tribunal said that legal relations had then been created which could only be terminated by giving notice.

As the employer terminated the contract without notice by withdrawing the offer of employment, Mr McCann was entitled to damages for breach of contract equal to salary in lieu of notice.

In the absence of agreed or certain contract terms, the tribunal determined that a minimum reasonable contractual notice period was one month and awarded Mr McCann damages for breach of contract amounting to one month’s salary of £2,708, as well as tribunal fees of £390.

A verbal job offer by an employer, even where the offer does not contain key employment terms such as salary, holidays, etc may form a binding contract of employment if it is accepted by a job applicant.

As offers of employment are often communicated verbally by employers, or by employment agencies acting on the employer’s  behalf, the employer should, at the time that the offer is made, state (or require the employment agency to state) that the employer will provide full details of the offer in a letter. Having this process in place will help employers avoid inadvertently making an offer before terms are agreed.

Employers can make a conditional offer of employment, so that if a condition is not satisfied, the offer can be withdrawn without breaching the contract.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

September 2nd, 2016 at 12:10 pm

Employment Newsletter August 2016


Employment Law Newsletter August 2016

Employment Law Newsletter August 2016

 

 

Written by Andrew Egan

August 4th, 2016 at 11:56 am

Posted in News,Newsletter

Tagged with

Settlement Agreements: How They Work


Andrew Egan, an employment specialist with law firm, Charles Lucas & Marshall, explains how settlement agreements work for both employers and employees.

Andrew Egan

Andrew Egan

A settlement agreement is a legally binding confidential agreement between an employer and employee.

It usually provides for the employer to make a severance payment in exchange for the employee’s agreement to waive their employment rights by not pursuing an employment tribunal or civil courts claim arising from the termination of their employment.

A settlement agreement can also protect an employer by reaffirming or including post-termination restrictions and duties of confidentiality while preventing an employee from bad-mouthing the employer.

Such agreements can be used to resolve misconduct or work performance issues but also to resolve disciplinary or grievance disputes, to cover redundancy situations or even an amicable parting of the ways.

Settlement agreements offer employers a quick and clean method of terminating someone’s employment without having to undertake a long and difficult disciplinary or redundancy process which usually involves substantial management time.

For an employee, they offer the chance to avoid an otherwise painful and stressful disciplinary, grievance or redundancy process.

In some circumstances there is substantial risk for the employer, e.g. if the employee is offered a settlement agreement without the employer having previously raised concerns about the employee’s conduct or performance.

An employer may try to claim that discussions and related documents are ‘off the record or ‘without prejudice’, but the employer is not always entitled to treat them as such. If the employee refuses, he or she may argue that the relationship of trust and confidence between the parties has broken down and use discussions and any related documents as evidence in a claim for constructive dismissal and/or possibly discrimination.

It is obviously in the employer’s interests for the employee to sign the agreement. For this reason, in most cases, the employer will contribute a sum towards the employee’s legal fees in having to seek independent advice concerning the agreement.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

July 6th, 2016 at 10:35 pm