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Expired warnings and misconduct? Be careful when dismissing!

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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

Settlement Agreements: How They Work

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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

New Employment Law Retainer Service

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Charles Lucas & Marshall is introducing a one fixed fee service for employer clients which gives legal cover on the most frequently occurring employment/HR issues.

The retainer based service gives employer/HR clients phone access to our experienced employment team during normal working hours. It includes:

One fixed fee which gives you legal cover on the most frequently occurring employment/HR issues

  • Phone access to an experienced employment solicitorduring normal working hours
  • An initial health check on key documentation such as contracts, policies and procedures, settlement agreements
  • Advice for unfair dismissal cases, redundancy, disciplinary, misconduct and grievance matters, unlawful discrimination claims, poor performance, harassment, bullying, equal pay, health and capability claims.
  • An annual one hour review to discuss future needs and service development.
  • Free access to our employment seminars and newsletters.

Read more here: http://bit.ly/28RrUsL

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

Written by Andrew Egan

June 23rd, 2016 at 8:37 pm

Employers – Do You Have An Electronics Communication Policy?

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Andrew Egan

Andrew Egan

Andrew Egan, an employment lawyer with Charles Lucas & Marshall, explains the significance of a court case which examined access to workers’ private messages sent via chat software and webmail accounts.  

Employees’ use of email and the internet – including their activities on social network sites and blogs – can lead to performance issues, damage to the employer’s reputation, loss of business and various legal liabilities.

There are a number of ways in which employers may monitor their employees’ email content and traffic, internet and telephone use in the workplace.

The importance of providing information to employees about monitoring means that employers should have an electronic communications policy. The policy should actually extend beyond monitoring, to also set standards, cross-reference other policies and address the risks arising from email use and internet access, including:

  • Constructive dismissal claims
  • Discrimination, harassment and defamation claims
  • Intellectual property issues
  • Contractual liability
  • Loss of productivity

In a recent case, an engineer, Mr Barbulescu, was utilising his business messenger account to send communications to his family and partner, including very personal content!

His employer discovered this by accident and dismissed him. After going through the Romanian Courts, he took his case to the European Court of Human Rights arguing that his right to respect of his private life and correspondence was breached by his employer monitoring his personal communications at work.

The Court did not agree, recognising the need for employers to be able to verify that employees are completing professional tasks during working hours, subject to proportionality.

The court’s ruling does not, however, give employers the right to force access to the personal social media accounts or other communication accounts of workers, particularly when used on their own devices, although, there is scope for access being monitored if during work hours and on a work device.

Most employers are to a degree flexible about employees using their computers and the internet to conduct personal tasks as long as it is in break times and is not excessive.

The judgment highlights the need and importance of ensuring that appropriate and lawful employee-monitoring policies are in place, are covered in the employee’s employment contract and that they are communicated to employees and adhered to.

Merely letting staff know that their activities are under surveillance may not be enough to provide the employee with sufficient information about the nature, scope and effect of the internet monitoring policy. A policy should identify the minimum element of an internet usage and surveillance policy, including specific misconduct being monitored.

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



Written by Andrew Egan

February 2nd, 2016 at 3:46 pm

Corporate Bodies are Protected from Discrimination

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Andrew Egan

Andrew Egan

In EAD Solicitors LLP and others v Abrams UKEAT/0054/15, the Employment Appeals Tribunal has held that a limited company which was a member of a Limited Liability Partnership could bring a claim alleging it was the victim of direct discrimination based on the age of its principal shareholder and director.


Mr Abrams was a member of EAD, a limited liability partnership (LLP). For tax reasons, as he approached retirement, he set up a limited company of which he was the sole director and principal shareholder. He withdrew from membership of the LLP and the limited company took his place. It took the profit share that Mr Abrams would have received as a member, in return for which it undertook to supply the services of an appropriate fee-earner to the LLP. Although it was expected that this would be Mr Abrams himself, there was no requirement that it should be him. He was not an employee or a worker of the company and neither did he have any contractual relationship with the LLP.

When Mr Abrams reached the age at which he would normally have retired from the LLP if he had remained a member, the LLP objected to his company remaining a member of the LLP, and to his continuing to supply his services to the LLP. Mr Abrams presented an age discrimination claim under the EqA 2010 naming himself as first claimant and the company as second claimant.

The EAT rejected the argument that only individuals are protected under the Equality Act 2010 (Equality Act 2010). The EqA 2010 prevents discrimination by a person against another person. “Person” is defined in the Interpretation Act 1978 as including a limited company unless the statute indicates a contrary intention. Case law has established that an individual may complain of discriminatory treatment based on the protected characteristic of another person, and the same logic extends to a company complaining of discriminatory treatment based on an individual’s protected characteristic.

Although this was an employment case, the decision will affect commercial and property law too, in relation to discrimination in the provision of goods, services or facilities, or the disposal of premises.

Direct discrimination occurs where, “because of a protected characteristic”, a person (A) treats another (B) less favourably than A treats or would treat others” (section 13(1), Equality Act 2010 (EqA 2010)).

An LLP (A) must not discriminate against a member (B), among other things, by expelling B or causing B any other detriment (section 45, EqA 2010). LLP members can include individuals or corporate bodies.

The EAT dismissed the appeal from the LLP and held that the claim by the company could proceed.

It held that the EqA 2010 does not protect individuals on the basis of their own protected characteristics, but identifies discrimination as treatment caused by a protected characteristic or related to it.

The EAT also referred to the Interpretation Act 1978 which states that a person includes “a body of persons corporate or unincorporate”. Therefore “person” in the EqA 2010 could include a limited company

A discriminator under the EqA 2010 must be a “person”, and it has long been recognised that the discriminator can be a corporation, so there was no reason why the “person” on the receiving end of the discrimination had to be an individual.

This is a very important development for discrimination law, not just in the field of employment, but in other fields too.

An individual who provides services through a personal service company should still be protected by the provisions on contract workers in section 41

The key impact of this case is likely to be in the commercial and property spheres, in relation to the provision of goods, services or facilities, or the disposal of premises (sections 29 and 33, EqA 2010. The case confirms that a company, LLP, charity, educational establishment, or other non-natural person may sue if it receives detrimental treatment based on the protected characteristics of individuals associated with it (whether they be its members, directors, employees, customers, pupils or otherwise).

This could include, for example, a lender’s refusal of a business loan to a limited company because of its owners’ ethnic origins, or a business’s refusal to provide goods or services to an educational establishment because its pupils are of a different ethnic origin or religion.

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

Written by Andrew Egan

October 6th, 2015 at 4:25 pm

Employee Dismissed Fairly For Derogatory Comments Against Employer On Facebook

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In British Waterways Board v Smith [2015], the Employment Appeals Tribunal (“EAT”) considered whether it was fair to dismiss an employee who had made derogatory statements about his employer on Facebook, even though the employer had been made aware of the misconduct 12 months before the dismissal.

Andrew Egan

Andrew Egan

This case shows that an employer that has failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. In this case, the misconduct predated the dismissal by two years and the employer had known about it for a considerable part of that time, yet the EAT did not criticise the employer for relying on it to dismiss the employee.

The employer in this case also deliberately searched for evidence against the employee who had raised grievances. This case confirms the decision in Williams v Leeds United Football Club [2015] where an employer ultimately avoided making a large pay-out to an employee, after the employer had found material on which it based a summary dismissal by means of a “fishing expedition” without censure from the court. In that case, the misconduct preceded the dismissal by five years, but the employer only discovered it shortly before dismissing the employee.

The case of Smith is a reminder to employers of the importance of maintaining an effective social media policy and is also a reminder to employees of the importance of exercising caution when posting online.

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

Written by Andrew Egan

August 11th, 2015 at 8:58 pm

Employment Law Newsletter – June 2015

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Employment Law Newsletter - June 2015

Employment Law Newsletter – June 2015

Written by Andrew Egan

July 7th, 2015 at 5:30 pm

Employer’s Obligations – Disability and Capability

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Andrew Egan

Andrew Egan

Andrew Egan, an employment lawyer with Charles Lucas & Marshall explains the process employers should follow if a member of staff is disabled or suffers from a long term illness which means their work is affected.

An employer has a legal duty to make reasonable adjustments for an employee where the employer knows, or could reasonably be expected to know, that the employee is disabled and is likely to be placed at a substantial disadvantage as a result of their disability.

If the employee has a clearly diagnosed condition and tells his employer about it from the outset, no question as to the employer’s knowledge will arise. If, however, the employee keeps this private, or does not have an official diagnosis or is not aware of their disability, it may be difficult for the employer to determine whether they are under a duty to make such adjustments.

Employers dealing with an employee who is or appears to be, suffering from an illness that affects their work should usually seek medical evidence at an early stage. The evidence might come from the employee’s GP or consultant, but in many cases, Occupational Health (OH) will be the best source as they are able to provide impartial advice and expertise.

OH may need access to an employee’s medical records or the employee’s medical advisers to give a definitive view. This is often the key to avoiding a successful discrimination or unfair dismissal claim.

An employer should not delegate to OH the assessment of whether an employee is disabled and whether there are reasonable adjustments to be made and just rely on the answers from OH. The employer should reach its own view on both issues. Employers should seek a focused OH report that is directed at the particular circumstances of the employee’s condition and the effects it has.

Employers should ask OH for their view on whether the employee satisfies the legal definition of disability, but also address specifically the information that would enable the employer to assess each of the elements of that definition.

Even where an employee’s condition does not appear to amount to a disability, employers may still need to make adjustments to accommodate the employee, for example, to avoid claims of unfair dismissal.

Employers always need the employees’ consent for medical information and advice to be disclosed. However, where an employee fails to provide that information, refuses to consent to the disclosure of medical reports, or delays his employer’s attempts to obtain medical evidence, Tribunals are likely to be more sympathetic to the employer and may find that the employer was not on notice of the employee’s condition. Where employees are uncooperative, employers should ensure that they explain the importance of getting the evidence, and the employee’s refusal to co-operate should be clearly documented.

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

Written by Andrew Egan

April 27th, 2015 at 3:22 pm

Should There Be Paid Bereavement Leave?

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Recent surveys have shown that one-third of employees who had suffered a bereavement in the past five years felt they had not been treated with compassion by their employer.

Andrew Egan

Andrew Egan

Employment lawyer, Andrew Egan of Newbury firm, Charles Lucas & Marshall says bereavement leave is highly subjective and tricky for employers who have no legal requirement to provide paid leave for those in mourning.

“Workers have a right to reasonable time off but for how many days and whose death qualifies for bereavement leave?” he asks.
A government website suggests that often ‘one or two days should be enough’ but the length and pay status of the time off depends on the discretion of the employer. Typically, bereavement leave may be about three to five days.

For additional time off, grieving workers would have to eat into their holiday leave or get signed off sick. The TUC says there should be a statutory minimum of paid bereavement leave, plus the opportunity to take more if necessary.

“Every individual will react differently to bereavement,” says Andrew Egan, “but a clear policy, coupled with training, will help managers and HR teams to have the skills to deal with its affect in the workplace.”

When thinking about a return to work, some employees may feel able to come back sooner, but this often depends on their relationship with the person who died and the circumstances around the death.

Employers could consider a flexible approach such as part-time hours or flexible working, particularly if the staff member must negotiate new caring responsibilities.

In September 2014, ACAS published non-binding guidance on managing the impact of bereavement in the workplace.
All employees are entitled by law to reasonable time off work to deal with an emergency such as bereavement. However, reasonableness is not defined and the law only entitles an employee to unpaid leave.

“An alternative is to make the grant of any bereavement leave purely discretionary,” says Andrew Egan. “Following discussion between the employee and management, a decision can then be taken about how much leave to offer and what proportion of that should be paid, if any.”
It is important managers seek to understand the extent to which an employee wishes for the employer to keep bereavement issues confidential from customers and colleagues. Announcements and internal communications should be handled in a sensitive manner to protect employee relations, as well as avoiding potentially breaching requirements under the Data Protection Act 1998.

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

Written by Andrew Egan

February 26th, 2015 at 8:00 am