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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

Protecting disabled employee’s pay can be a reasonable adjustment

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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

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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

Withdrawal of Job Offer Proves Costly to Employer

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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

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

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

Employment Law Newsletter – December 2015

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Employment Law Newsletter - December 2015

Employment Law Newsletter – December 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

Written by Andrew Egan

December 14th, 2015 at 4:09 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.

Facts

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

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