We are back after a short summer break. With memories of sun loungers, ice cream and World Cup failure already fading, what better away to welcome autumn than with a fresh batch of employment law news?
As ever, there is a rich selection of cases to peruse…
Sweeney (deceased) v Strathclyde Fire Board
Employers are often uncertain about what they can (and cannot) take into account during the disciplinary process. Here, the Employment Appeal Tribunal (EAT) looked at a situation in which an employer had factored into its dismissal decision a warning the employee had received after the misconduct that he was dismissed for had taken place.
Mr Sweeney was a fireman. In July 2010 he was charged with assaulting his wife. One month later he was given a final written warning for unauthorised absence from work. In March 2011 he was sentenced to community service for the assault.
The fire service investigated the conduct (the assault) that had led to the criminal sentence. Rather than give Mr Sweeney a final written warning for that, his employer dismissed him – it took into account the final written warning for unauthorised absence, even though it post-dated the assault.
The EAT held that the employer was entitled to look at Mr Sweeney’s entire employment record when considering dismissal. It did not matter that the written warning was for later misconduct; the fact that it had been issued was something that it was open for a reasonable employer to take into account in the disciplinary process. This is an encouraging result for employers with the EAT taking a common sense rather than an overly formulaic approach to procedural fairness.
McMillan v Airedale NHS Foundation Trust
Disciplinary appeals exist for the employee’s benefit. So it would seem odd if a sanction which has been imposed could be increased by the employer at the appeal stage. Might employees who choose to appeal be shooting themselves in the foot?
Ms McMillan was a consultant employed by the NHS. She appealed, unsuccessfully, against her final written warning for misconduct. Ms McMillan became worried that her warning would nevertheless become dismissal. So before the appeal panel had decided the outcome, she obtained a High Court injunction stopping the Trust reconvening the hearing.
The Court of Appeal upheld the High Court’s decision to grant the injunction, saying that if employers want the power to increase sanctions on appeal then this must be clearly set out in their disciplinary procedure (and it was not in the disciplinary procedure in this case).
The Trust was not entitled to increase the sanction, the Court said, because the right to appeal is for the employee’s benefit or protection; employees would otherwise be deterred from appealing at all. Furthermore, if a warning were increased to dismissal then the employee would have no right to appeal against that dismissal because the end of the internal process road had been reached.
As so often the circumstances of this case are unusual to say the least – it is not every day that employees have the will or financial backing to pursue an injunction against their employer, particularly through to the Court of Appeal – and you may feel that this is unlikely to affect your business. You may well be right on that, but if it is ever possible that your business may wish to increase a disciplinary sanction on appeal, it is important that your disciplinary policy expressly allows for it. If it doesn’t, it may be time to review your policies.
Dominique v Toll Global Forwarding Ltd
Mr Dominique suffered a stroke. It resulted in him making mistakes at work and having difficulty with using computers.
A redundancy process ensued and Mr Dominique was selected based on productivity and accuracy criteria. Should his scores have been adjusted to take into account his disability? And did the employer fail in its duty to make reasonable adjustments even though making those adjustments would have made no difference to the outcome?
Yes and yes, said the Employment Appeal Tribunal. Mr Dominique was put at a substantial disadvantage by his employer’s selection criteria, and a reasonable adjustment would have been to adjust the scores (but not necessarily to score Mr Dominique highest in his pool). Because it had not done this, the employer was liable for disability discrimination, attracting an injury to feelings award, although it was likely that this would be at a low level.
The lesson to take from this case is that in a redundancy process it is important to make reasonable adjustments even where making them will still result in dismissal, since dismissal is not the only detriment an employee can suffer and be compensated for – injury to feelings attracts its own award.
Hershaw v Sheffield City Council
Every employer knows the importance of clear communication, especially during the disciplinary and grievance process. Ambiguity and misinformation have a habit of returning to bite. And that is what happened to Sheffield City Council when an external HR Consultant got things wrong.
Twelve council staff members had taken issue with their pay grade and level of pay. They raised a grievance about their employer’s inaction during the process. The Council engaged an external HR consultant to investigate the grievance.
The consultant was authorised to write to the employees with the outcome of their grievance, but not to determine their pay. However, in her letter she mistakenly told them that they had been placed on a higher grade salary.
The Employment Appeal Tribunal held that although the consultant did not have actual authority to increase the grade, her letter had contractual effect – it bound the council to pay the higher salaries. The employer had authorised the consultant to answer the employees’ grievance and so the effect of her letter was as if the employer had written directly to the employees.
Note, however, that it would have been a different story if the employees had recognised (or ought to have recognised) that the letter was a mistake. In those circumstances it would probably not have had contractual effect.
Nonetheless, there is a lesson here about setting boundaries and keeping an eye on what is being done on your behalf by external contractors. Be clear about what a third party is and is not authorised to do in this sort of situation. A good way of looking at this is through the eyes of an employee; if they were to receive a letter on company paper, for example, then it would reasonable for them to assume that it was official and binding.
Melik Camurat v Thurrock Borough Council
Mr Camurat worked in a college and had faced a series of allegations relating to the inappropriate use of force in his dealings with pupils. Following negotiations, a settlement agreement was entered into which contained an agreed reference. The reference was mostly positive, except for a mention of his final written warning for an incident involving the confiscation of a pupil’s mobile phone.
It is usually the case that a reference is enough to inform future employers about past performance – and former employers must tread very carefully in departing from the terms of an agreed reference. But in Mr Camurat’s case, the issue concerned a safeguarding disclosure that his former employer was required to make to the authorities.
The information Thurrock gave to the police included details of allegations that Mr Camurat had used inappropriate force in the classroom. Those details became part of an Enhanced Criminal Record Check (ECRC) which led to Mr Camurat losing his new job and being unable to get another. He fought for five years to get the ECRC cleared, which it eventually was.
Mr Camurat claimed that Thurrock owed him a duty of care when making this safeguarding disclosure. He lost his case. The Court held that if there were a duty of care then that would discourage people from providing safeguarding information in good faith to the police. Also, there was nothing to say (or be implied) that safeguarding disclosures would be in the spirit of the agreed reference.
Mr Camurat has been given permission to appeal the decision and so this might not be the last word.
Hounga v Allen
The law takes illegal contracts seriously. Those who try to enforce their terms usually hit a brick wall. But that is not necessarily so where discrimination is concerned, as the courts have just re-stated in Hounga v Allen.
Ms Hounga was born in Nigeria. She came to the UK in 2007 under a falsely obtained visitors’ visa. Despite having no right to work in the UK (or, after 2007 any right to remain here) she became employed by the Allen family as a nanny. Things did not go well – Ms Hounga says she was mistreated – and the arrangement came to an end with Ms Hounga’s eviction from the house, and the loss of her job.
She claimed discrimination. This launched a sequence of disagreements between the courts about whether, in light of the illegal contract, the right to bring a discrimination claim existed.
It went all the way to the Supreme Court, where Ms Hounga won. The Court held that there was an insufficiently close connection between the illegality and the discrimination claim. The illegal aspect merely provided the setting for the discrimination to happen.
Now that the discrimination claim can proceed, a tribunal will decide the outcome.
The boundaries of discrimination law are being tested all the time. As more classes of people gain protection, others naturally seek it out.
Stories like those of Jo Perkins hit the headlines every now and again. Her contract was terminated because she had not covered up a four-inch butterfly tattoo on her foot. This contravened the “no visible inking” policy which many employers have in place.
This can be a controversial area for employers. Businesses are understandably keen to protect their brand image and there is a risk of appearing to be out of touch, or stifling individuals’ freedom of expression (whether this is something that an employer need be concerned about is best left for another day). The reality is that tattoos are not always well received, particularly when it comes to certain types of customer-facing jobs.
The good news for those of you who are “uninked” and despair at the march of employment legislation is that here is no specific legal protection from being dismissed (or suffering another detriment) simply for having a tattoo. It is prudent (where this might be an issue) to introduce sensible policies in the right way and to follow the correct disciplinary procedures as and when a tattoo becomes an issue.
A final word of caution: remember that while many tattoos are fashion statements, others can be deeply symbolic, religious requirements or cultural norms. We have yet to see a reported case where an employee claims protection from detriment related to a tattoo which they say reflects their religion or belief, but given the apparent explosion in popularity in tattoos (or maybe that is just a reflection of the places where we go on holiday) it is surely only a matter of time before an ingenious discrimination claim is run…
Tats (ahem) all for this month. As ever, let us know if you have any queries.