#unfairdismissal

05 08 2024

What is classed as unfair dismissal within the UK? | Consensus HR in Herts & Beds

Matthew Chilcott General @sg1businessclub, #consensus hr, #consensushr, #networkinbeds, #outsourcedHR #Stevenage #hertfordshire #bedfordshire @sg1, #unfairdismissal, Business, Business Owners, HR, HR Advice, HR Consultant, HR Consultants, HR Support, Small Business, SME, SME's

According to Consensus HR’s research, the most common Employment Tribunal award in the UK is for unfair dismissal. In the latest available data, the average award for unfair dismissal cases was £12,000 in the period of 2022/23. This award represents the compensation typically granted to employees who successfully prove that their dismissal was unfair under UK employment law.

1. Definition and Fairness:

- Unfair dismissal is a situation where an employee is terminated without a fair reason or without following a fair process. The Employment Rights Act 1996 outlines the requirements for a dismissal to be deemed fair, which include valid reasons such as misconduct, capability, redundancy, statutory illegality, or some other substantial reason (Brodies LLP) (GOV.UK).

2. Importance of Procedure:

- Employers must adhere to a fair and transparent process when dismissing an employee. This involves conducting a proper investigation, providing written notice of the issues, holding a meeting to discuss the situation, allowing the employee to respond, and giving the employee the right to appeal. Failure to follow these steps can result in a dismissal being classified as unfair, regardless of the underlying reason (Acas).

3. Reasonableness:

- Even if there is a valid reason and the procedure is followed, the decision to dismiss must be reasonable. This means that the employer’s action must fall within the range of responses that a reasonable employer might take under similar circumstances. This reasonableness test is crucial in determining the fairness of the dismissal (GOV.UK).

4. Compensation:

- The average award for unfair dismissal in the UK is around £12,000, as reported by Consensus HR. Compensation is intended to cover financial losses and may also include damages for breaches of statutory rights. High-profile cases of discrimination, such as disability discrimination, can result in significantly higher awards, reflecting the seriousness of such claims.

5. Impact on Employers:

- Employers are encouraged to ensure compliance with employment laws and to address workplace issues proactively. This includes maintaining clear and fair policies, providing training for managers on proper dismissal procedures, and seeking legal advice when necessary to mitigate the risk of unfair dismissal claims.

6. Support for Employees:

- Employees should be aware of their rights and the procedures their employers are required to follow. If they believe they have been unfairly dismissed, they can seek legal advice and consider bringing a claim to an Employment Tribunal. It is important for employees to document their experiences and gather evidence to support their case (The Law Society)

What is classed as unfair dismissal within the UK? | Consensus HR in Herts & Beds

Our HR comment:

What is classed as unfair dismissal within the UK? | Consensus HR in Herts & Beds

Matthew Chilcott, Owner of Consensus HR comments: “In conclusion, Consensus HR emphasises the importance of both procedural fairness and substantive justification in dismissal cases. Employers must carefully navigate the legal requirements to avoid costly and reputational damage from unfair dismissal claims, while employees should be informed of their rights and the recourse available to them in the event of an unfair dismissal. Employers should also remember that we work under Civil Law and the balance of probabilities and the term ‘reasonableness’ is used throughout. Did the action you take be classed as reasonable in view of the circumstances?”

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12 03 2024

Gormley v City of York Council – Unfair dismissal: Reasonable investigation | Consensus HR – Herts, Beds

Matthew Chilcott Blog, General #bedfordshirebusinesses, #consensushr, #hertfordshirebusinesses, #outsourcedemploymentlaw, #unfairdismissal, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Summary:

Investigations into alleged gross misconduct should be conducted reasonably. Reasonableness includes not accepting vague or generic allegations and questioning further to get the specifics of the situation.

Note for employers:

This case serves as a reminder for employers of the importance of a fair and thorough investigation prior to disciplinary. It is not enough simply to rely on vague evidence that lacks detail. Especially where gross misconduct is concerned, employers should investigate every angle of the case and only progress from the investigation when they have specifics as to what happened and in what context. Failing to do so, as in this case, can lead to an unreasonable decision and a loss at ET.

Law:

The law on unfair dismissal is found in section 98 Employment Rights Act 1996. Under this section, the dismissal must be for a fair reason (one of which is conduct). The dismissal must also be conducted in a reasonable manner, dependent on the size and resources of the organisation. Failure on either of those points could render the dismissal unfair.

British Home Stores Limited v Burchell [1978] set out a now well-known test to be applied when determining if the dismissal was conducted in a reasonable way. The test:

Did the respondent have a genuine belief in the misconduct of the claimant at the time of the dismissal?
Was that belief based upon reasonable grounds?
Did the dismissal follow a reasonable investigation and a reasonable procedure?

The “Burchell test” is used by ETs to come to a decision on what a hypothetical reasonable employer would conclude in the same circumstances, and therefore if the decision to dismiss was fair and reasonable under section 98 of the above act.

It is important to note however that the “Burchell test” does not impose on employers the need to conduct an investigation on a par with an investigation by the police, for example. In Ulsterbus Limited v Henderson [1989] the Northern Ireland Court of Appeal confirmed that it was not for the reasonable employer to carry out a quasi-judicial investigation into misconduct allegations, or confront and cross-examine witnesses, and that failure to do so does not always lead to an unreasonable outcome.

Employers should also consider any mitigating circumstances around the alleged misconduct. These circumstances can include the context in which the allegation happened, or the words that were said. They should also take into account the impact on the aggrieved party of the allegation, the accused employees disciplinary record and their length of service. These are relevant in determining whether the incident was an isolated event or part of a pattern of behaviour, amongst other things.

Facts:

The claimant was employed as a mental health practitioner by the respondent and was a long serving employee with a clean disciplinary record.

It was alleged by a junior colleague that the claimant had made sexual comments and “unwelcome innuendos” at work, and other comments that the colleague deemed to be “inappropriate behaviour in the workplace”. As a result, the claimant was suspended and subject to an investigation into their behaviour.

In the respondent’s report following its investigation, in which it was decided to progress to a formal disciplinary hearing, it was said that there was evidence that the claimant had engaged “in behaviour including unwanted innuendo and unwelcome jokes or comments that are sexist”.

A disciplinary hearing was held, the outcome of which was dismissal for gross misconduct. The dismissal letter said that the claimant had “engaged in behaviour including unwanted innuendo and unwelcome jokes or comments that are sexist” and noted that a colleague had described the claimant as a “misogynist”. The letter also concluded that “any reasonable person would realise” the practitioner’s behaviour was “likely to offend”.

The claimant brought claims of unfair dismissal and wrongful dismissal.

Employment Tribunal (ET):

Note that as an employment tribunal case, this is not binding authority. ET cases may be persuasive on other tribunal decisions, but unlike those courts higher in the system (EAT, CoA, Supreme Court), they do not have to be followed by other courts and therefore the outcome is only indicative of how a similar case might be treated.

The ET was critical of the respondent’s investigation, finding that the decision to dismiss on grounds of gross misconduct “was not formed on reasonable grounds after a reasonable investigation”. This was due to the respondent’s failure to ask follow-up questions. The allegations were, according to the ET, vague and “lacking specificity and largely generic” as to what innuendo, unwelcome jokes or comments had actually been made by the claimant and the circumstances in which they were made, and failing to address these in the investigation meant that it was inadequate and unreasonable and the Burchell test was not met.

Overall, the ET found that it was not reasonable to conclude that the claimant’s comments were sexual intimidation or bullying, as the evidence did not show that colleague felt vulnerable or was offended by what was said. As a result, the decision to dismiss lay outside the band of reasonable responses and the claim succeeded.

The claimant was awarded £60,700 in compensation.

Our HR Comment / Advice: Gormley v City of York Council – Unfair dismissal: Reasonable investigation | Consensus HR – Herts, Beds

Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This is an interesting case and the case law given and explains the utmost importance in ensuring an investigation is carried out correctly or could result in a £60,700 payment in compensation. It can be too easy within business to rush an investigation and especially when you are busy, but you must remember that being reasonable at all times whilst following the Acas Code of Practice are a necessity to ensure the right outcome as in this case, it was dismissal.”

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13 12 2023

Shanks v Lothian Health Board – Unfair dismissal: Reasonable dismissal – Consensus HR | Herts, Beds

Matthew Chilcott Blog, Disciplinary & Grievance, Employment Law, General, Investigations, Performance Management, Recruitment, Redundancy #bedfordshirebusinesses, #consensus hr, #consensushr, #em;l, #hertfordshirebusinesses, #outsourcedhumanresources, #reasonableness, #unfairdismissal, bedfordshire, Business, employment law, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Shanks v Lothian Health Board - Unfair dismissal: Reasonable | Consensus HR - Herts, Beds

Shanks v Lothian Health Board – Unfair dismissal: Reasonable dismissal | Consensus HR – Herts, Beds

Matthew P Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “This is a very interesting case in relation to ‘Reasonableness’ and the fact that when it comes to Law, HR is under Civil Law and the ‘balance of probabilities. Full details of the case can be read by Clicking Here but this press release by our Chartered Instituted explains clearly with a note for employers. In this case, the reasonableness of asking somebody to wear a mask was questioned by the employee who refused despite the employer asking them and all members of the team to wear one which was found to be reasonable. It subsequently resulted in the employee’s dismissal.

Note for employers.

This case is a reminder for employers about the need for reasonableness in decisions on dismissal, and the tests that will be applied to determine this. The EAT judgment made it clear that the focus when determining reasonableness should be on the requirement that the employer is imposing, and not on the employee’s particular views and beliefs on that subject. Where that requirement is to do an act which is lawful, and this is made clear to the employee along with the consequences of non-compliance, taking action up to and including dismissal for breach of that requirement is reasonable.

SUMMARY

When determining whether a requirement put in place by an employer that led to dismissal is reasonable, the tribunal must focus on the reasonableness of the requirement itself and whether the employee’s refusal to follow it was a deliberate and wilful contradiction of the terms of their employment.

LAW

The right not to be unfairly dismissed is found in section 94 of the Employment Rights Act 1996 (“ERA”). Section 98 ERA deals with the fairness of a dismissal and provides that employers must have both a fair reason, selected from a reason provided within that section (in this case, conduct) and have followed a reasonable process in dismissing the employee.

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British Home Stores Ltd v Burchell [1980]

This case dealt with what an employer needs to establish before dismissing an employee in conduct cases, and led to what is widely known as the “Burchell test”. The test to be applied is as follows:

(a) The employer formed a belief in the employee’s misconduct

(b) They had grounds for that belief based on the investigation

Iceland Frozen Foods Ltd v Jones [1983]

The EAT in this case gave us another test that should be applied, and it is known as the “range of reasonable responses” test. Under this, the tribunal must consider the reasonableness of the employer’s conduct, and not substitute that with what the members of the tribunal themselves would have decided. In many (though not all) cases there is a “band of reasonable responses” to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another. The tribunal must determine if the decision in question falls within or without that band.

Laws v London Chronicle (indicator Newspapers) Ltd [1959] tells us that for conduct to warrant a summary dismissal, it must be a deliberate and wilful contradiction of the contract terms.

FACTS

The claimant worked for the respondent as a catering assistant.

At the start of the covid pandemic, the respondent produced a risk assessment which instructed staff that where social distancing was not possible, a face mask should be worn. A meeting was later held where the catering team were informed that “masks are now part of uniform policy”. Workers were told unless they could provide an exemption letter from a doctor, they would have to wear a mask as instructed or not attend work.

This prompted the claimant to send their manager an email which included links to information regarding face masks. Within that email, the claimant stated that they believed that wearing a face mask would not stop the spread of the virus, and it would decrease their oxygen levels which could lead to hypoxia or severe hypoxia and cardiac arrest. They also claimed that requiring workers to wear a mask unless they could provide a doctor’s exemption letter was a “…massive breach of the Nolan principles, human rights, employment rights, constitutional rights and the common law”. Based on these beliefs, the claimant refused to wear their mask over both their nose and mouth as instructed and continued to attend work, despite being repeatedly told to wear the mask properly.

Eventually and after a number of months of this behaviour, the claimant was suspended from work. This, the claimant was told, was to de-escalate the situation in the kitchen (as the claimant’s colleagues regularly complained about the claimant and their failure to wear their mask properly), because the claimant posed a threat to themselves and others, and to protect the organisation from risk. The claimant was told they could return to work if they agreed to comply with the face mask rules.

An investigation took place into the claimant’s behaviour. They refused to attend any investigation meetings, and informed the respondent that until they provided supporting evidence as to the lawfulness of the mask wearing policy they would not comply. As a result, the claimant was invited to a disciplinary hearing. This found that the claimant had failed to wear a mask whilst at work as instructed and had not provided mitigation beyond not being provided with scientific evidence of the validity of mask wearing. Their refusal to wear the mask properly was deemed to be gross misconduct, and they were summarily dismissed.

The claimant appealed this dismissal. However, this did not proceed as the respondent instructed ACAS that they were not interested in further attempts to settle the dispute and the claimant deemed it no longer necessary to have the meeting as the respondent continued to fail to provide scientific evidence as to the lawfulness of its mask wearing policy.

Claims were brought for unfair dismissal and breach of contract.

EMPLOYMENT APPEAL TRIBUNAL (EAT)

The claimant argued that the requirement to wear a mask was not legitimately founded in regulations and guidance promulgated by the Scottish Government, and as a result was not a reasonable request and therefore the claimant’s conduct in refusing that request was not gross misconduct and the ET had erred in law in finding so.

The EAT did not uphold the claimant’s arguments. The ET had correctly identified that the requirement to wear a facemask was reasonable and that the claimant’s failure to follow that request was sufficient serious to warrant a summary dismissal. The ET had not erred in law and had correctly applied the relevant tests for reasonableness and unfair dismissal.

The appeal did not therefore succeed.

HR Inform – 7^th December 2023

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08 11 2023

Early years specialist awarded £800k pay-out following unfair treatment | Consensus HR | Herts, Beds

Matthew Chilcott Blog, Disciplinary & Grievance, Employment Law, General, Investigations, Recruitment, Redundancy #bedfordshirebusinesses, #equality, #equalityact2010, #hertfordshirebusinesses, #outsourcedhumanresources, #outsourcing, #unfairdismissal, bedfordshire, Business, Business Owners, employment law, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

An early year’s specialist, Mrs J Healey, has been awarded an £800,000 pay-out after being unfairly treated and dismissed by Lancashire County Council. Mrs Healey, who was diagnosed with cancer in 2014, was absent from work for long periods due to treatment. The council’s restructuring of its early years team in 2018 affected her role, leading to Mrs Healey’s belief of unfair treatment and discrimination. The employment tribunal panel ruled that Mrs Healey had been unfairly dismissed and discriminated against, as the council required her to reapply and compete for a role she had already been performing since 2012. The panel found that the interview process amounted to unfavourable treatment due to her disability. Mrs Healey was awarded compensation of £800,713.59, including loss of earnings and pension. The council has not yet commented on the ruling.

BBC News

Our HR comment: Early years specialist awarded £800k pay-out following unfair treatment | Consensus HR | Herts, Beds

Matthew P Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: – “Wow! £800,000. Award for unfavourable treatment due to a disability. This unfortunately is a prime example of when a company, a public Council in this instance does not manage sickness / absence appropriately and in view of the circumstances. At Consensus HR, we always work with our clients to ensure that in all situations, the appropriate investigations take place for all HR scenarios and to identify if there are any mitigating circumstances. This is an interesting case to read and full details can be found by clicking here and reading the outcome of the Employment Tribunal in Manchester. Employers and managers must ensure that they investigate fully in such circumstances or as in this situation and as previously discussed in numerous blogs, this was covered by the Equality Act 2010 (EqA) and unfair dismissal. Claims for discrimination under the EqA can be made from day one of employment and result in uncapped awards.”

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02 08 2023

NatWest exec sacked after cancer surgery wins pay-out. | Consensus HR – Herts, Beds

Matthew Chilcott Blog, Disciplinary & Grievance, Employment Law, General #discrimination, #equalityact2010, #equalityanddiversity, #outsourcedhumanresources, #outsourcing, #unfairdismissal, bedfordshire, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Former NatWest executive Adeline Willis has received a £90,000 pay-out after being unfairly dismissed following cancer surgery. Ms Willis sued the bank for disability discrimination and unfair dismissal, claiming she was made redundant from her £160,000-a-year role. The tribunal ruled that the decision to make Ms Willis redundant was “tainted with discrimination” and awarded her £87,700, including £35,000 for injury to feelings. Ms Willis, who was a senior risk and compliance officer, stated that she felt “humiliated” when her boss excluded her from morning meetings on her first day back at work after chemotherapy. NatWest has apologised and says steps have been taken to prevent similar incidents in the future.

The Times

Our HR Comment – NatWest exec sacked after cancer surgery wins pay-out.

Matthew P Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: “Wow! This demonstrates that even a top well-known bank can act inappropriately and unfairly. and discriminate against an employee due to their disability whilst unfairly dismissing them. Nobody goes to work to be treated unfairly or discriminated against and in this case the Equality Act 2010 would have been a key part together with the failure to follow the Acas Code of Practice and best practice. I can only imagine what this lady was going through whilst having Chemotherapy for Cancer and being excluded from meetings by her boss. What was her boss thinking?

All employees should be treated reasonably and managed accordingly where ever they work or position within the company and the appropriate, best practice and legal action taken.”

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If you are unsure on how to deal with any HR management situation, contact us now to ensure you work to best practice and the law to get the best result for the team and business. | Update from Consensus HR, outsourced HR solutions. Herts, Beds, Cambs. Give us a call now if you wish to discuss.

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NatWest exec sacked after cancer surgery wins pay-out. | Consensus HR - Herts, Beds

Therapy sessions start for long-term sick | Consensus HR – Herts

20 12 2022

Groom v Samuel Smith Old Brewery

Matthew Chilcott Blog, Disciplinary & Grievance, Employment Law, General, Investigations, Rewards & Benefits #outsourcedhumanresources, #unauthoriseddeductionofwages, #unfairdismissal, Business, Business Owners, hertfordshire, HR, HR Advice, HR Consultant, HR Consultants, HR Support, outsourcedHR, Small Business, SME, SME's, stevenage

Matthew Pinto-Chilcott, Owner of Consensus HR comments: “Groom v Samuel Smith Old Brewery . With Christmas now not far away, when I saw this recent article written by our Chartered Institute (CIPD), it seemed fit to write about it and one of the most common claims to an Employment Tribunal (ET), ‘Unauthorised deductions from wages. In this instance it involved a pub and its management team and a clause within their Contract that stated monies could be deducted from their wages for loss of stock etc. However, as with always, the word ‘Reasonable’ raises its head and is very important that all business owners and their management team when making decisions ensure they look at the facts and fully consider if it reasonable to take the action. In this case, it was found not to be reasonable, and this article explains why. HR is under Civil Law and the balance of probabilities and hence why you always need to be able to demonstrate that the action you took was reasonable.”

ARTICLE – Groom v Samuel Smith Old Brewery:

In this case the ET was called upon to consider if deductions made under a contract were lawful; and if not, in making those deductions, had the respondent acted in a manner calculated or likely to destroy the relationship of trust and confidence between employer and employee.

The facts behind the case were that a married couple took over the running of a pub from May 2019, following a period where one of them worked as relief manager in the same pub. On the day before both taking over, a stock take was undertaken by a representative of the respondent. Upon finding a deficiency in the stock, allegedly from the claimant’s time as relief manager, the claimants were forced to make up for this out of their own pocket, to a total of £480 or thereabouts. The payment of this was presented as an ultimatum; if the money were not paid over, they would not be able to take up their joint contractual position as managers.

On two further occasions deductions of £428 and £565 were made in line with this clause. These were not challenged. Finally, following another stock take the owner notified the claimants that they would deduct £4361.54 from their joint salary due to gaps in stock levels, this amounted to 12.5% of their net salary (which was only slightly above national minimum wage anyway).

The amounts calculated as deductions were based on a contractual clause and a relevant policy. These set out that the total sum owing was based on calculations as to how much surplus should have been created in an average pub in terms of beer and mixer drinks (as the head on the beer, or ice in a glass with a mixer, meant less liquid was served than sold), against the actual stock levels in the pub. If the actual stock levels were less than the 6% surplus the respondent said should be present, based on what been sold, then the clause allowed for the deficit to be taken from the salary of the claimants. This check could happen at a time arbitrarily picked for stock check. This therefore meant that any surplus previously recorded, where the pub held drinks over the calculated surplus, would not be taken into account, even if overall it meant that there was not a deficiency.

The deductions took place whilst the claimants were on annual leave, and they submitted their resignation on their return by letter, stating that this amounted to constructive dismissal because of a fundamental breach of contract. Specifically, that is the breach of trust and confidence. At that point they gave their contractual two weeks’ notice, but following further communication from the respondent’s representative, they withdrew that notice and resigned with immediate effect.

Claims were then made for constructive unfair dismissal and unlawful deduction of wages.

Notes for employers:

Whilst only ET, and therefore not binding precedent, this case is an important reminder for employers to take care when drafting deductions clauses. The clauses relied on in this case were not sufficient so as to result in a reasonable calculation of the employer’s loss, and therefore were not reasonable to enforce. Employers should instead be explicitly clear what is meant by a deficit and set out the means of calculating this.

A further note is that even where a valid deduction clause is in place, employers must have in mind the impact of the deduction on the individual, especially if the employee is a low earner and the amount is significant. At 12.5% of their wages, the amount deducted by the respondent represented a significant portion of their joint income, which could have had serious consequences for the claimants. This drew criticism from the ET and led them to question the validity of such a deduction. Ultimately it contributed to the successful constructive dismissal claim and is a reminder of the need to be reasonable when exercising contractual clauses.

What is the law in relation to this?

13(1A) of the Employment Rights Act 1996 – Right not to suffer unauthorised deductions.

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b)the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion

HRDirector

CIPD

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