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by February 15, 2016Published on
The code states that:
· Employers should carry out an investigation as soon as possible to establish the facts. Ideally different people should undertake the investigation and the disciplinary hearing (if possible).
· There is no statutory right for an employee to be accompanied at a formal investigatory meeting, but it is good practice to allow someone to come with them.
· After the investigatory hearing, employers should inform the employee in writing if there is a disciplinary case to answer, giving them enough information to allow them to answer the case at a hearing.
· If an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer can make a decision in their absence, on the evidence available to them.
· When giving written notification of the time and venue of the hearing, employers should include copies of any written evidence and inform the employee of their right to be accompanied at the hearing.
· At the meeting the employer should explain the complaint and go through the evidence. The employee should be allowed to set out their case, answer any allegations that have been made and have a reasonable opportunity to ask questions, present evidence and call relevant witnesses.
· After the meeting the employer must decide whether disciplinary action is appropriate and inform the employee accordingly in writing. They should then allow employees to appeal the decision.
· Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.
· If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning.
Unfair dismissal claims are regularly heard in both tribunals and Employment Appeal Tribunals (EAT). Below are a number of EAT decisions decided over the last few years.
In Toal and Hughes v GB Oils Ltd, the EAT held that workers have the right to be accompanied at a disciplinary hearing by any companion as long as they are from one of the categories listed in section 10 of the Employment Relations Act. These include trade unions officials, certified union representatives or fellow workers.
Although the code states that an appeal should not result in an increased penalty, the Court of Appeal was more explicit in McMillan v Airedale NHS Foundation Trust, holding that as the right of appeal exists for the benefit of employees, it would undermine the whole purpose if employers could elevate a warning to dismissal on appeal.
Before deciding whether to start disciplinary proceedings, employers have to carry out a reasonable investigation within the band of reasonable decisions open to them and which is reasonable in all the circumstances.
In Coventry University v Mian, the Court of Appeal held that the trial judge had failed to apply the correct test which was to consider whether the university’s decision to instigate disciplinary proceedings was unreasonable.
The law states that employers have to have a fair reason for dismissal and must act reasonably in treating that as a sufficient reason to dismiss their employee.
In Jinadu v Docklands Buses, the EAT held that employers do not have to put a disciplinary investigation on hold until they deal with an employee’s grievances even if the individual is at risk of dismissal.
The law says that employers only have to apply the same sanctions when disciplining an employee if the circumstances are “truly parallel”. In MBNA Ltd v Jones, the Employment Appeal Tribunal (EAT) confirmed that there are very few cases in which the circumstances will be sufficiently similar to require employers to administer the same sanctions.
Prior to an event to celebrate its 20th anniversary, MBNA told staff that normal standards of behaviour would apply. At the event, following some alleged “banter” Mr Battersby kneed Mr Jones in the back of his leg. He then licked Mr Battersby’s face. Later, Mr Battersby kneed Mr Jones again. This time, Mr Jones responded by punching Mr Battersby in the face. After Mr Jones went onto a club, Mr Battersby waited outside and texted him seven times threatening to follow him back to where he was staying and do some unpleasant things to him. He did not carry out the threats and Mr Jones did not receive the texts until the following day.
After bringing disciplinary charges against both men, MBNA dismissed Mr Jones for gross misconduct but only issued Mr Battersby with a final written warning on the basis that he had been provoked and did not intend to carry out his threats. Mr Jones claimed unfair dismissal.
The tribunal found that the manager who had conducted the two investigations had made an unreasonable assessment about Mr Battersby’s intentions and had also applied the defence of provocation differently in relation to the two men. Although he decided that Mr Battersby’s behaviour towards Mr Jones was not provocative “beyond reasonable measure”, he found that Mr Jones’ behaviour had provoked Mr Battersby to send text messages several hours later. The two men had therefore been treated differently and the dismissal was unfair.
The EAT disagreed. It held if the judge had expressly addressed the question of whether the circumstances were similar enough, he would have been bound to conclude they were not. Mr Jones punched Mr Battersby in the face during a work event although he had been told that the company would apply its normal disciplinary rules.
Although Mr Battersby’s conduct later that evening was plainly reprehensible, he did not in fact carry out his threat in the workplace or anywhere else for that matter. Instead of asking whether the company had reached reasonable conclusions and applied a reasonable sanction with regard to Mr Jones, the tribunal had considered whether the manager had reached “unreasonable conclusions” with regard to Mr Battersby. It had also relied on a “defence of provocation”, despite the fact that the company was not required to apply.
European law makes clear that, unless there are exceptional circumstances, it cannot be applied retrospectively. In O’Brien v Ministry of Justice; Walker v Innospec and ors, the Court of Appeal confirmed that if employees are treated in a way that was lawful at the time, the treatment cannot become unlawful retrospectively.
The first of two conjoined cases concerned Mr O’Brien, a part time judge who held office from 1978 to 2005. He became entitled to a pension with the introduction of the Part Time Workers Directive which was transposed into domestic law in April 2000. Mr O’Brien argued that his pension should be backdated to take account of all his sitting days from 1978 onwards.
Mr Walker, who had worked for Innospec Ltd from 1980 until his retirement in 2003, entered into a civil partnership with his long term partner in January 2006 under the Civil Partnership Act 2004 which came into effect in December 2005. The two men subsequently married. Under rule 8.1 of Innospec’s pension scheme, a member’s surviving spouse is entitled to a pension for life.
Mr Walker argued that the fund should pay out a surviving spouse’s pension to his husband if he outlived him. The tribunals in both cases found in favour of the claimants but the EAT dismissed both appeals.
Relying on the case of Ten Oever v Stichting Bedrijfspensioenfonds Voor Het Glazenwassers-en Schoonmaakbedrijf, the Court of Appeal agreed with the Advocate General who held that “…the extent of [pension] rights falls to be determined on the basis of the Community rule which applied at the time of the period of service on the basis of which those rights were acquired.” As Mr O’Brien had not acquired any pension rights before 7 April 2000 as a part-time worker when the Part Time Workers directive was transposed into domestic law, he could not do so retroactively.
As Mr Walker retired before the Equal Treatment Framework Directive 2000 came into force in the UK, he faced an obstacle to his claim under schedule 9, paragraph 18 of the Equality Act 2010. This states that, in relation to sexual orientation, it is not unlawful for employers to restrict access to a “benefit, facility or service” which accrued before December 2005 (when the Civil Partnership Act came into force), or which was payable in respect of periods of service prior to that date.
The Court noted that Mr Walker’s entitlement to benefit was part of his pay that was earned incrementally during his period of service when it was lawful for employers to discriminate on the ground of sexual orientation. As the treatment was lawful under domestic law when it occurred, the Court held that it could not become unlawful retrospectively. Likewise, his entitlement had to be judged by reference to the EU law in force at the time of his service.
Finally, the Court held that paragraph 18 of Schedule 9 of the 2010 Act was compatible with the Framework Directive. But even if it was incompatible, the Court could not “trespass into the field of law-making which is the task of Parliament and not the court”.
The European Court of Human Rights has decided in the case of Bărbulescu v Romania that it was not a breach of an employee’s right to privacy for their employer to access their professional internet account.
At his employer’s request, Mr Bărbulescu created a Yahoo Messenger account to respond to clients’ enquiries. However, after monitoring the account for a short period, his employer discovered that he had used it to exchange very personal (and in some instances, intimate) messages with his brother and fiancée.
Mr Bărbulescu initially denied the allegation but was then presented with a transcript of the communications. After a disciplinary hearing, he was dismissed for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.
After his complaint was rejected by the lower courts, Mr Bărbulescu appealed to the European Court of Human Rights on the basis that his employer had breached his right to privacy under Article 8 of the Convention on Human Rights.
The Court rejected his claim on the ground that it was not unreasonable for an employer to verify whether their employees were doing what they were supposed to do during working hours. In any event, Mr Bărbulescu’s employer had only accessed the account to find information that related to his professional activities, which was in itself a legitimate exercise.
It concluded therefore that there had not been a violation of Article 8.
December 10, 2018
The December issue of our HR Law update is now available to download