Category Archives: unfair dismissal

Not So Protected Conversations

On 29 July 2013 the government introduced the concept of “protected conversations” which allows for employers and employees to have discussions about the ending of the employment relationship.  The concept is to extend the “without prejudice” rule in circumstances where there is no dispute.

However a protected conversation will only apply in cases of unfair dismissal.  Therefore there are certain circumstances that employers will not be protected from possible employment tribunal claims.  These include:

• with any discrimination complaint, whistle blowing complaint, complaint of automatic unfair dismissal, or breach of contract claim will not be covered. If any such claim is conjoined with the ordinary unfair dismissal claim, in practice the tribunal is likely to hear evidence about the discussions.

• Any discussion which is not “with a view to the employment being terminated on agreed terms”. It will therefore be important that the discussion is not simply cataloguing the difficulties experienced with the employee; it must be a constructive dialogue with a view to a settlement.

• Even if the discussion includes the making of an offer in exchange for the employee’s exit, there remains the possibility that the employee is offended by the conversation and that they regard it as unfair. In those circumstances, the employee may seek to raise a grievance concerning the discussion. It would usually be regarded as a breach of trust and confidence not to hear and address a grievance which might result ultimately in a constructive unfair dismissal claim. It may be unrealistic in practice to imagine that in such a constructive unfair dismissal claim the tribunals will be willing to exclude evidence of the original discussion which will forma an important element of the case.

• “improper behaviour” (in the opinion of the tribunal) will not be covered by the rule. This is not defined in the legislation, and will require to be established through caselaw.

Therefore, employers should be wary about how they approach any discussions they intend to have with underperforming and difficult employees otherwise discussions could be used against them.  


How Not to Sack an Employee

A recent newspaper article wrote about a project manager, Paul Marshallsea, who came home from a trip to Australia to read in a letter that he had been sacked by the charity, Pant and Dowlais Boys and Girls Club, for which he had worked for ten years.

Apparently he had been seen on TV saving some children from a shark attack – deemed to be a hero.  However, whilst doing this he was, at the time, on sick leave from his job.  The charity stated that they had lost all confidence in him.  Whilst the charity may have done so, the action they have taken could lead to legal recriminations in an employment tribunal and they should have thought twice before taking such hasty action.

When suspecting an employee of misconduct or gross misconduct it is important to undertake an investigation first.  In this instance the charity should have invited the employee by letter to a disciplinary hearing with the right to a companion.  During the hearing the charity should have given him time to explain the situation faced with the video evidence of his trip to Australia, this would be part of the investigation process.

The cause of his sickness absence was stress.  An employee off with stress does not necessarily have to sit at home feeling sorry for themselves.  Sometimes on doctor’s advice they are encouraged to have a change of scenery and what a change of scenery Australia is when the UK is in the depths of winter.  As part of the investigation into the situation the charity should have gained medical evidence from the employee’s GP or more preferably, an independent occupational advisor to establish whether the trip was part of a recuperation plan.

The hearing should have adjourned pending the receipt of medical information to inform the situation along with consideration of the facts provided by the employee of his conduct.

Only then should the charity have communicated their decision in writing being sure that they were making the right decision having analysed the facts, to him providing the right to an appeal against dismissal.

This procedure follows the ACAS Code of Practice and an employee at risk of dismissal is owed the basic right to explain his actions and have them investigated to avoid any potential miscarriage of justice.

By acting in haste, the charity may come to rue the decision it took in January to dismiss by letter.  The price of its reputation with this now high profile news item may be too much. That is without any unfair dismissal compensation should Mr Marshallsea and his wife pursue an employment tribunal claim and win…..

Unfair Dismissal And Human Rights – Legal Insanity?

In an important test case, the Court of Appeal has been asked to decide whether the test of ‘proportionality’ laid down by the European Convention on Human Rights (ECHR) should be applied to unfair dismissal cases (Turner v East Midlands Trains Limited).

A senior train conductor who was dismissed after being accused of fraud is arguing that the Employment Tribunal that rejected her case should have considered the personal consequences of her losing her job and found that the circumstances amounted to a violation of Article Eight of the ECHR, which enshrines the right to respect for private and family life.  

Her lawyers argue that her dismissal, at the age of 51, had irreparably stigmatised her previously spotless reputation, ruined her prospects of getting another job and destroyed her relationship with long-standing colleagues, some of whom had ‘ostracised’ her.

It was submitted that the consequences of dismissal were so serious that Article Eight was ‘engaged’ in the case and that the ET should have considered whether the woman’s dismissal amounted to a disproportionate interference with her human rights.
After 12 unblemished years working for East Midlands Trains Limited, the woman – who has always vehemently denied any wrong-doing – was accused of deliberately manipulating a hand-held machine to print out ‘non-issued’ tickets, which closely resemble genuine tickets, and selling them to members of the public for cash.

She was dismissed in March 2010 and has since had her unfair dismissal claims rejected by an employment tribunal and the Employment Appeal Tribunal. However, she is now asking the Court of Appeal to overturn those decisions and order a re-hearing of her case by a fresh tribunal.

However, lawyers representing East Midlands Trains insist that the company carried out a ‘thorough and fair investigation’ before dismissing the woman. ‘It would be an extraordinary state of affairs if dismissal in such circumstances by a private sector employer was, or was capable of being, unfair simply because the appellant’s reputation or ability to interact with her former workmates had thereby been affected,’ it was submitted.
Is this the law gone mad?  If a thorough investigation has been conducted and an employment tribunal and EAT has concluded that unfair dismissal has not occurred then that should be the end of it.  

Rise of the Unfair Dimissal Qualifying Period

On 6 April 2012 the qualifying period for unfair dismissal claims rises from one to two years. The change will only affect new employees whose employment starts on or after April 6 2012. Those employees already in employment will retain the current qualifying period of one year. The change will not affect automatic unfair dismissal claims.

The new timeframe to terminate employment of an employee, if they are not performing to standards, will be one year and 51 weeks.  For employees commencing employment before 6 April 2012 it remains before the 51 week mark.  This is because an employee is entitled to include their one weeks’ statutory notice period in their length of service, to obtain the requisite period of service to entitle them to bring an unfair dismissal claim.  However if an employment contract specifies longer notice than the statutory then termination should be considered many weeks, or months, beforehand.  For example if an employee employed after 6 April has one month’s notice specified in the contract, dismissal should be considered at the 22.5 month stage (or 10.5 months stage for those employed before 6 April). However, in my opinion an employer should not wait until the qualifying period is looming to terminate a badly performing new employee. 

Employers need to use probationary periods effectively to monitor and test new employees picking up quickly on any issues of poor performance providing an opportunity to improve.  Furthermore employers should diarise the cut-off points for continuous service to ensure employees do not attain the requisite qualifying period.  A fair procedure should be adopted when terminating employment including maintaining the paper trail.  Furthermore employers should be vigilant with how they manage employees to avoid possible discrimination as there is no qualifying period to bring an employment tribunal claim for that. 

The introduction of the higher qualifying period is part of the government’s drive to promote employment and to give employers the chance to try out new recruits without fear of unfair dismissal claim.  Time will tell whether this employment reform will assist businesses and boost economic recovery.

Undertaking a Disciplinary Investigation

It was reported recently that a union member was sacked by Salford Council for assault.  He went to an employment tribunal and won his case for unfair dismissal.  The tribunal found that the council had failed to establish that an assault had taken place.  In fact the employee had merely brushed past the manager with whom he was having a heated disagreement in a narrow corridor.
Such a case highlights the importance of rigorous investigation before taking disciplinary action particularly dismissal.  All witness should be thoroughly interviewed at least once if not several times if discrepancies come to light during the investigation process.  They should be interviewed individually using a question and answer format.  Alternatively they should be asked to provide their own statement which should be done whilst supervised.  All relevant paperwork/evidence should also be collated.  The process can be conducted by managers or, as it can take up time, by an experienced HR consultant.  Sufficient time should be taken to ensure the investigation is completed well and a comprehensive report written up.  The investigation forms the basis of whether to go forward to a disciplinary hearing or not.
It should aim to leave no stone unturned and, if done correctly, can prevent a costly miscarriage of justice.

Is the Introduction of "Fire at Will" Dismissals a Good Idea?

Osborne has just proposed the introduction of “fire at will” dismissal law that will enable small employers to dismiss staff more easily.  The employment minister Norman Lamb is unveiling plans during March which would remove restrictions on laying off staff at businesses with fewer than ten employees.  It is proposed that poorly performing employees are laid off whilst the employer can recruit staff who will perform more effectively. It is claimed that current rules allow employees to “coast along” without management action.  The proposal is designed to support the “cutting the red tape challenge” and increase employment.  However, the latter is debateable whether employment legislation is contributing to increasing unemployment.
There are plenty of employers in the UK that do not currently adhere to employment law and in treating their staff poorly run the risk of incurring an employment tribunal claim during which successful employees have the right to be compensated for lost employment rights.
Should the government introduce their proposal of compensated no fault dismissals, employment rights will be diminished.  The government’s proposal is underpinned by an anticipation that the value of small businesses to the economy will increase.  However the danger of changing the law to allow easier dismissals for small companies could instead backfire and scupper the government’s plans of their contribution to economic growth.
There could be many underlying reasons of poor conduct that require deeper investigation and promotes fair treatment.   If the law is changed and small businesses are allowed to operate in a “fire at will” manner, the effects on employee morale within a company could be very damaging.  Company reputation will also suffer and have a negative impact on the bottom line.  If the dismissal has a discriminatory angle employees have the right to go to an employment tribunal regardless of length of service adding to costs.
Poor performance, regardless of company size, is easy to manage through a fair process of monitoring and support.  Practical advice can easily be sought from an HR practitioner. 
The government needs to carefully think about the introduction of such a proposal. Coupled with their firm intention to introduce fees for claimants to lodge an employment tribunal claim, access to employment rights for many down trodden workers will be, all but, practically removed.  This will mean going back to before the beginning of the 20th century when protection for worker rights began and will not be good for the future.