It is well established that an employee has a right to appeal the outcome of a disciplinary hearing. We look at some recent caselaw which raises the question of whether a successful appeal following the disciplinary appeal procedure can reverse what was originally a dismissal.
Mr Patel (the claimant) started working for Folkestone Nursing Home Limited (the respondent) as a Care Assistant in 2008. In 2014, he was charged with:
- Sleeping on duty; and
- Falsifying the records of residents by pre-recording that they slept through the night.
Mr Patel attended a disciplinary hearing on 28 March 2014. His defence was that he was sleeping during his break and that pre-recording records was a common and accepted practice. The outcome letter found both allegations proved and he was dismissed with immediate effect for gross misconduct. But his appeal overturned the dismissal. The appeal outcome letter referred only to the first allegation. As it didn’t address the second one allegation, it was unclear whether this finding had been overturned. He wasn’t happy and did not return to work.
He lodged a claim for unfair dismissal (among other claims) in the employment tribunal (ET). The ET held that the successful disciplinary appeal did not revive Mr Patel’s contract of employment. The employment appeal tribunal (EAT) overturned this decision, stating that Mr Patel ended up not dismissed, so he couldn’t bring a claim for unfair dismissal.
He took the case to the Court of Appeal (CA).
The CA held that the effect of a contractual rights to disciplinary appeals is that if successful, the appeal revives the contract and extinguishes the original dismissal.
This decision confirms that where there is a contractual appeal procedure and an employee succeeds in using it to overturn the original sanction of dismissal, their employment is revived and the original dismissal vanishes.
It is widely believed that the position is the same for a non-contractual appeal procedure (i.e. contained only in a handbook), however the law is unclear on this point.
Tactics for employers and employees
For employers, they can use their disciplinary appeals process as a safety net to rectify what may otherwise have been an unfair dismissal. Employees have a good incentive to appeal even if they don’t want their job back – it can cost them up to 25% of their compensation if they win an unfair dismissal case.
For employees, it is advisable to appeal in order to avoid a 25% reduction in compensation but should they do this when they don’t want their job back? Yes. They should say that they are only asking their employer to overturn the decision about guilt, to clear their name or for an apology, but not to re-instate them. If the employee does get their job back, they get it with back-pay to the date of the dismissal.
An employer faced with this attempt by an employee to have their cake and eat it should refuse to hold disciplinary appeals on that basis. It is a no-win situation for them.
The employer could even try granting the appeal and take a chance on reinstating tactically. After all, they know the employee doesn’t wish to return to work and they might resign, potentially leaving them without a tribunal claim, though this tactic is untested.
Just to be clear, a dismissal that is upheld remains a dismissal at the original date. An employee who is up against a time limit can’t argue that the date of dismissal was the date of the appeal. And an employee can’t have the best of both worlds by putting in a tribunal claim and then appealing – if the appeal is successful, the unfair dismissal claim will fail.
Finally, if an appeal results in a finding of guilt but demotion and even a demotion is out of proportion with the allegation, then this provides the right to resign and claim constructive unfair dismissal.
By Zahid Reza
Image used under CC courtesy of Reading TomRead More
When bringing a discrimination claim, the time-limit is 3 months, less a day, from the discriminatory act. This is clear-cut where it is just a single act of discrimination complained of. However, in cases where it is alleged an act or acts extends over a period of time, it is from the final act in that sequence that the clock starts to tick. Often there can be a fine line between a single act with continuing consequences, and a continuing act.
In a recent case, one of the key questions was whether each act taken within the disciplinary procedure was a single act, or whether all of these acts could be classified as continuing acts of discrimination.
Mr Hale was a Consultant for Brighton & Sussex University Hospitals NHS Trust (‘Trust’). His job title was Clinical Director; he was the line manager for many junior doctors and other clinical staff. Four members of his staff lodged a collective grievance against Mr Hale, alleging racially offensive remarks, bullying and harassment. From 10 February 2014, Mr Hale was signed off sick and was later diagnosed with depression. On 13 June 2014, Mr Hale lodged a formal grievance alleging racial harassment against three of the four junior doctors who lodged the collective grievance against him. The Trust concluded that Mr Hale had a case to answer (on the grievance made against him by the four junior doctors), whereas the three junior doctors did not have a case to answer (on Mr Hale’s grievance). The Trust started disciplinary proceedings against Mr Hale which resulted in his dismissal.
Mr Hale lodged a claim against the Trust, claiming that the Trust’s lack of investigation into his grievance was on the grounds of race. The Employment Tribunal (‘ET’) took the approach that each step of the disciplinary procedure was a separate act (i.e. (1) starting the disciplinary procedure; (2) inviting him to a disciplinary hearing; and (3) the decision to dismiss). In taking this approach, the ET found that the first act was seven months out of time.
When Mr Hale appealed his case to the Employment Appeal Tribunal (‘EAT’), the EAT had a different analysis to this point.
The EAT disagreed with the ET and held that the decision of the Trust to instigate disciplinary proceedings “created a state of affairs” that would continue until the disciplinary process ended. Therefore the EAT found these acts to be continuing acts (not singular acts as the ET concluded). The EAT commented that each of the steps taken in accordance with the procedures cannot be “isolated or specific acts”.
By Zahid Reza
Image used under CC courtesy of Truthout.orgRead More
Today’s Victoria Derbyshire programme on BBC News discusses maternity discrimination.
It highlights that when employers settle cases, there is typically a gagging clause that prevents the employee from talking about the settlement, so cases get under-reported.
This meets with our experience. We have rarely seen a settlement agreement for maternity discrimination, or any kind of discrimination, that didn’t contain a confidentiality clause.
This can prevent the employee from discussing
- the details of the dispute
- the negotiations
- the fact of settlement
- the terms of the settlement; or
- the amount of the settlement
Or it may extend to all of the above.
The programme found that around one in nine of mothers had been dismissed or treated so badly they felt they had to leave their job. We think that only a small proportion of these will have brought a maternity discrimination claim. New mothers often tell us that they have their too hands full with the new baby to deal with legal claims.
The programme spoke to Catherine McClennan, who won a maternity discrimination employment tribunal case in 2015 against her employer, the TUC, the union, receiving an award of £21,000 in compensation.
Among her claims was that she was left off the company’s telephone list when she went on maternity leave.
The Women and Equalities Committee recommends a “dismissal ban” for pregnant women and new mothers. At the moment, they can be dismissed as long as the reason is not linked to the fact of pregnancy or maternity absence or a linked reason.
The government says it is determined to tackle pregnancy and maternity discrimination. However we are not aware of specific plans and many feel that Theresa May has her hands full with Brexit.
By Zahid Reza
Image used under CC courtesy of Rob ChandlerRead More
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Grace from Birmingham, her dismissal for gross misconduct and the lessons to be learned from it.
Grace worked for sixteen years as a PA at a well-known company. In January 2014 she was dismissed for gross misconduct after an investigation into the theft of £40,000. She was adamant that she was innocent and backed this by paying privately to challenge the employer’s decision to dismiss her. In terms of evidence the actual perpetrator had access to the petty cash tin and could make withdrawals using her name. All the withdrawals were logged in a petty cash book and nowhere else. We understand that the company has now tightened its petty cash procedures.
The firm found her guilty of 30 thefts adding up to £40,000 and she was made subject to a dismissal for gross misconduct. Two junior colleagues gave statements saying that she had asked for petty cash on numerous occasions between 2013 and 2014. Grace strenuously denied the allegations but in face of two witnesses saying she was responsible for all the withdrawals it was always going to be an uphill struggle to win the case. The company’s only record of the transactions was in a cash book. Unfortunately Grace lost it when she took it home to see who had been forging her signature when withdrawing the cash, having been told that an audit had uncovered the financial irregularities. This led to the investigation into her involvement.
Understandably, Grace felt under immense pressure and became emotional during the investigatory and disciplinary meetings. She did not manage to properly explain her case to the best of her ability and had lost the key piece of evidence. The chances improved when she realised she could show that on some of the days when money had been withdrawn she was on holiday. The company however showed that some of these were half days off.
If Grace had kept better records and had not lost the book she would have stood a better chance of successfully answering to the allegations and ultimately winning her tribunal claim.
Her case highlights the importance of evidence and why employees should take care with petty cash records, especially when working a finance department. If the employer’s record-keeping is poor, employees should keep their own records. Confirming things by email means that there will always be a paper-trail, which may exhonerate you down the track.
By Naomi Vlad
Image used under CC courtesy of SuperRabbit
One of London’s most historic financial institutions, Lloyd’s of London, has given a shock to employees who like to enjoy some lunchtime with their alcohol – disciplinary proceedings!
The institution has banned its 800 employees from drinking between 9am and 5pm from Monday to Friday which includes the lunch break.
A Lloyd’s internal memo to staff acknowledges that “the London market historically had a reputation for daytime drinking”, but that the time for change has come. This comes as a result of around half of the disciplinary action cases in the past 12 months being found to relate to the misuse of alcohol.
The ban marks a wider culture change among City workers. The price for office-hours consumption of alcohol is disciplinary proceedings for gross misconduct and perhaps dismissal.
The ban will apply to the firm’s employees, but not brokers or underwriters from other corporations based at the insurance market in Lime Street. This measure was received with backlash from workers who state that they were not consulted and the ban is not necessary as they can drink “responsibly” during work hours. Comments from employees include for example, one worker asking: “Will we be asked to go to bed earlier soon?” Another questions whether employees face being breathalysed at work to enforce the crackdown. Another worker further stated that: “Lloyd’s used to be a fun place to work. Now it is the PC capital of the world where you can’t even go out for a lunchtime pint anymore.”
Support for the ban can be seen from a market commentator, David Buiks, who said that there is more competition between workers as banks and financial firms look to cut back on staff, meaning staying sober is more important than ever before. He added, “of course it is more than made up for at night when the wine, spirits and beer flow like Victoria Falls.”
The ban is designed to align Lloyd’s of London with many firms in the market. For example, insurer Hiscox already has a policy in place that forbids staff consuming alcohol during work hours. The question is how far an employer can police what workers do when they are outside the office, in their own time. In light of this, QBE has advised staff not to drink but it has stopped short of an outright ban. Despite criticism from employees, the prohibition stands because as the Lloyd’s of London staff memo stated “a zero limit is simpler, more consistent and in line with the modern, global and high performance culture that the firm wants to embrace.”
Our view is that a dismissal for failing to respect the alcohol disciplinary rule would very potentially be unfair and we look forward to the first cases to come from this.
By Gina Mukova
Image used under CC courtesy of Phillip CapperRead More
MPs are calling for employers to be fined firms for sex discrimination in dress codes.
The government must ban sexist dress rules at work that discriminate against women, a committee of MPs has recommended.
The Women’s and Equalities committee began an inquiry following the case of Nicola Thorp, who was sent home from a receptionist’s job with PWC for not wearing high heels. She refused to obey the then rules of her employment agency, Portico, that she should wear shoes with heels that were between two and four inches high.
She argued that wearing them all day would be bad for her feet and that her male colleagues were not asked to follow similar rules. “This may have started over a pair of high heels, but what it has revealed about discrimination in the UK workplace is vital, as demonstrated by the hundreds of women who came forward via the committees’ online forum” Mrs Thorp said. She added: “The current system favours the employer, and is failing employees“.
The committee received reports of women being told to dye their hair blonde and wear revealing clothes at work, such as shorter skirts.
Her parliamentary petition on the issue gained more than 150,000 signatures.
The committee said the Equality Act 2010 should ban discriminatory dress rules at work and that but in practice the law is not applied properly to protect workers of either sex. Chair of the Petitions Committee, Helen Jones MP, said: “It’s clear from the stories we’ve heard from members of the public that Nicola’s story is far from unique.” It said that discriminatory dress codes remain commonplace in some sectors of the economy.
The MPs report recommends a publicity campaign to ensure that employers know their legal obligations that workers know how they can complain effectively. But its key recommendation is that the existing law should be enforced more vigorously, with employment tribunals able to apply bigger financial penalties.
A government spokesperson said: “No employer should discriminate against workers on grounds of gender – it is unacceptable and is against the law. Dress codes must be reasonable and include equivalent requirements for both men and women.
By Naomi Vlad. Image used under CC courtesy of Veenya VenterRead More
From time to time we will tell you about a Birmingham employment law case we have recently dealt with. This is the story of Francis, a window cleaner, and the discplinary process that led to his dismissal.
Francis was an employee in a multinational business that provides, among other services, window-cleaning to commercial customers.
Francis was caught on CCTV standing on an office chair to clean a window in a client’s prestige car showroom. This was a clear breach of Health and Safety policy and common sense. In a disciplinary process he said he did it because the firm did not provide him with a safe step-ladder.
In reality, a step-ladder was available, but it had not been inspected in over a year, which according to the firm’s health and safety policy should not have been used as it was not proved safe.
Francis had actually asked his employer for new, safe equipment several times before the incident. He had evidence of this as his colleagues had seen him asking for it in meetings.
So why did Francis take the risk of being caught breaching the health and safety policy? He said he was under pressure, as his employer threatened his employees to reduce their pay if a customer complained about their work.
After a disciplinary process, Francis was dismissed for gross misconduct. An important aspect of employment law is reasonableness. Francis’s dismissal seemed excessive and unfair, especially when Francis had been working for the company for over 13 years and had a clean disciplinary record.
Francis claimed that the company was trying to reduce jobs and saw an opportunity to replace a redundancy process with a disciplinary process. The theory that the firm was in financial difficulties explained things like equipment not being replaced, management not giving holiday pay to staff and the weekend pay being lower than promised.
The company’s position was that Francis had (by his own admission) breached the Health and Safety policy and that this justified his disciplinary process and dismissal. After appealing and going down the tribunal route, the employer agreed to pay Francis £7k in compensation for lost earnings after his dismissal.
What swung it for Francis is that he had witness evidence from a colleague showing that the equipment was faulty and that the firm was putting him under financial pressure, which could partially justify breaching the firm’s policy. This case shows that a claimant in a similar situation needs evidence to support his claim.
By Lily Wilde
Image used under CC courtesy of VictorRead More
The Dorchester, a five-star hotel in London, is yet another company to make the news for threatening staff with misconduct proceedings for not following a strict dress code (see our other articles here) and here. It has been reported that due to complaints about staff hygiene, female staff have been issued a dress code which asked them not to turn up to work with oily skin, bad breath or garish makeup. The dress code also requires that the female workers shave their legs, have manicured fingernails and to ensure that they do not have body odour.
The law of dress codes in the UK
Dress codes will vary from job to job. They may be set out by the company to represent the way in which it wants to present themselves to customers (eg business casual), or to create a business-like ethos (ties and pinstripe) or it may be for health and safety reasons (eg hair-nets and boots). It is commonplace for serious or repeated breaches of the dress code to be punished with disciplinary proceedings for misconduct.
Dress codes however should comply with the non-discrimination rules set out in the Equality Act 2010; these apply to age, disability, gender reassignment, religion or belief, sex or sexual orientation.
The law requires dress codes to be imposed to an equal degree. They may be different for both genders if this is consistent with societal expectations. So it is not automatically sex discrimination to make women wear skirts and men trousers. Or to ban men from wearing make-up. The courts will give a certain amount of discretion to employers in regards to dress code policies.
In fact, this runs contrary to the usual point of discrimination law, which is to prevent societal expectations from giving employers a defence. An employer cannot, for example, refuse to hire BME staff on the basis that its clients wouldn’t approve. In one case, a Mr Jarman won a case for discrimination for being disciplined for misconduct for wearing an earring, when female colleagues were able to wear earrings without facing any action.
Legal action to be taken against the Dorchester?
Employment lawyers warn employers that that dress code policies should be “reasonable and proportionate in nature” and should be related to the work that is being carried out. That is, whilst it might be okay to ask a receptionist to wear make-up, you wouldn’t ask that of a plumber.
Employment law provides that dress codes can be different in nature as long as they don’t impact disproportionately on one sex. However, in this case the female employees (who are being paid the living wage) are not given any additional pay to reimburse the cost of manicures or make-up. This is an argument that we look forward to seeing run at an employment tribunal.
By Emma Bonehill
Image used under CC courtesy of Trec_LitRead More
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Dav.
Dav drove HGVs for 15 years with the same company. A few years ago he started suffering health problems and his employer re-assigned him temporarily to a different role.
He was diagnosed with sleep apnoea, a condition that interrupts breathing during sleep. Left untreated, this can cause the patient to fall asleep during the day. Once the diagnosis was made, his doctors notified DVLA, who suspended his driving licence until it could be treated. He was treated with a Continuous Positive Airway Pressure (CPAP) machine, to be used whilst he was sleeping. After his doctors signed off that it was working, he was allowed to resume driving by the DVLA.
A couple of years later, at a routine hospital review, he learned that he had been using the machine slightly wrongly and again the doctors told the DVLA.
However, this time, his employer had had enough. He was sacked on the spot.
Dav searched for employment solicitors in Birmingham. Employment law was on his side. It is unfair dismissal to sack someone with more than two years’ service without following a procedure. Sacking someone on the spot is no procedure at all and in his case that would lead to £5k in compensation.
But he could also expect to receive a large award / settlement if he could show that dismissal was also unfair in practice. This would be the case if the decision to dismiss would have been the same, even after a proper procedure. In that case he could expect to obtain compensation for a reasonable period of lost income.
And because sleep apnoea is a medical condition that qualifies as a disability, the actions of the employer drove a coach and horses through the Equality Act’s employment law protections for the disabled, amounting to discrimination. The dismissal was discrimination for a reason relating to his disability, that reason being the suspension of his licence.
He came to us for employment law advice and we offered to take his case on a no-win, no-fee agreement, which would entitle him to legal advice all the way to trial at no cost if it was unsuccessful.
The employer’s only real argument was that without his licence, if Dav had no income if wasn’t because he was dismissed (the employer’s fault) but because couldn’t get a new job with his medical condition (not the employer’s fault). They would still have to pay compensation but not as much. So Dav worked very hard to chase the hospital and DVLA to get a clean bill of health and his licence back, which took away this argument.
We had to issue a claim to do it but we secured a settlement for just under £20k. The employer learned a valuable lesson that day.
Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.
Image courtesy of Sally Butcher, used under CC
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Charlie, a hotel worker and his disciplinary for gross misconduct for vaping.
Almost all employers ban smoking in their buildings, though some provide a place outside where smokers can gather. The law prohibits smoking in buildings accessible to the public but vaping is down to the individual employer.
We are finding that employers generally don’t allow vaping, either for image reasons – it looks like smoking from a distance – or because some people may not like the smell.
It is sensible for an employer to have a handbook that sets out the position but this is not strictly necessary as long as staff know that it is considered a disciplinary offence.
Charlie works in a hotel chain and had been given a written warning for vaping at work, though this wasn’t prohibited by the handbook. This week he came to us complaining that he had been invited to a disciplinary misconduct meeting for setting off a smoke alarm in one of the rooms and managers believe that his vaping was to blame.
When the alarm sounded, his manager asked him where his vaping ‘mech’ was and Charlie answered that it was in his locker. His manager didn’t follow that up at the time, for example by checking his pockets or his locker.
So now, it is hard to get to the truth of what set off the alarm, which can be triggered by deodorant and opening a can of carbonated drink.
We are advising Charlie and if his disciplinary goes against him we will help him with a claim for unfair dismissal – he has 15 years’ service with the hotel chain and a lot to lose from this disciplinary process.
He can’t claim that he didn’t know vaping was against the rules – although the handbook is silent on the matter, he knew from his previous disciplinary. But his defence is that he wasn’t vaping, there is no evidence that he was vaping and the employer must not dismiss if no reasonable employer would dismiss where there is no evidence.
Sadly for Charlie, he expects to be dismissed – he thinks his employer is gunning for him. We’ll keep you updated by updating this blog post.
Our clients agree to the use of their stories but names are changed for anonymity
By Jason Harbourne
Images courtesy of Jonn Williams, used under CC
**Update November 2016: The result of the disciplinary was that Charlie was cleared and so not given any warning**Read More