If an employer doesn’t follow the correct procedure with notice of dismissal then it gives rise to legal claims. Except in cases of gross misconduct, an dismissed employee has the right to their statutory or contractual notice period (whichever is greater).
An employer can give notice of dismissal by email, letter or in person (but writing is best, to avoid dispute about when it happened). The notice only period starts when the employee is aware of it, not for example, when the letter is posted.
A recent case took the view that notice of dismissal sent by post is only effective once the employee has had a reasonable time to read it.
A letter giving notice of dismissal to a Mrs Haywood dropped through her letterbox while she was away on holiday. She read it on her return and the issue was when the notice period began. This was important, as she would get enhanced pension if dismissed after her 50th birthday, which she celebrated whilst on holiday. The employer argued that the notice period ran from the delivery date (which was before Mrs Haywood turned 50) and that they didn’t need to pay the enhanced pension.
The Supreme Court (formerly the House of Lords) upheld Mrs Haywood’s claim, stating that the notice period began when she had the opportunity to read the letter, not when it was delivered. This creates uncertainty for employers, as they cannot always predict when a letter will be read. As a result, the date of dismissal may not be that which was intended. However, the court ruled that only a reasonable amount of time would be afforded to an employee and wilful delay will not be considered.
To avoid this confusion, the contract can set out how notice of dismissal is served, then this ruling will not apply. It is also sensible to plan giving the notice to ensure the employee will not be away on leave or off ill, which can delay the process. If notice is to be served by post then it should be followed up by email or telephone call to make sure it has been received. Also, asking the employee to confirm receipt of the letter could be useful.
Finally, it is best practice to give notice at a face-to-face meeting as it guarantees clarity for both the employee and the employer.
Case report: Newcastle Upon Tyne Hospital NHS Foundation Trust v Haywood
Reporting by our intern Maliha
Image used under CC courtesy of Garry Knight.Read More
Dr Drzymala worked for Royal Surrey County NHS Foundation Trust (‘Trust’) on six successive fixed-term contracts (with each fixed term contract lasting six months), has won her unfair dismissal claim for the Trust not renewing her fixed term contract. See here and here for more information on unfair dismissal claims.
In around April 2014, Dr Drzymala applied for a permanent post. 20 minutes after the interview, she was told that she was unsuccessful and that the other candidate had been selected. The Trust discussed that there may be future roles as a speciality doctor, however this was a lower-ranking post than Dr Drzymala’s Locum Consultant post. On 23 June 2014, the Trust gave notice that her employment would end, as the Trust chose not to extend her latest fixed-term contract.
Dr Drzymala wrote a formal grievance, which included an appeal against dismissal. By the time she left on 30 September 2014, the grievance process had not concluded.
The Employment Appeal Tribunal (‘EAT’) upheld the Employment Tribunal’s finding of unfair dismissal. The Trust’s mistakes in this case was not to properly discuss the possibility of alternative employment and not giving Dr Drzymala the right of appeal against the non-renewal of her fixed-term contract.
This case illustrates that employers must be aware that, in the case of employees with at least 2 years’ service, the non-renewal of a fixed-term contract counts as a ‘dismissal’ for the purposes of unfair dismissal.
Therefore with these employees, employers must ensure that the reason for not renewing is a ‘fair’ reason and is ‘reasonable’ (reasonable in relation to the ‘procedure’, and the ‘decision’). In this case, the Trust clearly failed on procedural grounds, which led to the EAT upholding Dr Drzymala’s unfair dismissal claim.
By Zahid RezaRead 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
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
Employment lawyers in Birmingham and around the country have welcomed a recent Employment Appeal Tribunal (EAT) decision that highlights the dangers of contacting employees who have been on sick leave for a long time.
It’s a tightrope; employers should keep absent staff in the loop but not cause them distress by unwanted contact.
In this case of the EAT held that an employee was constructively dismissed because of the content of a letter she received from her employer while she was on sick leave.
The dangers include a claim for unfair constructive dismissal because the contact breaches the implied term that (effectively) the parties should not act unpleasantly towards each other.
The usual situation that is relevant is when an employee is off with a mental condition including depression or anxiety.
The employer in this case sent two letters to the employee, who responded saying that she was in “no fit state to communicate without breaking down”.
A month later, they sent another letter, proposing a meeting. But it wasn’t a meeting about her absence. They were trying a different tack – criticising her performance. But none of the complaints were urgent and most had already been dealt with. It was a cruel, tactical letter.
The employee resigned and claimed constructive dismissal and unfair dismissal, disability discrimination, harassment and other claims.
She won her claims for constructive and unfair dismissal.
This is a case of particular interest to two of our Walsall clients, who are in the same position at the moment; off sick and wanting to resign. The case emphasises how careful employers and HR need to be in this kind of situation.
Employers need to do some communicating with an employee during their absence; after it would be unreasonable to make them feel ignored. A common complaint is that they feel left out of the loop.
Employment lawyers warn employers to keep contact to a minimum and stick to their return to the workplace. Disciplinary and performance issues should not be broached, nor should other work-related issues unless they are urgent.
It is sensible to check that absence policies reflect this, to avoid managers making mistakes. In fact, it is good practice to ensure that employees who may be suffering from mental illness are only contacted by a named person, ideally in HR.
From the employee’s point of view, if they are wanting to leave with a potential claim for unfair constructive dismissal it is important to know that remaining off work sick is rarely helpful because the time away from the office reduces the likelihood of a breach of contract taking place. Often, for the sake of their health they should stay off sick, but for the sake of their claim they should get back to work.
Case report: Hodkinson v Private Medicine Intermediaries Ltd