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Agbakoko v Allied Bakeries – Can a mentally ill employee be fairly dismissed if their conduct towards co-workers breaches an employer’s duty of care towards them? Or, is it disability discrimination?

 

It’s Friday which means its time for another dose of case law. This week’s case covers ill health dismissals, duty of care and disability discrimination.

The question this week is:

Can a mentally ill employee be fairly dismissed if their conduct towards co-workers breaches an employer’s duty of care towards them?

Mr Agbakoko, the Claimant, was employed by Allied Bakeries, the Respondent, and worked in their warehouse. The Claimant was good at his job but the Respondent received complaints from other employees about how the Claimant behaved towards them. He received a final written warning and was then off work with stress.

The Respondent then received a letter from an NHS nurse regarding the Claimant’s mental health. The Claimant was sent to the Respondent’s occupational health advisor who said that the Claimant had suffered a psychiatric episode but medication meant they were coping well. Despite this the Claimant was deemed to be disabled.

The Claimant returned to work and began training to drive forklift trucks. During the training’s medical assessment it became apparent he had stopped taking his medication. He was then involved in an altercation with other employees which led to further complaints regarding his conduct. When the Respondent learned that the Claimant had stopped taking his medication they were advised by occupational health that he should be suspended from forklift truck driving. The Claimant was put on paid leave.

The Claimant denied that he had any mental illness and was suspended on health grounds whilst an investigation was carried out. The Claimant was dismissed and as the Respondent believed that regardless of his mental health his conduct put other employees at risk.

The Claimant’s appeal to be reinstated was rejected but the Respondent then received a report from the Claimant’s psychologist stating that he did indeed have a history of mental illness and had been sectioned. The Respondent’s occupational health advisor stated this justified the decision to dismiss on safety grounds as the condition meant his conduct was unlikely to cease.

The Claimant initiated legal proceedings and claims for unfair dismissal and disability discrimination were heard by the Employment Tribunal (ET). The ET said that the Respondent’s disciplinary process had been procedurally unfair because they had not obtained evidence clarifying the Claimant’s mental health nor explored the possibility of redeploying the Claimant elsewhere in the business.

However, as there were no alternative roles (other than forklift truck driver) and the medical evidence only strengthened their reason to dismiss the ET ruled the dismissal fair. It also rejected the claim for disability discrimination as the Respondent did not have confirmation of the Claimant’s disability when they dismissed him and the decision to dismiss was because the Claimant’s conduct put other employees in danger. The same decision would have been reached if the Claimant had not had a disability.

The Claimant appealed this decision but the EAT dismissed the appeal as it believed the ET had been correct in stating that whilst the disciplinary process was unfair the decision it reached was not.

To answer today’s questions

Yes, it is fair to dismiss an employee who has a mental illness if their conduct breaches your duty of care to other employees. However if there is a suitable role that the employee could move to that would not endanger other members of staff then the dismissal may be unfair.

It is also worth noting that many employers fall foul on mental illness and disability when it comes to employment law. Likewise it is unlawful to discriminate against an employee who has had a disability in the past but has since recovered.

To read a similar case concerning discrimination and duty of care click here.

Or, to read our previous Case of the Weeks on disability discrimination please click here.

Posted: Aug 14, 2015 by admin in Employment Tribunal, Unfair Dismissal

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The British Waterways Board, Trading as Scottish Canals v Smith – Employee dismissed for drunk facebook status posted 3 years ago

Good afternoon, on a sunny Friday we thought it fitting that this weeks’ case concerns an employee posting drunk comments on Facebook when they were on standby to work. Maybe it’s best not to sneak off early to the beer garden.

The question this week is:

Is it fair dismiss to an employee for a Facebook status he posted 3 years ago?

Mr Smith, the Claimant, had worked for British Waterways, the Respondent, for eight years. The Claimant’s job was to maintain canals and involved being on standby one week in every five. The team he worked in was not a cohesive one and there was a history of managers not treating staff with respect.

The Claimant raised a formal grievance with his HR manager about the treatment of staff and was set to attend a mediation hearing to try and resolve the matter. However, the Respondent cancelled the mediation and suspended the Claimant after being sent copies of the Claimant’s Facebook posts.

The Claimant had posted several offensive comments about his managers on Facebook including;
- going to be a long day I hate my work

- that’s why I hate my work for those reasons it’s not the work it’s the people who ruin it nasty horrible human beings

- why are gaffers such pricks, is there some kind of book teaching them to be total w*****s

There was also a post from three years ago about being under the influence whilst on standby for work, something which they were expressly told not to do.

- on standby tonight so only going to get half p****d lol

The Claimant admitted to making the statements but added he thought that his Facebook was private and that he had not expressly mentioned who he worked for. The Claimant also said that it was a running joke amongst employees to make jokes about drinking whilst on standby as they knew they weren’t allowed and that he was not drinking when he wrote the Facebook post.

After a thorough disciplinary investigation the Respondent dismissed the Claimant as they believed the public nature of the posts meant that they and the public could no longer trust the Claimant when he was on standby.

Had an emergency happened that night and the Claimant was intoxicated it would have reflected very badly on both the Claimant and Respondent. He was thereby dismissed for gross misconduct.

The Claimant appealed his dismissal and after this was rejected he brought claims for unfair dismissal and victimisation as he had been dismissed whilst an ongoing grievance was being investigation. The Employment Tribunal (ET) rejected the victimisation claim but did allow the unfair dismissal claim. It held that the fact the Facebook statuses were posted 3 years prior to dismissal and that over that period of time the Claimant had been a capable and trustworthy employee. Therefore the decision to dismiss fell outside of the reasonable range of responses.

The Respondent appealed the unfair dismissal decision to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal it held that the Respondent had reasonable cause to suspend the Claimant, had carried out a thorough investigation, the investigation had been fair and that meant the decision to dismiss the Claimant could only be fair. It held that the ET’s decision was perverse and set aside the original ET decision.

Today’s lesson:

Yes, in this circumstances it was fair. Because the Employer had carried out a reasonable investigation and the content posted justified dismissal the time gap between posting and discovery does not matter. This meant that their decision to dismiss could not be deemed unfair.

Here it is worth noting that the public nature of the posts as the Employee did not have a private account. This is crucial as even though the post was 3 years ago it was visible to anyone who looked for it.

To view another high profile case concerning social media please click here.

Posted: Aug 7, 2015 by admin in Employment Tribunal, Unfair Dismissal

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Lighter side of the news – Employee won’t have their cake and eat it

Before we begin here is a joke about cake. What do you call a women with a cake on her head? Victoria (cue slow clap, I’ll get my coat).

An employee at Harrods was dismissed for theft after eating a £7.50 slice of cake. A customer had sent it back for being too dry and the employee also ate a slice of fresh cake as a comparator. Whilst it does seem harsh to dismiss an employee for eating a cake that would have been disposed of anyway what worries us more is that someone purchased a single slice for £7.50! And it was dry!

The employee brought claims of race, sex and age discrimination against Harrods due to an alleged Female Lithuanian Mafia that ran the kitchens. However the claims were dismissed as there was no evidence to substantiate the claims and the employee did not highlight these issues in the disciplinary procedure. In other words his case was wafer thin…..

Despite not being a conventional Case of the Week there is a lesson for employers. When an employee with less than two years’ service brings a discrimination claim for every protected characteristic they could fall into it is quite possible that they are simply clutching at straws or taking the biscuit…..

Posted: Jul 31, 2015 by admin in Age Discrimination, Employment Tribunal

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Top Gear Saga – Restrictive covenants cast doubt on rival show

Following on from our previous piece  about the Top Gear steak-gate controversy, a recent article in the Telegraph has suggested Jeremy Clarkson, James May and Richard (not a real hamster) “The Hamster” Hammond have been unable to set up a rival show on ITV due to restrictive covenants in their previous contract.

It seems that the trio can make a show for ITV but it cannot be about cars so at present the idea is on hold. It has been hinted that there are two possible options:

1) Wait two years for the covenant to expire and begin an ITV rival to Top Gear in 2017.

2) Take the show to a non-UK channel such as Netflix or Amazon that will bypass the restrictive covenant.

If I was the BBC I would be most concerned about option 2. By 2017 Chris Evans will have had chance to entrench himself into Top Gear fans head and after two years of no rival show any defectors will have probably returned to viewing. Furthermore BBC to ITV crossovers rarely work, anyone remember Adrien Chiles?  Actually, it’s better no one remembers those dark times.

On the other hand going to Netflix or a similar non-UK network would allow an instant competitor to Top Gear. This would have more global broadcasting power than ITV and be easily available in the UK as well.

Restrictive covenants can be notoriously hard to enforce but with Top Gear being a key BBC brand worth over £50 million in global revenue it is worth fighting to make sure that such a valuable asset is safe in what will be a transitional phase. To be deemed enforceable the covenant must be; reasonable, necessary to protect business interest, and, last no longer than necessary to protect said interests.

Depending on your view of Top Gear and its former presenters will depend on whether you think the covenant meets the criteria and therefore enforceable. As someone who doesn’t’ like Top Gear or Jeremy Clarkson I am far more interested in outcome of this this than the future versions of the show.

Posted: Jul 31, 2015 by admin in Redundancy

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Tribunal Watch – Select committee to review court fees

Court fees have been highly contentious since they were first introduced in July 2013. The fees were initially introduced to ease the burden of the court service on the exchequer and also prevent petty and vindictive claims.

However, since their introduction there has been an alarming drop in the number of claims, which were down by 55% after 6 months of fee introduction and 75-80% after a year. This drop is partly due to the spike in claims before fees were introduced but it cannot be possible that ¾ of tribunal claims are unfounded.

The committee aims to answer the following questions:

- How have the increased court fees and the introduction of employment tribunal fees affected access to justice? How have they affected the volume and quality of cases brought?

- How has the court fees regime affected the competitiveness of the legal services market in England and Wales, particularly in an international context?

Many employers and HR personal may be cheering about the drop in claims and in some cases they are right to. Anyone who has dealt with a malicious, drawn out, costly, bonkers or all of the above claim will rejoice that they never have to deal with a similar claim again.

But it does seem that many claims are slipping through the net. Employees who don’t get paid the minimum wage, get unfairly dismissed without notice or have unlawful deductions made from their wages often don’t have a spare £1,150 to bring a claim. For that reason it would seem the fees have created a barrier to justice.

Posted: Jul 31, 2015 by admin in Employment Tribunal

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Changes to Tax Free Allowance – Termination Payments

Changes are being proposed by HMRC to the £30k tax free allowance on termination payments. If these proposals are implemented we will end up with Employees paying more tax on their termination payments and Employers paying more Employer’s NICS on termination payments.

I would urge anyone with an interest in this topic to respond to the consultation as this valuable allowance does cushion the blow of loss of employment. It seems clear from the consultation that the powers that be at HMRC do not understand how termination payments work in practice, in particular with settlement agreements.

Posted: Jul 31, 2015 by admin in Settlement Agreements

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Holiday Pay – Employees miss the boat for backdated claims

When the Bear Scotland verdict was published last year many employers were wary employees could bring backdated holiday pay claims back to 1998 when the Working Time Regulations were introduced. As of 1st July if you are yet to receive a claim you are now safer from historical claims.

However employers are still liable for claims dating back as much as 2 years if they are found to have not paid employee the correct amount of holiday pay.

Posted: Jul 31, 2015 by admin in Employment Tribunal

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Leeds Teaching Hospital NHS Trust v Blake – Can an employee be sacked for taking holiday?

Welcome back, this week’s case is about unauthorised absences and victimisation. It is also a good example of an employer successfully appealing a tribunal decisions on the grounds of substitution, something which is rarer than hens teeth!

The questions this week are:

Is it fair to dismiss an employee who has been instructed to use accrued holiday for going on holiday without the company’s consent?

Can an employee have a holiday request rejected if they have not even been allocated work for the days they have requested?

Mrs Blake, the Claimant, had been employed by Leeds Teaching Hospital, the Respondent, as a Porter since for 1987. In 2012 she was given a final written warning for sending confidential information to her personal email and transferred to work as a Security Officer. The Claimant had previously committed protected acts by making allegations of sex discrimination against herself and supporting a colleague in a disability discrimination case.

Prior to moving roles the Claimant had a large amount of untaken accrued holiday, she was advised to take this as soon as possible before she was officially to be put on the security rota. She wrote to her manager requesting dates but was declined for not filling out a holiday form. She made further requests and applied for holiday using the appropriate form and these were all approved.

The Claimant still had untaken accrued holiday and was looking to book a cruise with her family. She called her manager to ask if the dates were ok and upon confirmation from her manager booked and paid for the cruise. She then filled out a holiday form but this was rejected.

The Claimant asked why the holiday request was rejected and requested a formal meeting with the Respondent. The Respondent rejected this request and instead sent a letter explaining that two other members of the security team were away on the requested dates and also stated that any leave taken without consent would be viewed as an unauthorised absence.

The Claimant went on the cruise anyway and upon her return was subject to disciplinary action and dismissed for a serious conduct offense and failing to follow a reasonable management instruction whilst on a final written warning. The Claimant was paid notice pay but nonetheless brought claims for unfair dismissal and victimisation discrimination to tribunal.

The tribunal allowed both claims citing the fact she had been instructed to take all her holiday and had prior verbal consent as reasoning for justifying the absence and that the Claimant had been subjected to unfair treatment on account of her previous protected acts. It also noted the fact the Claimant was not on the work rota anyway as further justification for unfair dismissal.

The Respondent appealed the decision on the grounds that the ET had substituted its own view for that of a reasonable employer. It highlighted the lack of scrutiny of the Claimant’s evidence which it believed lacked credibility, particularly in relation to the victimisation claim.

The EAT decided that the ET had placed too much importance on the response used by the employer without properly examining the evidence. It also failed to recognise that a Respondent has a number of reasonable responses and that dismissal could have fallen into that category. The appeal was allowed and remitted to a fresh ET.

Today’s lessons

No, it is poor practise to informally allow/encourage an employee to take holiday then reject their holiday requests. If this employee has not technically started work or is not scheduled to work in the holiday period then it does give the employee room to manoeuvre and leaves the employer vulnerable, especially since taking holiday is a health and safety issue!

A more important legal point from this case is that the ET can make mistakes, even in a scenario like this where there has been questionable decision making by the employer, the ET fell foul to substituting its own view for that of the Respondent’s instead of that of a reasonable employer. Lesson, sometimes it can be worth fighting an ET decision.

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Posted: Jul 24, 2015 by admin in Unfair Dismissal

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Newbound v Thames Water Utilities Ltd – Can two employees commit the same misconduct offence and get different disciplinary sanctions?

 

Case of the week will be slightly different this week, most of the case law we cover is either in the Employment Tribunal (ET) or Employment Appeals Tribunal (EAT).

However, today’s case is from the next court up in the food chain, the Court of Appeal of England and Wales (EWCA).

The questions this week are:

Is dismissing an employee for ignoring safety precautions justified when the malpractice is commonplace throughout the company?

Should an employee’s length of service mitigate their conduct for one off incidents?

Can two employees commit the same misconduct and get different disciplinary sanctions?

Mr Newbound, the Claimant, had worked for Thames Water Utilities Ltd, the Respondent, as a valve co-ordinator. His job was to maintain all large valves that controlled the Respondent’s water assets.

The Claimant and another employee, Mr King, were scheduled to assess a large sewer valve. This would involve them being in a confined space and was considered dangerous work by the Respondent.

The Respondent ran through the safety procedures for entering the sewer and explained the need for external breathing apparatus as the air could be toxic. The Claimant signed a form to acknowledge the need for breathing apparatus but was not told about the repercussions of not following the procedures.

Upon arriving at the sewer the Claimant and his site manager ran various tests into the safety of the site and the gas detector readings showed the air was not as toxic as predicted. The Claimant, his site manager and Mr King, agreed that no breathing apparatus would be needed. They entered the sewer and took gas detectors to continuously monitor the air quality.

The Claimant’s senior manager then arrived on site and halted the work after noticing the site manager had not arranged for a safety winch to be on site. At this point the senior manager observed the Claimant and Mr King leaving the sewer without the breathing apparatus. The work resumed and the job was completed without further problems.

Due to the senior manager witnessing the Claimant not wearing any breathing apparatus the Respondent investigated the work carried out that day. Due to the serious breach in health and safety procedure the Respondent suspended the Claimant and commenced disciplinary action.

The Respondent only interviewed the site manager and not the Claimant about the incident. The Claimant was dismissed for gross misconduct whilst his site manager was only given a formal written warning. The Claimant appealed the decision citing a general lack of health and safety knowledge across the company as the reason for him not using breathing apparatus as his manager had allowed them to not use it as well.

The appeal was unsuccessful and the Claimant begun tribunal proceedings. The ET found that the Claimant had been unfairly dismissed as even though his conduct had been a serious breach of health and safety procedures the Claimant himself was unaware of the procedures and believed he would be able to rely on his vast experience to decide what action needed to be taken. It further highlighted the fact that the conduct was approved by the site manager who was not dismissed.

The Respondent appealed and the EAT ruled that the lack of knowledge for health and safety procedures should not mitigate the Claimants conduct. It also did not factor in any differential treatment the Claimant and his manager received, the Claimant’s length of service, nor the fact he was interviewed for his own disciplinary investigation.

The Claimant then appealed to the Court of Appeal, we are now through the looking glass here and onto the next level. The EWCA ruled that the original ET had made no error in law when it reached its verdict. It cited the length of service, disproportionate treatment of Claimant and manager, lack of health and safety knowledge and failure to conduct a full investigation as fair justification for the ET’s decision.

The EWCA then stated the EAT should not have allowed the appeal, its decision was cast aside and the ET judgment was restored.

 

Today’s lessons:

An employee should not be dismissed for a breach of procedure if the conduct is commonplace or not known to the general workforce.

When deciding to dismiss an employee for GM there are several mitigating factors that should be taken into account including length of service and conduct by other employees. If the conduct is similar but the outcome different the reason for this must be fully justified.

A further point would be that sometimes an EAT decision isn’t final. If the decision reached is a bad one then the courts will rectify this as they will not want it to become a precedent for future cases, particularly GM dismissals!

If you have work that involves working in confined spaces make sure that your employees are fully trained in a way that complies with the Confined Spaces Regulations. If you would like some e-learning for health and safety training please email us ( emma@pjhlaw.co.uk ).

Posted: Jul 17, 2015 by admin in Employment Tribunal, Unfair Dismissal

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Schaathun V Executive & Business Aviation Support Ltd

Good afternoon, we hope today’s case will pass the time on a sunny Friday afternoon.

This weeks’ case is rather juicy and concerns protected disclosures, office romances gone sour, driving planes whilst drunk and just in case that isn’t enough drama there is also a bit of embezzlement involved (cue dramatic music).

The question this week is:

Can an employee be dismissed for making protected disclosures if they haven’t told the employer they have made them?

Ms Schaathun the Claimant, was a 10% shareholder and company secretary for Executive & Business Aviation Support Ltd, the Respondent, who manage the maintenance of private and corporate jet aircraft.  The Claimant was also in a relationship with the company’s Managing Director.

The MD then tried to end his relationship with the Claimant, the Claimant was then seen at the Respondent’s office copying and taking bank statements and other documents. She was concerned that the MD had been putting personal expenditure through the company.

She also became aware of other issues and made protected disclosures to numerous bodies including; the Environment Agency about the Respondent storing hazardous chemicals at its premises,

HMRC in relation to the Respondent’s abuse of its tax allowance,

Solicitors and an aviation regulator regarding the MD operating aircraft under the influence of alcohol.

In the meantime the Claimant was removed as company secretary. The Respondent argued that this was because there was no longer a requirement for one. The Claimant was still employed by the Respondent in a different role.

The Claimant was then invited to a redundancy consultation, the Claimant requested the MD did not attend and the meeting was conducted by an external HR consultant. Following the meeting the Claimant was dismissed by reason of redundancy.

She brought unfair dismissal and automatic unfair dismissal claims to Tribunal citing the protected disclosures she made and the previous relationship with the MD as the reason for dismissal as there was no redundancy situation.

The ET accepted the unfair dismissal claim but held that as the Claimant had not informed the Respondent of her disclosures they did not qualify as protected disclosures.

The Claimant appealed and the EAT held that despite the Claimant not informing the Respondent about her disclosures they could still have found out about them by other means.

To answer this week’s question, yes, in theory an employer could find out about a protected disclosure without the employee telling them. In this scenario if the prescribed person informs the employer and the employer only has a small number of staff privy to that information it makes it fairly obvious who the whistleblower was.

 

Posted: Jul 10, 2015 by admin in Employment Tribunal, Unfair Dismissal

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