Archive for the ‘Unfair Dismissal’ Category
By Sarah - Tuesday, June 24th, 2008
As part of the Gibbons review the Government decided to invest additional resources in the ACAS conciliation scheme. We have already seen that the previously fixed periods of conciliation have been removed.
ACAS are currently piloting pre-claim conciliation in Nottingham, Manchester and Newcastle with a view to it being rolled out across the UK from April 2009. It will work in much the same way as post-claim conciliation. However, ACAS will look out for callers that fit the criteria and ask them if they are interested in pre-claim conciliation. We will then hear from ACAS conciliators who will try and settle the claim. If this is unsuccessful then the employee can still issue a claim.
We will as always bring you more developments on this issue as they happen but this may be very useful for unfair dismissal cases where the employee is acting in person.
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By Philip - Monday, June 2nd, 2008
It’s quite difficult sometimes for clients to appreciate that if an employee wins a case of unfair dismissal, it is not a case of winner takes all. The tribunal system is not binary. If a claim of unfair dismissal succeeds, there is a whole range of awards that can be made from zero through to the maximum of £60k, and all points in between.
Tribunals, in the main, can reduce compensation on three grounds: if the dismissal would have occurred in any event, if the employee contributed to their dismissal, or if the employee failed to appeal.
In this case the dismissal was unfair as the employer had failed to tell the employee of their right of appeal. However the Tribunal found that had an appeal been heard then the employee would still have been dismissed as the internal appeal would have failed.
The compensatory award was therefore £0.00. The theoretical liability facing the employer was £60k but the actual result was £o. You can sometimes be better off as an employer, fighting and losing, rather than settling.
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By Philip - Thursday, May 22nd, 2008
When employees are unfairly dismissed, they lose their statutory right to claim unfair dismissal for the first year in their new job (because employees must have a year’s continuous service to claim unfair dismissal). Traditionally there has been a rule of thumb that this is worth about £250.00, possibly more if an employee earns a particularly high salary or has particularly long service.
Recent Tribunal experience in this Firm has been that £250.00 is a bit on the low side. It is arguable that the ‘weeks pay’ figure used, for example, in the calculation of statutory redundancy pay (currently £330.00), would be more appropriate. Not a massive increase, but worth keeping in mind!
Posted in Employment Tribunal Procedure, Unfair Dismissal | No comments »
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By Liam - Friday, April 25th, 2008
The EAT have overturned the decision of an Employment Tribunal which made the mistake of substituting its own view for that of the employer. This appears to be a common mistake of Employment Judges. For example here and here.
This time, the Tribunal decided it would have carried out more investigation than the employer, rather than deciding whether the investigation the employer carried out was within the range of objective reasonable responses. The EAT pointed out that the range of reasonable responses test applies as much to investigations as it does to decisions to dismiss. This has been established law since Sainsbury’s Supermarkets Ltd v Hitt.
This confirms that for a dismissal to be unfair by reason of inadequate investigation, it is not sufficient for the Tribunal merely to identify further lines of investigation that the employer could have carried out. The Tribunal must be satisfied that the investigation did not meet the standards that a reasonable employer’s investigation would meet.
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By Liam - Tuesday, March 18th, 2008
In Millbrook v Jefferson, the EAT give detailed consideration to an employers investigation in a claim of unfair dismissal of an employee with 20 years’ service following two remarks which were alleged to be racist and bring the company in to disrepute.
The employee admitted making the remarks and claimed that the remarks were flippant - not racist. As the employee admitted the remarks, the employer did not interview all relevant witnesses that were present when the remarks were made. The Tribunal decided the employer should have interviewed all the witnesses to the remarks and in not doing so failed to carry out a proper investigation. The EAT accepted that if the employer took the view that the remarks were made flippantly, as this was admitted by the employee there was nothing to be gained from interviewing the witnesses. However, if the employer took the view the remarks were not made flippantly, it should have interviewed the witnesses in order to gain relevant evidence as to the context of the remarks. The EAT also added that the employer might impose a lesser sanction if the remarks were made flippantly rather than with racist intent and it was therefore relevant as to whether the remarks were flippant or racist.
The lesson from this case is that unless an employer receives a full admission that completely fits in with its belief as to what happened, all relevant witnesses should be interviewed to avoid a finding that the investigation was inadequate.
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By Philip - Friday, March 7th, 2008
A case reported here covers the principles governing a number of issues in the conduct of employment tribunal cases:
- When can without prejudice correspondence be disclosed to a Tribunal? Unless the without prejudice correspondence is unambiguously hiding impropriety then the only circumstances it can be shown is where both parties waive privilege.
- The circumstances in which re-engagement can be ordered? An offer having been made and refused, under the cloak of without prejudice correspondence, is not material to a Tribunal’s decision making on re-engagement.
- Whether losses flow after an unfairly dismissed employee finds another job, which he then loses after his probationary period? Losing another, different job, after a probationary period may not break the chain of causation.
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By Sarah - Thursday, February 14th, 2008
What better topic for debate today than office romances. Here at the office there were no Valentine cards arriving and no mysterious bunch of flowers. Thankfully here we don’t mix business with pleasure.
Some employers actively discourage relationships at work and other seem by conduct to encourage it. One employer who will remain nameless, arranges a large number of work socials for employees (no partners allowed) and even an annual ball where the staff get all dressed up but again no partners allowed. Whilst there may be tax reasons for this decision it far from discourages work place romances fuelled by large amounts of alcohol.
We recommend that employers have some form of policy on office romances to avoid any misunderstandings. When things are all loved up it is fine but when it all goes wrong that is when the likes of us lawyers have to step in. Over the years we have seen a number of cases of unwanted advances at work and even cases where people have lost their job when the relationship sours. It all gets messy with allegations of sex discrimination, unfair dismissal and even sexual harassment.
So tonight however you are celebrating - you have been warned!
Posted in Sex/Race Discrimination, Unfair Dismissal | No comments »
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By Philip - Monday, February 11th, 2008
Can an employer take into account an expired warning?
The Court of Appeal in Airbus and Webb have said yes.
An expired warning can be taken into account if a similar offence has taken place after a warning has expired. An expired warning cannot, of course, be totted up if the offence is misconduct rather than gross misconduct.
If, for instance, an employee has committed an act of gross misconduct, say for abusing an employer’s Acceptable Use Policy, an employer can give him a final written warning as “a last chance.”That warning would last 12 months.
If the employee commits the same or similar offence of gross misconduct one month after the warning has expired, the employer can dismiss summarily and take into account the fact that the employee has had his “last chance.”
In the Airbus case a number of employees were caught watching tv in Company time. Mr Webb was dismissed as he had received a final written warning, some 13 months previously for the same offence. The other employees were given a final written warning, as they had clean records.
If your employer shows leniency and allows you to drink in the last chance saloon, you will probably only be allowed one visit. If you then do the same thing after your visit to the last chance saloon has expired, any cry of “time gentlemen please”is likely to be fair.
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By Sarah - Wednesday, January 30th, 2008
On the 1st February the amount for a week’s pay will increase from £310 to £330 for the cap for statutory redundancy and basic award.
This also means that the cap for Unfair Dismissal claims will rise to £63,000 after the 1st February 2008. Not many get to that level in any event unless the employee has long service and high earnings.
Posted in Redundancy Payment, Uncategorized, Unfair Dismissal | No comments »
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By Philip - Monday, January 21st, 2008
A common query is whether an employer can apply different sanction to different employees for very similar offences.
The answer is yes.
In the case of Harrow BC and Cunningham the judge at the EAT came up with a memorable saying that encapsulates the legal position. In operating a disciplinary procedure the employer should operate , using the procedure as a “guideline” rather than a “tramline”.
It will be very unusual for an employer to have two disciplinary cases with identical facts. Provided there is a rational basis for applying different sanctions, then any dismissal will not normally be outside the range of reasonable responses.
The principles were recently reviewed by the EAT in a case involving a lifeguard at a municipally run swimming pool.
The principle held good. The employer must have a rational basis for applying different sanctions . These could include: gravity of the offence, work and disciplinary record of the employees, length of service, position within the organisation.
So employers are entitled to use their discretion but must do so in a logical way.
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