Archive for the ‘Unfair Dismissal’ Category
By Sarah - Friday, September 28th, 2007
It seems obvious, but some employers often forget that the punishment must fit the crime when it comes to issues of conduct. The true legal test is whether the decision was within the band of reasonable responses for the employer to take.
I was speaking to someone today who had an employee caught stealing and who admitted the offence. They were advised (and not by us, I hasten to add) to issue a warning. Very safe advice but theft is Gross Misconduct and could warrant dismissal or a final written warning. The other extreme is where we acted for an employee who was dismissed for Gross Misconduct when one of her direct reports told her wrongly that something had been done. The punishment did not fit the crime in that case.
When carrying out training for employer clients, one exercise we sometimes do with management is getting them to distinguish between red and yellow card offences, to use a football term. It is suprising how lenient some are and how extreme others are. If in doubt seek advice, otherwise you could be left with a problem employee you do not want or be facing a Tribunal claim!
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By Sarah - Wednesday, September 26th, 2007
The Civil Service Appeal Board has issued a report which said that government departments are unlawfully sacking one in four civil servants costing the taxpayer £628,632. The report showed that standard dismissal procedures were not being followed.
This mirrors this firm’s experience of dismissals in the public sector in the last twelve months. We have acted for employees who have been unfairly dismissed without the procedure being followed from all walks of the public sector. Unfair procedures in redundancy, no dismissal procedure in others. Of course this is not unique to the public sector but perhaps we should expect a bit more for our money?
Share your views on the subject with us and your experiences.
Posted in Statutory Procedures, Unfair Dismissal | No comments »
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By Philip - Monday, September 24th, 2007
In my time I’ve dealt with a fair number of cases involving malingerers. Bad backs are diagnosed by Doctors based on what a patient tells a Doctor.For those employees who genuinely have bad backs, most employers have sympathy for and help and support the employee back to full fitness. However an alleged bad back sometimes is a useful cover for a work shy employee wishing to avail himself of generous sick pay scheme.
My personal favourites include an employee who was off with a supposed bad back for many months. One day the employer had a fire on the premises, the absent employee with the bad back was also a retained fire fighter and turned up on the back of a fire engine and put the fire out.
Another employee also off with a bad back was pictured in the local paper having won a pro-am golf tournament. Needless to say both employees were dismissed. We would suggest in cases like this that the reason for dismissal is given as abusing the sick pay scheme.
In the case reported here, the employee was also off with a bad back but was caught on video tape loading and unloading shopping, driving and coming out of the bookies. An employer can discount an employee’s sick note and place weight on what they see, which is normally covert video surveillance.
Just because an employee is caught red handed malingering, it does not mean that this will prevent them from claiming unfair dismissal.
Provided a fair procedure is followed, Employment Tribunals will find in favour of employers where good evidence exists that the employee is shirking. Video evidence is normally good enough, as is a private investigator’s report.
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By Liam - Monday, September 10th, 2007
The EAT has handed down its judgement in Gokce v Scottish Ambulance Service. The case concerned an ambulance being used improperly to taxi a drunk colleague home from a nightclub.
The case makes a good example of a Claimant nit-picking points about the Respondent’s procedure and arguing that the said points render the dismissal unfair.
One such point which we often hear from Claimants is the Respondent did not investigate A Another - hes been doing the same as me. The EAT commented:
“Finally, it is not a ground of unfairness to identify potential misconduct of others who might have been investigated further. The employers investigated those who appeared to them to be most directly involved in the incident. The fact that they might, but did not, trawl wider is not a ground for treating these employees as having been unfairly treated.”
While most employers will (and should as a matter of best practice) try to treat all employees fairly, failing to investigate one employee while investigating another does not necessarily make a dismissal unfair.
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By Sarah - Friday, September 7th, 2007
According to research, almost 20% of small business owners founded their companies after being fired from their last job. 44% of business founders did so because they were sick of their existing job and felt they could do it better themselves.
Call me cynical but I expect the 20% is as high as it is due to the difficulty in getting another job when you have been fired from the last job and not because disgruntled workers are amongst some of the top British entreprenaurs as the authors of the survey would like us to believe.
Unless you have been on the Apprentice being fired is not normally a good career move.
Posted in Unfair Dismissal | 1 comment »
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By Sarah - Wednesday, August 22nd, 2007
An executive was dismissed four months before the transfer of undertaking took place. The male brought a claim for unfair dismissal and race discrimination and the Tribunal held that the dismissal was in anticipation of the transfer! It held the transferee liable both for automatic unfair dismissal and for the transferor’s pre-transfer discrimination.
The first issue for the EAT was whether the transferor had the right to appeal notwithstanding the Tribunal’s ruling that the transferee was liable. The EAT ruled on this preliminary point that it did have the right, since if the Tribunal’s decision was overturned liability would revert back to the transferor. You can read the full decision here.
You may wonder why the transferor would wish to get involved since the transferee was the one against whom the award was made. Well I suspect it related to indemnities given by the transferor to the transferee relating to such conduct matters pre-transfer. The case is interesting from the angle of time between dismissal and transfer and a reminder of the importance of effective indemnities.
Posted in Sex/Race Discrimination, TUPE, Unfair Dismissal | No comments »
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By Sarah - Monday, August 20th, 2007
The controversial statutory dismissal procedures remain in force but there has been little case law to assist practitioners with whether the uplift for failing to follow the procedures should be 10%, 50% or somewhere in between. When acting for employers in either procedure we always plead 50% reduction for employees failure and likewise when acting for employees when we say 50% uplift for employers failure. In the cases we have seen before the Tribunal the amount of the uplift/reduction varies wildly.
There has now been a case before the Employment Appeal Tribunal on the issue of uplift and Polkey deductions. You can read it here. The Tribunal in this case only applied an uplift of 10% which was appealed but the Employment Appeal Tribunal said that the Tribunal has a broad discretion and the Court would be reluctant to interfere with that discretion. What is your experience of the awards?
Posted in Employment Tribunal Procedure, Unfair Dismissal | No comments »
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By Philip - Thursday, August 9th, 2007
Remember Michael Fennessey? Well he has kindly emailed me, pointing my newshound to a blogworthy story that is currently getting the chattering classes of New Zealand spluttering into their G and T’s. The story brings together some hot topics: academic standards, western sensibilities to Muslims. foreign students being milked as cash cows, and academic tenure (or the right of academics to hold a job for life unless there is just cause for dismissal.)
Picture the scene, a not particularly academically gifted or conscientious muslim foreign student from the Middle East requesting an extension of time to hand in her essay as her father had just died. Well this was like red rag to a bull to the lecturer concerned, a Mr Buchanan, who was sacked for sending this email back.
Leaving aside the brouhaha this case has caused, one important point appears to have been missed by the gossiping media folk, judging by his picture (and the number of typos in his email) do you think Mr Buchanan has an Alex Ferguson like fondness for a wee dram? Or is it Alan Curbishley moonlighting pre-season?
Posted in Miscellaneous, Unfair Dismissal | No comments »
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By Liam - Tuesday, August 7th, 2007
As one of the 3.2 million avid facebook users, I don’t think twice about logging on, checking my profile and indulging in a little behind-the-scenes stalking of those school friends I’ve not seen in years. I’m one of the lucky ones. Many employees are now finding that they can no longer access the cyber world of ‘walls’ and ‘pokes’ from their real world of work.
British Gas, Lloyds TSB, Bloomberg, the Metropolitan Police and Credit Suisse are among the increasing number of firms actively blocking their employees from accessing the site from their workstations. They are of the opinion that those working for them are ‘time-wasting’ or ‘dossing around’. As one spokeswoman from Scotland Yard identfied “Access to some websites is blocked as there is no business need for employees to visit them. Facebook is one of these sites. Access to blocked sites is granted when required for business needs only.”
Those that leave websites such as facebook accessible by colleagues may find that they risk running into some sticky situations as 118 118 discovered recently. In an article published today, it emerged that employees at the directory enquiries group are facing being dismissed after bosses were made aware of a group on facebook in which the workers were making comments about callers they had dealt with. 118118 had been trying since May to remove the group, ‘I survived 118118′, describing it as ‘defamatory’ but it was not until today that the group was removed. The company is now investigating the workers who were involved in the group and who are now facing disciplinary proceedings.
With the increasing number of subscribers to facebook and similar sites, cases such as this are on the increase; Royal Mail reported that workers across their company are responsible for at least one hundred groups on the social networking site. In line with the technological advances being made in relation to life in the work place, questions arise regarding where the boundaries lie for employees and employers alike. It is important that companies set out clear policies and standards in relation to use of the internet in the workplace so that everybody is protected, whether it be against time-wasting or against controversial groups making known to the other 3.2 million facebookers out there what your company’s really like.
Posted in Unfair Dismissal | 2 comments »
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By Philip - Monday, August 6th, 2007
If any one is wondering what the post title refers, it’s the theme tune to when the countdown clock counts down at the end of the words and numbers show on Channel 4, formerly presented by Richard Whiteley. I admit that I did use to watch it, when I was at home holding the baby.
The relevance is to submission of unfair dismissal claims. If you leave submission of a claim to the last minute you run the risk of being timed out. In this case the employee after originally sending his claim form by email, sent it to the wrong email address (one letter out). He then sent a test message to the right address and then filed his claim. He had left it until the last 10 minutes of the last day of the period and by the time he sent the email to the right address he was 88 seconds too late. The Tribunal and the EAT dismissed his claim as he had the opportunity to submit on time but left it too late.
In other news Liam came 4th in the National Sailing championship, held last week in Scotland. Well done to Liam, his best ever result.
Posted in Employment Tribunal Procedure, Miscellaneous, Unfair Dismissal | No comments »
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