April 2018 bulletin

Welcome

The role of Human Resources in disciplinary proceedings continues to be a hot topic. Managers conducting a disciplinary investigation or hearing may need advice from HR. However, HR should confine their advice to technical matters such as the law and procedure. If HR try and influence the decision-maker or persuade the manager to dismiss, then this may make the dismissal unfair.

This is illustrated in the case of Mr Ramphal who was unfairly dismissed from the Department for Transport, when an HR officer persuaded the dismissing manager to change his view of the sanction from a final written warning to dismissal.

This does not mean that HR can never be the decision-makers in a case. Some smaller businesses rely on HR professionals to conduct investigations and even disciplinary hearings and appeals. The trick is to make sure that the role of HR is clearly defined. If an HR professional conducts the investigation for example, then they should not advise the manager on the disciplinary hearing or appeal. The procedure should be fair and transparent. The employee must be given the opportunity to put his case to the true decision-maker.

In a case involving Arnold Clark, different members of HR were the decision-makers at the investigation, dismissal and appeal stages. This was acceptable. However, the dismissal of Mr Spoor was still unfair, as the HR professional who conducted the disciplinary hearing did not take account of Mr Spoor’s long service (42 years) and exemplary record when dismissing him for physical violence.

Dismissal of pregnant employee

Do you have to reconsider a decision to dismiss an employee if you later find out she is pregnant? Ms Thompson was employed by Really Easy Car Credit, to do online telesales. She had worked there for a short time before discovering she was pregnant. During that time her performance was described as “average at best” and her employer raised various conduct issues with her. Ms Thompson took a day off sick. Unknown to her employer she went to hospital for a scan to find out whether she had miscarried.

On Ms Thompson’s return to work an incident occurred between her and a customer which led to her being spoken to by her manager. She became very upset during this meeting. Her employer decided to dismiss her on 3 August 2016 as they were tired of her “emotional volatility” and thought that her conduct and performance were not good enough. A letter was drafted that day, but it was not posted out as they decided to invite her in for a meeting. Ms Thompson was still within her probationary period.

Meanwhile Ms Thompson spoke to her manager on 4 August and told him that she was pregnant. On 5 August Ms Thompson returned to work. She was handed the prepared dismissal letter and explained the reasons for her dismissal, emphasising that it was nothing to do with her pregnancy.

Ms Thompson brought claims for unfair dismissal and pregnancy discrimination. She argued that the reason given for her dismissal was false. She said that the real reason was that she was pregnant, which her employer had found out the day before she was dismissed. The Tribunal found that the decision to dismiss was made before her employer knew of her pregnancy. The Employment Appeal Tribunal decided that there was no obligation on her employer to reverse the decision to dismiss once it discovered her pregnancy.

Ignorance of employment rights

A woman who was paid 33 pence per hour as a domestic worker and was unaware of her right to the national minimum wage has been successful in her claim for constructive unfair dismissal under the Employment Rights Act 1996. Ms Mruke was uneducated and illiterate. She was from Tanzania and spoke no English. Ms Mruke argued that her employer Ms Khan had breached her contract of employment by failing to pay her the national minimum wage.

Ms Mruke was unsuccessful at the first two stages of her claim. The employment tribunal agreed that failure to pay the national minimum wage could amount to a breach of contract by Ms Khan which would have entitled Ms Mruke to resign and claim constructive dismissal. However, the tribunal decided against her because she had been unaware of her right to be paid the national minimum wage and couldn’t show that she had resigned as a response. Ms Mruke didn’t give any reasons at all for her resignation. She did however, say that she had stayed working there for 4 years because she had no money and nowhere else to go. However, the judge thought that this was different from saying she had resigned because she was underpaid.

Sensibly the Court of Appeal disagreed and ruled that Ms Mruke had been constructively dismissed. The Court said that Ms Mruke did not have to show that she knew of her right to the minimum wage. It was important that social legislation such as the National Minimum Wage Act 1998 should be interpreted in such a way as to protect workers. Some employees could be exploited exactly because they were illiterate or uneducated. The Court ruled that there had been an egregious breach of Ms Mruke’s contract of employment given the extremely low pay. Given the circumstances it was obvious that she had resigned in response to it.

Disability discrimination – definition of cancer

Cancer is listed as a disability under the Equality Act 2010, providing sufferers protection from discrimination. Employers must also make reasonable adjustments to a cancer sufferer’s job to remove any disadvantage they suffer as a result of their cancer. The Employment Appeal Tribunal has now held that pre-cancerous lesions will also amount to a disability.

Ms Lofty suffered from a pre-cancerous lesion on her cheek which could result in a malignant melanoma. Cancerous cells had been found in the top layer of Ms Lofty’s skin and the lesion was a type of the earliest stage of skin cancer. She was absent from work for surgery and related health issues. Her employer Mr Hamis eventually dismissed her. Ms Lofty raised an employment tribunal claim for unfair dismissal and disability discrimination. However, the employment tribunal ruled that as the diagnosis was ‘pre-cancerous’ she did not suffer from cancer and was therefore not disabled under the legislation.

Ms Lofty’s appeal was successful. The Equality Act only requires an employee to show they have cancer for the legal protections to apply. The medical evidence showed that there were cancerous cells in the top layer of skin and this was enough for her to be considered disabled under the law.

Expectation to work long hours

As an employer you may require your employees to work longer hours from time to time to meet business needs. If you have a disabled employee who cannot work these hours, you may have to make reasonable adjustments under the Equality Act 2010 and allow the employee to work a shorter shift. However, do you still have that duty if there is no contractual requirement to work the longer hours and only an expectation that the employee does so?

Mr Carreras worked as an analyst for a brokerage and research firm, United First Partners Research. He initially worked very long hours from around 8am to 11pm to cover the US markets. Unfortunately, Mr Carreras was involved in a severe cycling accident and became disabled as a result. He returned to work but suffered dizziness, fatigue and headaches. He had difficulty concentrating and was unable to work the same hours as before. After about a year Mr Carreras was asked to work later in the evenings and when he agreed, an expectation developed that he would do so. Mr Carreras resigned and claimed constructive dismissal and disability discrimination.

Redundancy bumping

A redundancy arises when there is a reduction in the employer’s requirements for employees to carry out work of a particular kind. Sometimes an employee whose role is redundant can be redeployed into another role in the organisation. The occupier of that second role can be fairly dismissed instead – even though their role is not redundant. This process is known as ‘bumping’.

Bumping was discussed in a recent case involving Mr Mirab who was the sales director for Mentor Graphics (UK) Ltd. The employer no longer had a requirement for the role of sales director and made Mr Mirab redundant.

The tribunal found that the dismissal was a fair redundancy dismissal. The company had looked for alternatives to dismissal and was not required to consider bumping another employee from the more junior role of account manager because Mr Mirab had not raised this as a possibility.

However, the Employment Appeal Tribunal decided that the employee does not need to specifically raise the possibility of bumping for an employer to consider it. Conversely, an employer does not always have to consider bumping for the dismissal to be fair. Fairness will always depend on the facts of the case and whether the employer fell within the range of reasonable responses open to the employer in the circumstances.

Duty to disclose relationships

The Supreme Court has decided that a head teacher, Ms Reilly was fairly dismissed for gross misconduct, for failing to disclose to her school’s governing authority the fact that she had a close relationship with a sex offender. The teacher argued that she was under no duty to disclose the relationship. There was no clear clause in her contract requiring her to report such a relationship. She did not live with the offender, although they owned a house together as an investment. They went on holiday together. She was a named driver on his car insurance. They were not partners, but their relationship was thought to be more than a financial one.

The Supreme Court (and every tribunal and court before that) disagreed with Ms Reilly. It ruled that she was in breach of her contract by failing to report the relationship. As a head teacher with safeguarding responsibilities, she should have realised that her association with this man, posed a risk to the children in her care. She had a duty to inform the school, so that protective steps could be taken. It was not for the teacher to decide whether her relationship gave rise to a risk of harm. There were many ways in which the offender could have used his friendship with Ms Reilly to gain access to the school’s pupils.

Sandwell Metropolitan District Council and the school in question had fairly dismissed Ms Reilly. Her refusal to accept that she had been in breach of her duty suggested a continuing lack of insight making it inappropriate for her to continue to run the school.

And finally…

Scotland Yard reportedly spent more than £5,000 on disciplinary procedures after a policeman was accused of stealing a tin of biscuits. PC Hooper was accused of taking biscuits from a tin which belonged to his colleague. The policeman said that he had intended to share them and offered to replace the tin. After a three-day disciplinary hearing and 7 months on restricted duties, the panel found the officer had no case to answer.

Mr Carreras claimed that his employer failed to make reasonable adjustments for him in respect of his disability in requiring him to work the unsuitable hours. The company argued that there had been no requirement for Mr Carreras to work the long hours and so no duty to make reasonable adjustments arose.

The Court of Appeal ruled that there was a requirement to work the long hours. It didn’t matter that Mr Carreras had not been coerced or forced to work them. A strong form of request or a repeated pattern of requests could amount to a requirement which Mr Carreras felt under pressure to accept. His employer had a duty to consider reasonable adjustments as a result.

About David Parry

David graduated with a Law with French degree from Leicester and Strasbourg Universities. He qualified as a solicitor in 1989 and has specialised in employment law ever since, first at Cole & Cole (now Morgan Cole) then at Mallam Lewis & Taylor who merged with Darbys in 1999. David became a partner in 1995. Until 2013, David was the Head of the Employment Team at Darbys that became one of the best-regarded in Oxford and the Thames Valley. Contact David now

Employment law for businesses

David Parry’s approach to employment law is understanding, pragmatic and cost-effective. He helps all types of businesses to achieve the best outcomes at the right price. With decades of experience David is a highly credible and trustworthy employment lawyer. He is friendly, professional, open and honest, and will work closely with you to help overcome your legal challenges.Read more ...

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Testimonials

As the director of a small, educational charity working in Oxford, I have found David Parry’s cogent and common sense guidance to be invaluable. He has helped us immensely in dealing with a difficult case and has provided incisive advise that is sensitive to our needs and structure. His awareness of the differences between types and sizes of organisation and a clear understanding of the law has given us confidence to act. He has also helped us make sure we establish appropriate baseline practices for normal employment situations.
Stanley P Rosenberg MA, PhD, Director, CCCU-UK
WRAP has worked with David for over five years, seeking his advice on a variety of employment law matters. He is both easily approachable and accessible. We value his ability to support us in analysing the critical points of our cases and advise accordingly. David excels in providing comprehensible advice. Really important for us is his skill in ensuring we understand any risks that we face in a situation or planned course of action, whilst recognising that we have a business to run, and then advising how we can manage these two sometimes contradictory aspects together.
Eileen Anderson, Former Head of HR, Waste & Resources Action Programme
Key to David’s success and the reason that we have a great working relationship is that he understands our business models, he is prepared to get off the fence and challenge our thinking, but his priority remains the same which is to minimise risk and deliver cost-effective commercial solutions to our business.
Nick Allen, Director of People & Projects, One Event Management
David has guided us through the legal process with the sensitivity and experience that our case needed. We had not expected it to go as high as the Court of Appeal and definitely would not have been able to do that without David’s help. I would not hesitate to recommend David’s services.
Angela Fox, Personal Representative of Claimant in Fox -v- British Airways plc
Fortunately, the quality of David’s legal advice is far greater than the quality of his golf!
Alistair Booth, Executive Chairman, Frilford Heath Golf club
David has been providing us with advice and support on employment law issues for several years now. He has given us consistent, comprehensible and above all practical help across a wide range of issues, from recruitment to redundancies; from Directors' contracts to settlement agreements; and even seen us safely through a couple of tough TUPE issues. We could not envisage making key employment decisions without his advice.
Fiona Strong, Group Managing Director, The Ark-H Group
Clifton High School was looking for a personal service based on a real understanding of the ever-changing nature of employment law, the demands of independent schools and the needs of our staff. David understands us, the independent sector and of course the law. David has been immensely helpful and reassuring to us all and we look forward to his termly visits.
Guy Cowper, Director of Operations, Clifton High School
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HR Manager, Independent School, South-West England
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Fiona Morrison, Managing Director, TLA Medicolegal Limited

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