January 28, 2022

employees returning to workplace

We have covered some important tribunal cases in this month’s newsletter, that all employers should be aware of.  As always, we will be happy to discuss these or any other HR or employment issue that you may have by calling 01292 676063.

1. Can a warning which is expired be taken into account?

The position is far from clear, and the law is a bit of a mess here.

Two cases illustrate the sort of fine distinction which enters the picture.

In Diosynth Ltd v Thomson [2006] IRLR 284, Mr Thomson was given a 12-month warning for failing to carry out a safety process. A few months after the expiry of that warning there was a fatal explosion. An inquiry found that Mr Thomson and several of his colleagues had failed to carry out that same process. Mr Thomson was dismissed, Diosynth making it clear that but for the previous warning he would not have been dismissed. On appeal in Scotland, the Inner House of the Court of Session held that the employer acted unreasonably in considering an expired written warning when deciding a subsequent disciplinary outcome.

So that seemed to make matters clear. But then the Court of Appeal considered the case of Mr Webb (Airbus Ltd v Webb [2008] EWCA Civ 49). He had been given a final 12-month written warning. He had been told that further misconduct was likely to lead to dismissal. Three weeks after expiry of that warning, he was disciplined with four colleagues for being away from the workplace when they were supposed to be working.

All were found guilty of gross misconduct. But only Mr Webb was dismissed. His colleagues, who had no prior disciplinary record, were given final warnings. The Court of Appeal decided that the difference in treatment was reasonable, and so the dismissal was fair, because of the existence of Mr Webb’s previous – but expired – final warning.

So how do we reconcile these apparently contradictory cases?

The Court of Appeal reasoned that the circumstances in Diosynth were different. In that case, the offence committed would not have justified dismissal without a live warning.

In Airbus, by contrast, the employee’s misconduct on its own was the principal reason for the dismissal. In the circumstances, it was not unreasonable for the employer to have considered the previous misconduct which had been the subject of an expired warning.

To put it another way, it is not permissible to use expired warnings to turn the current misconduct into a dismissible offence. That is what Diosynth tells us.

But where the offence is one which in any event might warrant dismissal, then the employer can take the expired warning into account when deciding on the sanction. That is what Airbus tells us.

After thinking about that distinction, you might decide two things:-

(1) it’s rubbish, and doesn’t make much sense; and,
(2) the sensible course of action is to ignore the expired warning.

Talking about matters which you may care to avoid, it is always unwise to say in a dismissal letter that “we have no option but to dismiss you” (or words to that effect), even in gross misconduct cases. There are always options (such as final warnings), and the employer is choosing to dismiss because it thinks that a warning is inadequate. If an employer uses the phrase: ‘We have no option but to dismiss you’, a tribunal might think it has closed its mind to alternatives.

In Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626 the Employment Appeal Tribunal said that although dismissal for gross misconduct will nearly always fall within the range of reasonable responses, in fact there may be mitigating factors which suggest that dismissal is not in fact a reasonable response. This might include, for example, whether the employee has a long unblemished record, and the consequences of the dismissal for the employee. So employers should make sure in any dismissal letter they set out any mitigation factors and explain why the employer thought them insufficient to avoid a dismissal. If an employer can’t explain that at the time, it’s going to struggle to explain it 18 months later at a tribunal hearing.


2. Implied Term that Disciplinary Process will be Conducted Fairly

In Burn v Alder Hay Childrens’ NHS Hospital, the Court of Appeal construed a disciplinary policy.

That’s not very interesting. But what was interesting were some obitercomments made by Singh LJ and Underhill LJ, two of the Court of Appeal’s four specialist employment judges.
In separate judgments, they both indicated tentative support for implying a term into employment contracts that disciplinary processes should be conducted fairly (see paras. 42, and 47-48). This would be a spin-off to the implied term of trust and confidence, although it is not clear how much further it would take matters or how it would interact with the Johnson exclusion zone (the principle that the implied term of trust & confidence doesn’t apply to the decision to dismiss). However, they were careful to make clear that they were not deciding the point; it merely paves the way for the point to be argued in another case.


3. Unfair Dismissal

Case 1

Was it unfair to dismiss an employee for controversial remarks about Zionism when he was not given the opportunity to respond to the specific allegation relied upon in the disciplinary hearing?  Yes, held the EAT in London Borough of Hammersmith and Fulham v Keable, dismissing the employer's appeal.

The Claimant was a long-serving Council employee in 'non-politically restricted' post. He had gone on a demonstration in his own time outside Parliament, and briefly exchanged words with a counterdemonstrator about Zionism and the Havaara Agreement (relating to 1930s Germany and Jewish emigration to Palestine). This discussion was filmed and was subsequently amplified on social media without the Claimant's knowledge or consent, with an MP getting involved. This led to him being identified as a Council employee. The outcome was a disciplinary investigation resulting in the Claimant's dismissal for 'serious misconduct'.

The tribunal held that the dismissal was unfair, the dismissing manager had failed to give the Claimant the opportunity to comment on the actual basis he relied upon for dismissal (what the average person would think of his remarks), which had not been part of the investigation, and failed to give him an opportunity to comment on a warning as an alternative to dismissal.

The EAT held that the tribunal was entitled to find this fell outside the band of reasonable responses. Whilst the tribunal should have raised with the parties and invited submissions on a case it referred to in its decision, failing to do so did not, on the facts, invalidate the decision.

The tribunal made a re-instatement order, the EAT held it was entitled to do so, noting that in conduct cases, re-instatement can be ordered even if the dismissing manager genuinely believed misconduct had occurred; a conduct dismissal does not automatically mean that re-instatement is impracticable.

Case 2

Mr Stone raised a grievance about his level of pay. Following a meeting with management he was summarily dismissed.

The appellant brought a claim for unfair dismissal under s104 Employment Rights Act 1996. Despite the employer's assertions that Stone was not dismissed but had resigned, the employment judge found that the appellant had been dismissed.

However, the employment judge decided that he had not asserted a statutory right (namely the right not to suffer unauthorised deductions from pay) and that the principal reason for his dismissal was not such an assertion but was related to the availability of work and was the withdrawal of a concession to provide him with alternative work and was therefore redundancy or some other substantial reason.

The EAT considered that, on all the evidence, the finding that the appellant had not asserted a statutory right was perverse and substituted a finding to the contrary. The finding as to the reason for dismissal involved an error of law in that the employment judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, so as to allow them to make submissions.


4. Worker Status

Did the tribunal err in concluding that a London black-cab driver was in business on his own account and not a 'worker' when he was engaged via the Respondent's 'Mytaxi' App?  No, held the EAT in Johnson v Transopco Ltd.

The Claimant had used the Respondent's 'Mytaxi' app to source passengers, whilst still sourcing rides as a self-employed taxi driver. He could reject jobs offered through the app without penalty and ply his own trade instead and could reject 'scrub' bookings already made without penalty in certain circumstances. The Claimant brought various claims after the relationship ended. For these claims, he had to be at least a 'worker' (as defined in s230(3) Employment Rights Act 1996). At a preliminary hearing, his claims were dismissed as the tribunal found that the Claimant was in business on his own account, with the Respondent being his 'client or customer'.

The EAT rejected various grounds of appeal. The tribunal was entitled to conclude that the Claimant and Respondent contracted with each other as two independent businesses, so the Respondent was a customer of the Claimant's business. The difference in size between the two businesses was not material. The Respondent was not acting as an 'agent' sourcing passengers for the Claimant. Passengers booking rides with the Respondent via the app had a separate contract with the Respondent, whilst the Claimant and Respondent had their own contract. The case is a useful reminder that 'status' cases turn on their own facts and gives helpful pointers to 'driver' cases.


5. Vicarious Liability

Can an employer be held vicariously liable for the actions of its employees when engaging in horseplay?

Possibly, but not on the facts of this case, held the Court of Appeal in Chell v Tarmac Cement And Lime Ltd.

The Claimant was employed by Roltec Engineering Ltd as a Site Fitter. He worked at a site that was operated and controlled by Tarmac Cement and Lime Ltd. There were tensions between Roltec and Tarmac fitters. A fitter, employed by Tarmac used a hammer to strike a target which he had placed on a bench close to the Claimant's ear causing him to sustain hearing loss and tinnitus.

The Claimant argued that Tarmac was vicariously liable for the actions of their fitter and was liable for negligence for breaching its duty to prevent a foreseeable risk of injury.

The Court of Appeal dismissed the claims. In so doing, it had regard to the principles laid down in Lister v Hesley Hall Ltd and Muhamud v WM Morrisons Supermarket PLC. Whilst accepting that horseplay, ill-discipline, and malice could be a mechanism for causing a reasonably foreseeable risk of injury, that was not made out on the facts in this case.

The fundamental question remains whether the wrongful act is sufficiently related to the conduct authorised by the employer to justify the imposition of vicarious liability.


6. Grievances and Dismissal

Was a dismissal for gross misconduct relating to the raising of vexatious grievances which the Claimant refused to either pursue or withdraw, fair?  Yes, held the EAT in Hope v British Medical Association.

The Claimant brought numerous grievances against senior managers. The grievances could not be resolved at an informal stage in part because the Claimant wished to discuss his grievances with his line manager who had no authority to resolve issues.

The Claimant refused to progress his grievances to the formal stage or withdraw his grievances. He refused to attend a grievance hearing, which proceeded in his absence. The grievances were not upheld. The Respondent concluded that the Claimant's conduct throughout the process was frivolous and vexatious. Further, the Claimant's repeated instigation of the grievance process without following through amounted to an abuse of process.

The Respondent ultimately dismissed the Claimant for gross misconduct.

The tribunal held that the dismissal was fair. The Claimant appealed on the basis that the tribunal had failed to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense.

The EAT dismissed the appeal. The real question is the statutory one of whether the employer acted reasonably in all the circumstances in treating the conduct as sufficient reason to dismiss. Whether an employee is in breach of contractual obligations is a potentially relevant consideration, but it is merely one of the circumstances to be taken into account in considering whether the dismissal was fair or unfair within the meaning of s98(4) Employment Rights Act 1996.


7. Protected Disclosures

In claims for detriments for making protected disclosures, should a tribunal consider if any disclosure was a material factor in the detrimental treatment, rather than the cause of it?

Yes, held the EAT in Fitzmaurice v Luton Irish Forum.

The Claimant was a caseworker at a small charity, who resigned and claimed whistleblowing detriments and constructive dismissal after facing disciplinary action. The tribunal held that disciplinary proceedings were brought for three reasons, only one of which was related to protected disclosures, and that protected disclosures were not the cause of disciplinary action and dismissed the detriment claims.

The EAT upheld the Claimant's appeal. The tribunal had not properly directed itself on the dividing line between the making of protected disclosures, and the manner in which the disclosures were made. It was sufficient that a protected disclosure was a material factor in a detriment, it need not be the cause of it. The test to consider is whether factors other than making a protected disclosure (here the Claimant's conduct) were properly severable from the making of protected disclosure in the motivation for disciplinary action. The EAT remitted the case to the ET to reconsider the claims.

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