Expired warnings can be
taken into account when deciding whether to
dismiss
The
Court of Appeal has recently overturned the
tribunal decision (upheld by the Employment Appeal
Tribunal (EAT)) in Airbus UK v Webb,
reported in our update last year, and has
confirmed that the tribunal was wrong to find that
because the employer had taken into account an
expired warning when making its decision to
dismiss, it followed that the employee was
unfairly dismissed. The Court held that the
earlier Scottish case relied on by the tribunal in
relation to this point, Diosynth Ltd v
Thomson, was not authority for the broad
proposition that a previous spent warning should
be ignored for all purposes.
The
central question to be determined, under section
98(4) of the Employment Rights Act 1996 (which is
the applicable law in relation to whether it is
fair or unfair to dismiss an employee for
misconduct) is whether, in the circumstances, the
employer acted reasonably or unreasonably in
treating the reason as a sufficient reason for
dismissing the employee. This is determined in
accordance with equity and the substantial merits
of the case.
The
Court held that there is nothing in the wide
wording of the provisions laying down a rule that
the circumstances of the employee's previous
misconduct must be ignored by the employer if the
time limited final warning had expired at the date
of the subsequent misconduct, which was the reason
or principal reason for the dismissal. The fact of
the previous misconduct, the fact of the final
warning, and the fact that the warning had expired
at the date of the later misconduct would all be
objective circumstances relevant to whether the
employer had acted reasonably or unreasonably and
to the equity and merits of the case.
The
Court of Appeal also stated that the
Diosynth case could be distinguished from
this case. In Diosynth, but for the
previous warning, the employer would not have
shown a reason for dismissing the employee. In
this case, however, the reason for the dismissal
was that the employee was guilty of gross
misconduct, not that he had received a warning for
his previous conduct.
By
overturning the decisions of the tribunal and EAT,
the Court of Appeal has clarified that whilst it
will remain unreasonable for an employer to rely
on expired warnings as the principal reason for
dismissal, it will not be unreasonable for an
employer to take into account a previous expired
warning and the underlying misconduct where they
are not the principal reason for the
dismissal. Whilst this decision will
undoubtedly be welcomed by employers, it was also
noted by the Court of Appeal that the decision
should not encourage reliance on expired warnings
as a matter of course. Caution should therefore be
exercised in these circumstances.
Dismissal not connected to
paternity leave
A
recent decision of the EAT has shed some light on
the statutory right to paternity leave, an area
which, to date, has rarely reached the tribunals.
Upholding the tribunal's decision, the EAT
confirmed that the dismissal of an employee was
not due to him being on paternity leave. His
dismissal was therefore not automatically unfair
and the tribunal had applied the law
correctly.
In
Atkins v Coyle Personnel plc, Mr Atkin's
line manager had agreed that he could take a
week's paid leave for paternity leave on the
condition that he remained contactable at home.
The senior manager was not aware of this
arrangement but it was subsequently confirmed to
him by Mr Atkins, who advised the senior manager
that he would always be contactable at home by
landline or mobile.
While
Mr Atkins was on paternity leave, the senior
manager called him about a client query. Mr Atkins
was asleep, having had a bad night with the baby.
The senior manager left a message but when he
realised that the matter could affect his
commission, he asked a colleague to call Mr Atkins
to explain the urgency. This led to Mr Atkins
sending an email stating that he had had enough
and had been pushed too far. A heated telephone
conversation ensued and matters escalated,
culminating in the senior manager telling Mr
Atkins "you're f***ing sacked". Mr Atkins
claimed automatic unfair dismissal.
The
tribunal noted that although the dismissal took
place when Mr Atkins was on paternity leave, the
question for the tribunal was whether or not the
reason or principal reason for that dismissal was
connected with the fact that he took paternity
leave. The EAT confirmed that this question was
properly posed and was the correct approach. The
senior manager was frustrated and annoyed by Mr
Atkin's response when he was seeking to do him a
good turn in relation to his commission and, as a
consequence, in the course of the heated argument,
lost his temper and dismissed him. On the face of
it, such frustration and annoyance and the
response could have arisen irrespective of Mr
Atkin's being on paternity leave.
Interestingly,
the EAT also expressed some "brief and tentative
views" on the issue of whether the appropriate
test under the Employment Rights Act 1996 and the
Paternity and Adoption Leave Regulations is a
causal test or some less stringent text (this
argument had not been put before the tribunal and
there were no exceptional circumstances which
could justify the new point being considered on
appeal). The EAT suggested that:
-
a
tribunal first has to ascertain on the facts
what the reason or principal reason for
dismissal was and then ascertain whether such
reason was connected with the fact that the
employee took or sought to take paternity leave.
A time connection alone is not enough as
otherwise nobody could be fairly dismissed even
if gross misconduct occurred during paternity
leave or was discovered during such leave.
-
although
"connected with" might on the dictionary
definition be taken to mean "associated with",
this does not mean that a causal connection is
not necessary between the dismissal and the
paternity leave. "Associated with",
without more, is a very vague
concept.
-
the
legislation must be given a wide, purposive
interpretation and the application of the test
must be approached in a pragmatic commonsense
fashion on the facts of the individual
case.
Protection from Harassment
Act - bad-tempered conduct does not constitute
harassment
The
Court of Appeal has recently overturned a decision
of the county court in a claim brought under the
Protection from Harassment Act 1997 (the Act),
which provides that a person must not pursue a
course of conduct which amounts to harassment of
another and which he knows or ought to know
amounts to harassment of the other.
In
Conn v Sunderland City Council, the Court
of Appeal held that the county court was wrong to
hold that the conduct of a site foreman amounted
to harassment of an employee. The two incidents
which were considered by the county court to
amount to a course of conduct under the Act were
examined by the Court of Appeal. The Court
initially noted that, following the decision of
the House of Lords in Majrowski v Guy's and St
Thomas' NHS Trust, what crosses the boundary
between unattractive and even unreasonable conduct
and conduct which is oppressive and unacceptable,
may well depend on the context in which the
conduct occurs. What might not be harassment on
the factory floor or in the barrack room might
well be harassment in the hospital ward and vice
versa. The touchstone for recognising harassment
under the Act will be whether the conduct is of
such gravity as to justify the sanctions of
criminal law.
It
was accepted that the second of the two incidents
did cross the line to oppressive and unacceptable
conduct. This involved the site foreman becoming
angry and aggressive with the employee and
threatening him with violence. The first incident,
however, was not considered to have crossed the
boundary into conduct which can be said to be
unlawful. This incident involved the site foreman
demanding to know of the employee and others who
was leaving work early and threatening to smash
the cabin windows with his fist. Whilst this
incident was no doubt an unpleasant one for the
employee, no physical threat was made; it solely
referred to property. The remarks were also
addressed to three people and the county court had
found that neither of the employee's two work
colleagues who were present were troubled by them.
In
a decision which helpfully elaborates on the scope
of the conduct covered by the Act, the Court of
Appeal stated that this is the sort of
bad-tempered conduct which, although unpleasant,
comes well below the line of that which justifies
criminal sanction under the Act.
New fines for illegal
working from 29 February 2008
From
29 February 2008, a new system of penalties will
come into force applying to employers who employ
adults subject to immigration control in breach of
the terms of entry or stay.
The
penalties comprise a criminal penalty which will
be triggered against those who knowingly employ
illegal migrant workers and a civil penalty
relating to negligent recruitment practice.
Employers who knowingly hire illegal workers risk
an unlimited fine and/or a prison sentence. Those
who negligently hire illegal workers will face a
civil penalty fine of up to £10,000 for each
offence.
Increase in rates of
statutory sick pay and statutory maternity,
paternity and adoption pay
The
following statutory payments are due to increase
and will take effect from 6 April 2008:
-
the
flat rates of statutory maternity, paternity and
adoption pay will increase from £112.75 per week
to £117.18
-
the
flat rate of statutory sick pay will increase
from £72.55 per week to £75.40
MPs vote in favour of
rights for temporary and agency workers
The
Temporary and Agency Workers (Equal Treatment)
Bill had its second reading in the House of
Commons today, with MPs voting overwhelmingly in
favour of the proposals to apply the principle of
equal treatment to temporary and agency workers.
The private members' bill will now be considered
by a House of Commons Committee.
The
TUC have welcomed the development, commenting that
"this is good news for agency workers as it is an
important milestone on the road to achieving fair
treatment." The CBI, however, has commented that
vulnerable workers would not benefit from the bill
and 250,000 jobs would be put at risk.
The
government has refused to back the bill. Last
week, Gordon Brown offered to set up an
independent commission to consider the rights of
temporary and agency workers and bring the TUC and
CBI together to consider how such workers could be
given pay and conditions which are comparable to
permanent workers. It is also intended that the
commission would arbitrate on contested issues
surrounding agency workers and would set out a
process for identifying those full-time workers
with whom an agency worker could compare wages and
conditions.
"Well note"
culture?
Attracting
significant publicity this week, Alan Johnson, the
Health Secretary, has called for all employers to
do more to promote the health and well-being of
their staff, moving the debate on from work-life
balance to "work-health" balance.
Johnson
has set out key steps which both employers and the
government must take. These include:
-
employers
needing to take steps to promote health and
wellbeing in the workplace
-
government
and employers working together to improve how
potential health risks are identified and
addressed, in particular around stress and
mental health
-
the
government doing more to help those who have
become inactive but are able to work to find
their way back into the workplace
Hitting
most of the headlines has been Johnson's
controversial aim to tackle incapacity benefits
and to explore how GPs can help to change our sick
note culture into a "well note" culture,
potentially offering fitness to work advice to
patients and employers. The Chartered
Institute of Personnel and Development (CIPD) has
welcomed the proposed changes, stating that "all
the evidence shows that a phased return to work
can play a beneficial role in the recovery of
people suffering with this kind of illness. Work
has a huge part to play in the early treatment and
rehabilitation of people experiencing mental ill
health. Employers are willing to do their bit, but
they need support and better communication from
GPs to facilitate appropriately phased returns to
work".
Time to go
home!
It
may be Work your Proper Hours Day today, but
figures released this week by the Chartered
Management Institute suggest that, like many
employees, UK managers are putting in too many
hours, for too few returns.
Based
on the views of 1,511 managers, the report
indicates that efforts to reduce working hours in
recent years have failed to have a positive
impact. Some of the key findings of the
study include:
-
89%
of managers regularly work over their contracted
hours
-
the
average manager works 1 hour 18 minutes over
contract each day - equivalent to roughly 40
days per year, or 184 million days each year for
the UK's management population
-
only
1 in 3 work excess hours by choice. Most
(54%) do so to meet deadlines or because of the
volume of work they face
-
45%
believe that the UK's long hours culture affects
their productivity and 40% argue that working
excessively hits
morale