Quarterly Bulletins

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News Bytes

Index

Fairness requires consistency

Mr McD worked as a heavy plant operator with a construction business. He had been with the company for over 15 years. He had once been caught smoking in his company car, but was not disciplined for it on that occasion. In June last year, Mr McD was seen smoking in his company car by a colleague, who reported him to the management. 

The company began a disciplinary process against Mr McD, who denied smoking in his car on the day in question. He alleged that the company knew that he and many of his colleagues smoked in their company vehicles, but that the company had not taken any action in the past. Mr McD was dismissed for gross misconduct. He appealed, claiming that he had been victimised because the company had not investigated his allegations about colleagues smoking in their vehicles. The company dismissed the appeal, and Mr McD brought a claim for unfair dismissal in the employment tribunal. 

Mr McD argued that his employer had unfairly escalated the manner in which it dealt with breaches of its no-smoking policy. The tribunal held that the employer genuinely and reasonably believed, on the evidence available at the time, that Mr McD was guilty of the misconduct in question, but it took into account the fact that Mr McD had smoked on numerous occasions, and had not been disciplined in respect of that conduct. This, it observed, would have led him to think that his employer was not taking the misdemeanour seriously. The tribunal held that Mr McD’s dismissal was unfair, but that he had contributed to his dismissal by 50%, thus reducing his compensation accordingly. 

Redundancy discrimination of male employee

Mr B was a property lawyer. In September 2008, the firm decided to make one property lawyer out of a pool of two redundant. On the base working date on which the scoring for redundancy selection relied, the second candidate, Mrs R, was on maternity leave; no actual score could be given for her for a particular factor as at that date, so it was decided that she should be awarded a full notional score for that factor. This decision proved crucial, as overall Mr B scored half a point less than Mrs R, and was dismissed for redundancy. 

He submitted a grievance about this decision, arguing that he had been discriminated against by the firm’s decision to award Mrs R full points for the specific factor. He suggested an alternative approach. The employer did not uphold the grievance and Mr B brought a claim for sex discrimination and unfair dismissal. 

The tribunal decision turned on its interpretation s.2 (2) of the Sex Discrimination Act 1975 (SDA), which states that an employer does not discriminate against a man where it affords a woman “special treatment” in connection with childbirth or pregnancy. The firm had relied on this provision when rejecting Mr B’s grievance. The tribunal heard evidence that the firm had expressly stated, during the grievance process, that it had awarded Mrs R full points for this factor in order to avoid a discrimination claim from her. 

The tribunal found that the meaning of s.2 (2) of the SDA is far from clear, but held that “special treatment” does not mean all treatment afforded to a woman in connection with pregnancy or childbirth. The tribunal went on to hold that the provision is not intended to protect a woman on maternity leave in a redundancy scoring exercise where she has received an unfairly inflated score. Therefore that Mr B had been discriminated against and unfairly dismissed. 

Immigration Cap

Temporary restrictions on the number of workers entering the UK from outside the European Union will be implemented swiftly ahead of more permanent restrictions in April 2011. The number of non European workers will be limited to 24,100.

UK businesses and the City have expressed concern that a cap on skilled migration to the UK at a time when the economy has shown early signs of recovery could threaten the UK’s competitive position, given that the changes will only apply to highly skilled migrants and skilled workers in certain categories of job.

Public sector pay freeze

All public-sector workers earning over £21,000 will be subject to the two-year freeze, with those earning under that level gaining only a flat rate rise of £250.

VAT will rise to 20 per cent from 4 January next year; effectively immediately is the increase in capital gains tax from 18 per cent to 28 per cent for those in the higher tax brackets.

To stimulate job creation, people setting up new businesses outside London and the south-east of England will be exempt from up to £5,000 of employer national insurance payments, for each of the first 10 employees they hire.

Tax-free personal allowances will be increased by £1,000 from next April i.e.  workers will now earn £7,475 before they start paying income tax.

Claimant not heard

Mr C was employed as a residential team leader in a care home. Following an audit in early 2007, Mr C was placed on the first stage of the employer’s capability policy. His performance failed to improve, and formal capability proceedings followed. During those proceedings, Mr C claimed that his underperformance was due to an alleged threat of physical violence against him by a former colleague; also he suffered from arthritis, which he alleged was exacerbated by the care home’s under-floor heating. The employer found these allegations, even if true, insufficient to explain his poor performance over a considerable period of time. He was dismissed on the ground of capability, and claimed unfair dismissal. 

At the tribunal hearing, Mr C failed to challenge the employer’s case properly in cross-examination, merely repeating his allegation about a threat of violence against him, and pointing to his underlying medical conditions. The tribunal found that it could not conclude on the evidence before it that the decisions that the employer’s decisions were irrational, and therefore could not conclude that the dismissal was unreasonable. Although the power to stop a case in progress had to be exercised with caution, case law allowed that it may be a “complete waste of time” to allow the other party to give evidence in a hopeless case. Rare as it was to do so, the tribunal dismissed Mr C’s case before he was allowed to give evidence.

Loss of cleaning contract: no TUPE transfer

Ms Barlow was employed by Trafford Park Cleaning Company Ltd (Trafford). By 2009, she was working 30 hours per week, a third of her time on one particular contract. In May 2009 that particular contract was lost to Associated Cleaning Services (ACS), and that her employment would transfer from June 2009. Ms Barlow declined the offer of employment from ACS and claimed unfair dismissal. The tribunal found that there was no TUPE transfer. The tribunal’s reasons were that:

• only one-third of Ms Barlow’s working time was spent on the contract in question;
• Ms Barlow had only worked on the contract for two years, having been employed since 2000;
• Trafford could assign Ms Barlow to any contract it wished;
• within six weeks of losing the cleaning contract, Trafford had given Ms Barlow work to replace it. 

Sick pay and suspension

Mr Hemming was employed as an IT network manager. In May 2009, he began long-term sick leave, from which he did not return. In the staff handbook, he was entitled to 30 days' sick leave at full pay, and statutory sick pay for the remainder. In August 2009, the Cambridge Centre suspended Mr Hemming pending a disciplinary investigation and Mr Hemming was ultimately dismissed in January 2010. 

He brought a claim for unlawful deductions from wages, relying on a provision in the staff handbook that stated that, in connection with disciplinary investigations, the Cambridge Centre “reserves the right to suspend the employee immediately with pay while the matter is investigated”. Mr Hemming contended that this clause meant that he should have received full pay during the period of his suspension, even thought he was on sick leave at the time. The tribunal disagreed, holding that Mr Hemming had no right to receive more than whatever pay he was entitled to at the time of his suspension, which at that point was statutory sick pay only. There was no deduction from Mr Hemming’s wages, unauthorised or otherwise, and his claim failed.

Holiday pay accrued during sickness absence

Mrs Southard went on sick leave from July 2008 until the termination of her employment in August 2009. On termination, she had 35 days’ accrued but untaken contractual holiday, 18 days of which was statutory holiday entitlement. Mrs Southard brought a claim for unlawful deductions from her wages. 

The tribunal held that Mrs Southard’s contractual arguments failed, as the relevant contractual provisions were silent on the key issue of whether or not it was possible for an employee on long-term sickness absence to take annual leave. The tribunal upheld Mrs Southard’s claim under the Working Time Regulations. The tribunal found that it is not necessary for workers to actually take (or even to seek to take) their statutory holiday entitlement in order to be able to claim pay for it. The tribunal therefore ordered that the employer pay Mrs Southard for her 18 days’ untaken statutory holiday entitlement. 

Waiting for outcome of criminal proceedings

Mr Donaghey worked at Jobcentre Plus. Following a back injury at work, he was awarded disability living allowance for an indefinite period. After an anonymous complaint in 2007 and subsequent investigation, the fraud department informed Mr Donaghey that he hadn’t been entitled to his allowance from October 2006. The employer considered whether to proceed with its disciplinary process or await the result of the prosecution. It went ahead and ultimately dismissed Mr Donaghey for misconduct amounting to a breach of the duty of mutual trust and confidence. Mr Donaghey claimed unfair dismissal. 

The tribunal found that Jobcentre Plus had carried out a proper investigation, and had considered the evidence in deciding to dismiss; the employer had identified the difference between arriving at a decision on the balance of probability as against the criminal standard of reasonable doubt. Moreover, the disciplinary policy explicitly provides “claiming benefit to which the employee is not entitled” as an example of gross misconduct. The tribunal held that Mr Donaghey had been fairly dismissed. 

NB The Court of Appeal has since held that employers have a wide discretion to postpone disciplinary investigations pending criminal trials.

Foreign national interns – new immigration rules

Employers can now hire interns under the scheme to work in the UK for up to one year each. The scheme is administered under Tier 5 of the UK Border Agency Points Based System; an employer does not need a sponsorship licence to be eligible to apply for the scheme.

Basic requirements include the following:

1. The intern must hold or be studying for a degree that is recognised as equivalent to at least a UK bachelor's degree
2. The internship role must be skilled
3. The internship role must be additional to the employer's normal staffing needs

The employer applies to join the scheme, applies for each intern to register under the scheme and each intern applies for an overseas visa application.