Employment Law

Unfair dismissal

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If an employee has contributed to their dismissal, their compensation can be reduced by anything up to 100%. This is called ‘contributory fault’. A tribunal will use its discretion to decide what deduction would be fair in any given case. In Jagex v McCambridge, the Employment Appeal Tribunal looked at whether the conduct in question must be gross misconduct in order to justify a reduction for contributory fault.

The employee found some paperwork on a communal printer which revealed the pay of a senior employee. He mentioned the document to colleagues. One of the colleagues started a guessing game over lunch about how much the senior employee earned (the employee wasn’t there). This got back to management who dismissed the employee for gross misconduct for disclosing details of a confidential document. The employee brought an unfair dismissal claim and won. The tribunal said his employment contract did not state that pay information was confidential. Disclosing this information was not an act of gross misconduct and his dismissal was unfair. They also said there could be no reduction for contributory fault because revealing the senior employee’s pay was not gross misconduct. The employer appealed.

The EAT agreed that this was not gross misconduct. However, they disagreed with the tribunal’s conclusion that a reduction for contributory fault could only be made in gross misconduct cases. The tribunal should have looked at whether it was fair in this case for a reduction to be made. The case was sent back to the employment tribunal to look at the issue afresh.

This case shows that simple misconduct, not just gross misconduct, can be taken into account by an employment tribunal when considering an employee’s compensation.

Astons Solicitors
January 16th 2020

New Employment Legislation

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In December 2019, the government set out its plans for new employment law legislation in the Queen’s Speech. Much of it will be familiar from the Good Work Plan and includes:

  • Creating a single labour market enforcement agency to protect the rights of vulnerable workers;
  • Requiring employers to pass on all tips and service charges to staff;
  • The right for workers to request a more predictable contract after 26 weeks;
  • Extending redundancy protection so that women who are pregnant or on maternity leave are protected from the point they tell their employer about their pregnancy until 6 months after they return to work;
  • Making flexible working the default position.

These changes could have a significant impact on employer practice and procedure. We will keep you informed if and when these come into law.

Astons Solicitors
January 2nd 2020

Perceived disability discrimination

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In Chief Constable of Norfolk v Coffey the EAT upheld a finding of disability discrimination by perception. It was found that if a non-disabled job applicant is rejected due to the perception that a condition may become a disability in the future then this is considered direct discrimination.

In this case the Claimant, Ms Coffey, a serving police officer for Wiltshire Police, applied for a transfer to the Norfolk Police Force. Ms Coffey had slight hearing loss. She was accepted by Wiltshire Police notwithstanding the hearing loss as she passed a hearing function test. This would have normally meant that she was disqualified from applying for a role within the force. When she applied to transfer, the Norfolk Force did not ask the Claimant to perform a function test but rejected her transfer request as her hearing was just below the acceptable standard and on the basis that her hearing may deteriorate leaving her on restricted duties. The tribunal found that this was direct discrimination based on the hypothetical perception that the Claimant would be disabled in the future.

The EAT noted that if an employer could dismiss an employee, who they wrongly perceived had a disability that may progress to the point at which it could impact their work substantially then there would be a significant gap in the protection offered by equality law.

Written by

Edward Aston
25th January 2018

Protected Conversations

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In Basra v BJSS Ltd the EAT held that, if the date of termination is in dispute, a tribunal can hear evidence about ‘protected conversations’ in an unfair dismissal case.

Under section 111A Employment Rights Act 1996 any pre-termination discussions about settlement that take place between employer and employee before termination of employment are protected and cannot normally be used by either party in an unfair dismissal claim. The EAT ruled in this case that there was an exception as there was a dispute over the date of termination.

An email was written to the Respondent by the Claimant in response to a without prejudice offer letter that had been received. The email stated “today will be the last day at BJSS”. Following this the Claimant ceased coming to work and then brought a case for unfair dismissal. BJSS refuted this and claimed that the Claimant’s employment had ended by mutual agreement or that the email was a resignation. The Claimant denied any such resignation and claimed that he had been dismissed by BJSS. The tribunal excluded BJSS’ offer letter as it was protected under s11A and it held that the s111A protection could not be waived unlike the without prejudice rule.

The EAT stated that “where there is dispute as to whether or not the contract was terminated on a particular date, the tribunal would not be in a position to say what evidence should be excluded until that dispute is terminated”. Therefore, the true termination date needs to be determined before evidence can be excluded using the s111A protection.

Written by

Lorraine Emery
23rd January 2018

Surveillance Cameras and Privacy at Work

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In Antovic and Mirkovic v Montenegro the European Court of Human Rights held that video surveillance of lecture halls violated a professor’s right to privacy.

In this case the Dean of the School of Mathematics at Montenegro University installed video surveillance within a public lecture theatre in order to “protect safety of property, people and students”. The system also recorded any lectures that took place within the theatre. The data recorded by the surveillance system was code protected, could only be accessed by the Dean and was kept for 1 year.

Article 8 of the European Convention on Human Rights protects the right to respect for private and family life. The Personal Data Protection Agency ordered for the cameras to be removed as there was no evidence that safety was a problem and so there were no legitimate grounds for needing to record such data. Ms Antovic and Mr Mirkovic brought compensation claims but Domestic courts found that Article 8 had not been violated.

However, the European Court did find that Article 8 had in fact been breached as, even though the University is a public venue, the right to a private life also includes their business and professional activities.

Whistleblowing

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In Parson v Airplus International Ltd the EAT decided that a disclosure would not be protected if the worker involved did not believe it was made in the public interest but instead made them only with her own self-interest in mind.

The Claimant, Ms Parsons, who was a qualified non-practising barrister had made a number of disclosures to her employer. Shortly after making the disclosures she was dismissed. Ms Parsons argued that the disclosures qualified for protection and therefore made her dismissal automatically unfair for whistleblowing.

However, both the tribunal and the EAT found that the disclosures had only been made in Ms Parsons’ own self-interest and although some disclosures can be found to be both in the worker’s self-interest and in the public interest and would, therefore be protected, these disclosures did not fit that category. The EAT did, however, acknowledge that the tribunal had erred when finding that a disclosure of information of which the employer was already aware could not qualify for protection, this is not the case. This finding would make no difference, however, to the unfair dismissal claim as the EAT accepted that the reason for dismissal was the Claimant’s conduct and not the making of disclosures and that the timing was purely coincidental.