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Unfair Dismissal

Redundancy

A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week trial period if the role, place of work or other terms and conditions are different from the previous job. A statutory trial period starts at the end of the employee’s employment under their old contract or within 4 weeks of it ending. What happens if a role is deleted in a reorganisation and an employee works in another suitable role for more than four weeks – do they lose the right to a redundancy payment?

In East London NHS Trust v O’Connor, the employee was a PSI Worker who had been employed for nearly 20 years. He was told his post was going to be deleted in July 2017 and he was at risk of redundancy. He was also told that formal notice of dismissal for redundancy would follow at some point. He started a trial period as a Care Coordinator in July 2017. He did not agree with the employer that it was suitable alternative employment. He raised a grievance which was rejected. He went off sick and continued to refuse the Care Coordinator role. He was eventually dismissed with notice in December 2017. The employer refused to pay him a redundancy payment. They said he had undertaken a statutory trial period for the Care Coordinator role which had expired in August 2017. The role had been suitable alternative employment which he had refused and so he was not entitled to a redundancy payment.

The employment appeal tribunal agreed that the employee had not been given formal notice of termination in July 2017 despite his role being deleted. Deletion of a role does not necessarily amount to notice of dismissal. As a result, a statutory trial period could not have begun (because it can only start at the end of the original contract) in the Care Coordinator role. The EAT sent the case back to the employment tribunal to decide whether the employee’s dismissal in December 2017 was for redundancy and whether a redundancy payment was due.

This case highlights the complexity of the rules about suitable alternative employment and trial periods. Statutory trial periods for suitable alternative roles can only start at the end of original contract. That means that the employee must have been given notice and the notice period must have expired. Employers who fail to get their processes right might find themselves having to defend unfair dismissal claims on more grounds than just redundancy.

Astons Solicitors
22nd January 2020

 

Whistleblowing and Automatic Unfair Dismissal

A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has ‘blown the whistle’ on malpractice. The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal even though the decision maker was unaware of the protected disclosures.

In Royal Mail v Jhuti, the employee made protected disclosures about suspected breaches of Royal Mail rules and Ofcom requirements. She told her team leader who suggested her allegations could cause problems for everyone. He suggested she retract them. The team leader then raised performance issues for the first time. The employee was upset and worried about her job and so retracted the complaint. She was then subject to performance management with unrealistic targets and expectations which she said were detriments because of the protected disclosure. Another manager was appointed to consider her dismissal for poor performance. This manager was not given the details about the whistleblowing allegations. She was told that the employee accepted that it had been a misunderstanding. She dismissed the employee for poor performance.

The Supreme Court said the employee had been unfairly dismissed. If a more senior employee decides someone should be dismissed but hides the real reason in something else (such as underperformance) which the decision maker accepts, the reason for dismissal is the hidden reason. In this case, the real reason for the employee’s dismissal was the fact that she had blown the whistle, rather than poor performance.

Employers should ensure that dismissing officers ask for full details of any allegations raised by an employee, especially ones relating to whistleblowing or discrimination. This level of manipulation by managers will be rare but can be costly so care must be taken.

Astons Solicitors
21st January 2020

Constructive Dismissal – Reason for Leaving Test

In a constructive unfair dismissal claim, does the breach of contract by the employer have to be the principal reason for the employee’s resignation?

No said the EAT in Wright v North Ayrshire Council.

The Claimant was employed by the Council as a care at home assistant for just under seven years from 3 December 2003 until her resignation on 24 November 2010. She claimed that there had been a constructive dismissal. The Employment Tribunal here found that there had been breaches going to the root of the contract. Those breaches were in respect of three grievances which had not properly been answered. Two were never responded to and the third was not responded to timeously. However, the Employment Tribunal found that the Claimant’s caring responsibilities for her partner who had suffered a stroke was the “effective cause” of her resignation rather than her employer’s conduct and dismissed her claim.

The EAT found that the Employment Tribunal were wrong to have dismissed the employee’s claim for constructive dismissal on this basis. The EAT held that the repudiatory (i.e. fundamental) breach of contract does not have to be “the” effective cause for the employee resigning but “an” effective cause. In other words, it does not have to be the main reason for resigning it just needs to be one of the reasons. The Employment Tribunal will however take into account the extent of the role played by the breach when calculating the compensation award.

In the case in hand, the EAT remitted the case back to the Employment Tribunal to decide whether the employer’s repudiatory breaches (which it had found) played a part in her resignation from the service of the Council.

Written by
Edward Aston
25th November 2013

George Osborne announces plans for a new Contract of Employment

The Chancellor, George Osborne announced yesterday at the Conservative Party Conference in Birmingham his plans for a new type of employment contract. This new contract would be known as an “owner–employee” contract of employment.

Under this new contract an employee would waive their employment rights on unfair dismissal, redundancy, the right to request flexible working and time off for training. The new contract would also restrict maternity rights, requiring employees to provide 16 weeks (rather than the current 8 weeks) notice of a firm date of return to work.

In return for the surrender of these rights the company will grant the employee between £2,000 and £50,000 of shares which will be exempt from capital gains tax.

This new “owner-employee” contract is principally aimed at small companies and those anticipating fast growth but will be available to all companies no matter the size. Companies will have the option to offer this new contract to all new starters but the “owner-employee” contract will be optional for existing employees.

The Government intends for legislation to be in place later this year and that companies will be able to adopt these new contracts into their businesses by April 2013.

This radical move on employment contracts has raised a plethora of questions of how it will work in actual practice. It is also worthwhile to point out that the new contract would not prevent an employee from making any other employment law claims and in particular they would remain protected under discrimination legislation.

There are plans by the Government to consult further on this later in the month and as with all these things the devil will be in the detail.

Written by
Edward Aston
9th October 2012

Judges to sit alone in unfair dismissal hearings

The draft Employment Tribunals Act 1996 (Composition) Order 2012 has been published and is expected to come into force on 6th April 2012. This Order will enable Employment Judges to sit alone in unfair dismissal cases.

The current position is that unfair dismissal cases are heard by an Employment Judge and two lay members. The draft Order is intended to speed up the process and reduce costs in the Tribunal system. It is estimated that the cost saving will be over £3 million per year in lay members fees and other associated costs

What does 2012 have in store for UK Employment Law?

2012 looks like it will be a busy year in UK Employment Law as the Government seeks to implement the changes announced at the end of last year. These, together with several other key matters, suggests that 2012 will be a year for ringing the changes.

I have cited the most notable developments by month below

February

  • An increase in the maximum Compensatory award for unfair dismissal from £68,400 to £72,300
  • An increase in the maximum amount of a week’s pay (used to calculate statutory redundancy payments and the basic and additional awards for unfair dismissal) from £400 to £430
  • An increase in the amount of a guarantee payment payable to an employee in respect of any day, from £22.50 to £23.50

March

  • As of 8th March parental leave increases from three to four months, pursuant to the Parental Leave Directive (2010/18/EC) repealing the Parental Leave Directive (96/34/EC).

April

  • It is expected that 2 years will become the new qualifying period for unfair dismissal claims
  • Various changes are expected to be set in motion in relation to tribunal procedures including increasing deposit orders and costs awards, Employment judges to sit alone in unfair dismissal cases and witness
    statements no longer to be read aloud but taken “as read” unless ordered otherwise by the tribunal
  • Statutory maternity, paternity and adoption pay will increase from £128.37 to £135.45 per week
  • SSP will increase from £81.60 to £85.85 per week

October

It is also a possibility that the following changes will take place in 2012 but at this moment in time no deadline for implementation has been agreed:-

  • All claims to be submitted to ACAS for pre-conciliation before a claim can be issued in an Employment Tribunal
  • Introducing the concept of “Protected Conversations”, which would allow employers to raise workplace issues with employees “in an open way, free from the worry it will be used in evidence in… tribunal”.
  • Imposing financial penalties on employers who breach employees’ employment rights. The penalty will relate to the size of the award granted by the tribunal with a minimum penalty of £100 and maximum £5,000. The money would be payable to the Exchequer

Written by
Edward Aston