Long Term Sickness & Holiday Carried Forward

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Category: HR Alerts

The Employment Appeal Tribunal (EAT) has held that employees do not have to demonstrate that they were unable to take holiday due to a medical condition whilst on sick leave for it to be carried over. UK case law had already decided that employees who are off sick are entitled to carry forward holiday. However, there was no ruling on how long the right to carry forward is limited to.

The employee, Mr Plumb, was absent on sick leave following an accident at work for the period from April 2010 until his employment terminated in February 2014. The employer’s leave year ran from 1 February to 31 January. Mr Plumb took no annual leave for the 2010-11, 2011-12 and 2012-13 leave years. In July 2013 Mr Plumb requested to take the leave he had accrued during his absence. The employer agreed to pay his annual leave entitlement for the current holiday year (2013-14), but refused to pay for any of the previous years’ holiday entitlement.

Following the termination of his employment, Mr Plumb brought a claim for a payment in lieu of his accrued statutory holiday entitlement under the Working Time Regulations. The employment tribunal dismissed the claim because he was unable to show that his medical condition was the reason he did not take his leave.

The EAT upheld his appeal saying that the employment tribunal was wrong to conclude that an employee was required to demonstrate that he was unable, by reason of his medical condition, to take annual leave during the period he was on sick leave. Such a position would not be consistent with the underlying purpose of annual leave (rest and relaxation and for reasons of health and safety).

Peter Stanway, our BackupHR™ legal expert comments:

They looked at two issues relating the much vexed issue of sickness absence and holiday leave:

1. Does an employee have to prove they were prevented from taking their holiday due to their illness?; and

2. How long can leave be carried forward for before it is lost?
The second point has been of particular interest to employers facing large holiday pay bills for long term sick employees.

On the first point the EAT decided that:

  • An employee who is absent from work on sick leave is not required to demonstrate that he or she is physically unable to take annual leave by reason of his or her medical condition. – In this case, since there was nothing to suggest that the claimant sought to take annual leave while he was on sick leave, it had to be inferred that he did not wish to do so and so he was entitled to carry it over.

On the second point they said:

  • Since the European case law indicates that the Directive requires at most 18 months of carry-over in such circumstances, that limit should be read into UK law.
  • Therefore the Working Time Regulations in the UK need only be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued where he or she was unable or unwilling to take annual leave because of sickness.

It should be noted that it applies to the carry forward of the basic statutory holiday entitlement (4 weeks) only, not to the additional 1.6 weeks’ holiday under the WTR nor to any contractual holiday entitlement.

The EAT has granted the parties permission to appeal to the Court of Appeal, so it is unlikely that this is the last word we will hear on the issue of carry over. However, the EAT has provided certainty to both employers and employees in this area, which is to be welcomed.

As the issues tend to arise most when dismissing long term sick employees the following points are pertinent:

  • Do not allow long term sickness to drag on for years.
  • Keep in contact from month one and get good medical advice.
  • Make a decision as soon as you can but subject to medical reports, consultation and reasonable adjustments.
  • Pay them for all outstanding holiday subject to a limitation of 20 days per year inclusive of public holidays.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

‘Research suggests’ that over politeness in the workplace could be detrimental to UK businesses. The research conducted by an online expenses management provider, claims that a staggering 78% of office-based business managers say that being too polite could be costing their organisation money. The top reasons given by respondents as to why they hadn’t challenged wrongdoing in the workplace were due to managers not wanting to upset anyone (20%); not feeling comfortable having difficult conversations with employees (20%); and not wanting to appear rude (17%) – all of these allegedly symptomatic of over-politeness in the workplace.

Peter Stanway, our BackupHR™ legal expert comments:

I would dispute these ‘findings’, as only the 17% who cite fear of being thought rude, might be acting in an ‘over-polite’ manner. Some of this may be traditional British reserve.

We are aware that a regular criticism of HR professionals is that they are too cautious and low risk when dealing with concerns about suspect behaviour, and won’t call a spade a spade, and tell an employee they appear to have done something wrong. Of course you have to be sensitive and keep an open mind, but if you think someone is committing a fraud, tell them what it looks like, don’t hide behind euphemism like ‘ breach of our procedures’ (if you have them).

The real issue is not the legal excuse, but fear of causing offence and the reaction to it, i.e. dealing with conflict. Everyone will, at some point, have issues or concerns with someone else at work; often this will manifest itself in negative behaviours such as blaming, personal attacks, aggression and focussing on the past. Such a culture can result in high absence level and labour turnover as well as poor productivity and stress. The CBI estimates that conflict in the workplace costs UK business £33 billion per year, taking up 20% of leadership time, and potentially losing up to 370m working days.

Conflict is inevitable yet can be a positive force when there are differences in opinion, if it is channelled correctly and used to problem solve. The important thing for employers is to have a range of means of dealing with conflict, whether they are informal or formal such as grievance procedures or mediation.

All good employers use a logical, principled structure to resolve conflict, whether it be formal or informal. The good news is, it is a process which can be taught and with practice gets easier, both on a skill and a confidence level. However, it is important to address conflict quickly, focussing on the problem whilst being open to solutions. Avoiding conflict is only a good approach when the issue is unimportant. Issues like suspected fraud, or failing to follow procedures, are not unimportant, and need to be addressed confidently and assertively, in an appropriate manner.

Learning points:

  • The old saying that ‘manners cost nothing’ is true
  • It is not impolite to ask questions over matters of concern
  • It is best to be clear about your concerns to avoid ‘misunderstanding’
  • Suspected rule breaking may be dealt with informally, but you should not be afraid to use your disciplinary procedure
  • Treating everyone with dignity and being assertive are important soft skills
  • Handling conflict is a key skill for organisational success

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Ministers have defended plans to tighten the rules on strike ballots after unions said they would make legal strikes “almost impossible”. Under current rules all that is needed for a strike is a simple majority of those that take part in a ballot. The Trade Union Bill would impose a minimum 50% turnout – and public sector strikes would need the backing of at least 40% of those eligible to vote. This is in addition to a simple majority vote in the ballot itself.

The proposals will be controversial, so expect a battle for the Government ahead. In summary, the other proposed reforms are:

  • Maximum 4 month mandate for the ballot, during which time any industrial action must take place, together with a requirement for the ballot paper to contain clear descriptions of the dispute and planned industrial action – making it difficult for unions holding one ballot to authorise a series of strikes.
  • Employers must be given a minimum of two weeks’ notice before industrial action starts.
  • A requirement for a clear description of the dispute and proposed industrial action to appear on the ballot paper.
  • Picket lines to be further regulated; but proposals to ban picket lines of more than six people appear to have been dropped. It would be an offence not to have a named individual supervising a picket line.
  • The legislation includes efforts to tackle “intimidation” of non-striking workers.
  • Explicit approval from union members to pay into political funds will be needed.
  • A review of public funded trade union subsidies.
  • A possible repeal of the current ban on employers from hiring agency workers to cover the duties of those on strike.

Peter Stanway, our BackupHR™ legal expert comments:

These are some of the most sweeping and radical union reforms since the 1980s. The unions fear it will make effective industrial action almost impossible – and say it’s unnecessary as the level of strikes is almost at its lowest ever. It has been described as a sledgehammer to crack a nut that does not exist.

For employers with unionised workforces, the new balloting requirements will obviously make lawful industrial action less likely, and the new picketing restrictions will assist employers to encourage employees to come to work even if industrial action is called. But will unlawful/wildcat industrial action increase and is it all about trying to prevent a few high profile excesses?

While many of the reforms will be welcomed by employers, unsurprisingly union leaders have reacted with anger. The unions are already hinting that if the law (in their view) makes lawful industrial action too difficult, they may simply ignore it. There have been accusations from unions and the Labour Party that this is all partisan politics designed to nobble them.

Some of these changes are likely to be challenged under the Human Rights Act and the European Convention on Human Rights. It is possible that some of the provisions will be watered down before the Bill is passed by Parliament. As yet there is no indication of when the reforms are likely to take effect.

For most of our clients this is all an irrelevance as very few are unionised or ever likely to experience strike action directly. For them and others in order to avoid such conflict which a sign of poor employee relations we would advocate:

  • Communicate well and regularly with your workforce.
  • Build trust and confidence based on mutual respect.
  • Use your employees to help boost productivity.
  • Focus on what is right rather than what you can get away with.
  • Educate your workforce about the market you work in and how they can impact on your business success.
  • Reward your people as well as you can afford to build engagement and retain a happy, well-motivated workforce.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

We hear of football managers and politicians who offer their resignations but have them refused (sometimes). First it was Nigel Farage resigning and then ‘un-resigning’, next it was Sepp Blatter resigning just after being re-elected, but he is still there and very much active. He is now claiming “I did not resign. I put myself and my office in the hands of the Fifa congress.”

Peter Stanway, our BackupHR™ legal expert comments:

Does this bear any relation to ‘normal’ employment resignations? The simple answer is No; not least because employers cannot refuse an employee’s resignation. It is a common myth that an employer can choose to accept or reject a resignation, I suspect because of hearing about football managers and other high profile people.

Either party has the right to bring the employment relationship to an end, but it is not possible to reject a resignation provided the employee has given proper notice to their employer. In most cases, the employment contract will set out what constitutes proper notice, in terms of the amount of notice to be given by the employee, or any particular procedure to be followed. If the employment contract is silent as on the amount of notice to be given, it is an implied term that employees must give ‘reasonable notice’ to their employer, which will always be at least one week.

Employers often have rights under the contract of employment when an employee resigns, such as putting them on garden leave; or paying them in lieu of notice so that their employment terminates earlier; but you cannot reject the resignation if notice has been given properly.

Problems often arise when an employee seeks to retract their notice, but once proper notice is given, it is effective and can only be withdrawn if the employer agrees. There is absolutely no obligation for an employer to agree to the withdrawal.

The exception to this rule concerns cases where the employee resigns ‘in the heat of the moment’, for example, when during an argument they say something in anger or when under excessive pressure. In such cases, employers are expected to give the employee a reasonable period of time (maybe a couple of days) to calm down and reconsider whether they want to go ahead with the resignation. Failing to do so and treating the employee as having resigned, could result in a finding of unfair dismissal as a Tribunal might find that there was not a valid resignation but that instead the actions of the employer actually amounted to a dismissal.

To recap:

  • An employer cannot choose to reject a resignation but they can request that that it is put in writing.
  • Meet the employee to find out what is going on.
  • If it was done in haste or you really want them to stay, give them a short ‘cooling off’ period as an opportunity to reconsider.
  • Should an employee change their mind and wish to stay, you do not have to agree to keep them on.
  • However, it is best to acknowledge the resignation in writing as it provides a useful documentary trail should an employee then attempt to retract their notice which you were happy to receive.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Does the time that workers, who are not assigned to a fixed or habitual place of work, spend travelling from home to their first working location, and from the last working location back to their homes, count as ‘working time’ for the purposes of the Working Time Directive? According to the Court of Justice of the European Union in the case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco it does count as working time.

According to the ECJ, there are three aspects to ‘working time’: being (1) at the workplace, (2) at the disposal of the employer, (3) engaged in work duties. For ‘peripatetic’ workers, travelling is an integral part of their job because it is all part of providing services to their customers. For peripatetic workers: aspect (1) was fulfilled because travelling is an integral part of the job, such that the workplace cannot only be considered as performing work at clients’ premises; aspect (2) was fulfilled because routes and destinations are determined by the employer who could at any point modify the instruction; and aspect (3) was fulfilled because, again, travelling is integral to the peripatetic work. This means that it should be regarded as part of their working activities and hence their working hours. Working time’ and ‘rest time’ are mutually exclusive concepts and there can be no ‘grey periods’.

The workers in this case are Spanish security equipment engineers looking after particular parts of Spain. They have company vehicles and start and finish most days from home. Their employer counted their working hours from the time of arriving at their first customer to the time they left their last customer and this is what their workers have successfully challenged through the court system.

Peter Stanway, our BackupHR™ legal expert comments:

Why does this matter to employers in the UK? The answer is that our courts will have to apply the judgment to people like sales representatives, maintenance/ installation technicians/engineers, domiciliary care workers. Travel to work is not working time unless it is actually part of the work activity, so it will not impact on most employees whose work place never varies. It is unlikely that a workers’ travel will count where, at the start and end of each day, they have to pick up or drop off a vehicle or supplies from a central premises e.g. delivery drivers.

It could be a potentially very difficult judgment for employers, many of whom adopt the ‘Spanish approach’ and discount some or all travel to and from variable working locations at the start and end of the working day. It is easy to say that this judgment only defines working time, but less easy to frame a response to the claim for extra pay suggested above. Much will depend on affordability but few employers would find it easy to pass on or absorb such an additional cost. The ECJ pointed out that the employer remained free to determine the remuneration for travelling time and that, save in the special case of paid annual leave, the Directive does not apply to the remuneration of workers. Thus, the method of remuneration would be left to the relevant provisions of national law. In other words, it should not impact on pay but inevitably it will for all those workers paid by the hour.

We would advise:

1. Employers will have to ensure that they comply with the Working Time Regulations, so this may well increase working hours within or above the ‘48 hour rule.’ Consider how to change your recording of working time and use of 48-hour opt-outs, remembering that those employees classed as “managing executives” are already exempt from this opt out e.g. sales reps that get to plan their won working day as to where and when they visit their customers.

2. Employees, who are on minimum wage or just above, will find it easier to claim that their actual average hourly rate is below the Minimum Wage and therefore claim a pay rise to ensure they are earning at least the minimum wage for the hours that they are working. So review whether low paid staff might have a strong basis for claiming they are being paid less than the minimum wage if up to now you have not paid them for their first and last journeys.

3. Prepare responses to those employees who tell you this decision means you must pay them more money.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

Legislation requiring companies to report on what they are doing to tackle modern slavery in their supply chains has been approved by Parliament. The Modern Slavery Act represents the first step to eradicating modern-day slavery in supply chains and to ensure this abuse comes to an end.

It may seem like it is far-fetched but modern slavery exists in this country and other countries and will become an increasingly live issue after October 2015.

The reporting that an organisation should follow in respect of its obligations is clearly set out and is straightforward:

1. An explanation of its policy
2. How it engages with stakeholders
3. How it integrates findings into its decision making process
4. How it is tracking its impacts in this area
5. What it is doing to provide a remedy for any impacts

Peter Stanway, our BackupHR™ legal expert comments:

In considering supply chains and human trafficking, an organisation should start its focus by looking at the jurisdictions (countries) and the industries that pose the greatest risk. What the Act is aiming to do is to take that transparency to the next level. For example, it is encouraging a company to demonstrate how it checks that human trafficking isn’t taking place with each of those suppliers. Ethical audits are not new and we are certainly aware that e.g. food suppliers working for the big supermarket chains have been asked to verify that they have checked that their supplies have been paying people a decent wage (for that country) since the 1990s. Some big clothing retailers have received poor press in the past for using suppliers that have made their staff work in appalling sweat shops conditions, so this whole concept has been around for awhile but up to now has been voluntary.

Section 54 of the Act requires businesses over a certain size to publish an annual slavery and human trafficking statement. The Government is yet to decide how it will define what constitutes a large business but one suggestion was a turnover in excess of £36m. The statement must confirm either:

a. the steps that have been taken to ensure that slavery and human trafficking are not taking place in any of its supply chains or in part of its own business; or

b. that no such steps have been taken.

A link to the statement must be published in a prominent position on the business’ website homepage and the statement must be approved and signed by a director. Businesses could opt to take no action as a result of the Act and simply produce a statement under option (b), but the Government hopes that public pressure, scrutiny from shareholders and the media, together with the risk of reputational damage, will encourage businesses to take real steps to investigate their supply chains and publish details of their efforts.

Next steps for employers

Large employers should start thinking about compliance now. Steps to consider include:

  • Making sure slavery and human trafficking is covered in your policies.
  • Auditing your practices for checking all employees are paid at least the minimum wage and have the legal right to work in the UK.
  • Updating template commercial agreements to include an obligation that suppliers will comply with the Act.
  • Appointing an appropriate person to be responsible for compliance.
  • Ensuring that staff, particularly those involved in recruitment, procurement and supply chain management, are aware of the law and are appropriately trained to make the right enquiries of potential suppliers.
  • Consider what due diligence steps might be applicable.

If you are a small employer, assuming you supply larger businesses then you are likely to be one of the suppliers being assessed by those companies, so you may need to consider:

  • What you can do to prove that you are paying people properly and only employ people with the right to work here?
  • What do your suppliers do about the above e.g. employment agencies and outsourced suppliers?
  • Are you comfortable about the products which you buy from abroad?

Employers need to be sensible about this. You should not be worrying about office stationery unless you are a reprographics business. The legislation is a good first step, but its success will depend on the efforts which companies make to purge slavery from their supply chains.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

ACAS has a statutory duty to promote the resolution of claims to the Employment Tribunal (ET), in order to avoid recourse to a full hearing, using its conciliation service. The landscape in which the service operates has changed significantly since April 2014, with the introduction of a new ACAS service, ‘Early Conciliation’ (EC). Now employees intending to lodge an ET claim have to contact ACAS in the first instance, to see if the dispute could be resolved through EC. ACAS has now published statistics showing the impact of the first year of Early Conciliation.

Key statistics include:-

• ACAS dealt with over 83,000 EC cases between April 2014 and March 2015;
• Three out of four employees and employers agreed to try EC in its first year of operation.

Of the Early Conciliation notifications received between April 2014 and December 2014:-

• 63% did not proceed to a tribunal claim;
• a further 15% resulted in a formal ACAS COT3 settlement; and,
• 22% progressed to a tribunal claim
• Of the 22% in which a claim was issued, 51% subsequently settled by way of a COT3.

Peter Stanway, our BackupHR™ legal expert comments:

What I find interesting are some of the less obvious results, such as the fact that employers reported spending a median of five hours working on the dispute. Where the employer used a representative, that time was reduced by two hours, a more efficient choice than the DIY approach.

There was considerable variation in the size of payments agreed, albeit the median payment was c £1,250. These findings support my experience, and it is not surprising to me, that employers top three benefits for having taken part were:

1. It can save going to a tribunal.
2. It resolves the issue more quickly.
3. It is cheaper.

I am also not surprised by the finding on claimants who decided to pursue a claim anyway. The main reason was that they had ‘wanted to hold the employer accountable’, which fits with my view that tribunal claims are invariably about emotion and a sense of injustice, rather than simply money.

The figures do not in themselves show how effective ACAS conciliators have been. A cynic might argue that only 15% resulted in a settlement, but Early Conciliation does attempt to explore the likelihood of claims, which would not otherwise happen. A third of claimants say they would have made a Tribunal claim. I am convinced that many people who just withdrew were convinced by ACAS that their claims were weak, or otherwise not worth pursuing.

So if you receive a request by ACAS for Early Conciliation, what should you do?

• Engage in the process; it is not a sign of weakness and remains confidential

• Take the opportunity to listen hard to what the claim is really about

• Listen to what ACAS think are any weaknesses in your case

• Explain what you believe to be the strengths of your position

• Get professional advice as it should help you reach a resolution more quickly and get the best possible deal

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

In September 2011 Robert Newbound was dismissed from his employment with Thames Water Utilities Ltd after 34 years’ continuous service. He used his own judgement deciding whether it was safe to enter a sewer without breathing equipment. The employer had recently introduced new health and safety practices, under which he had signed a form indicating that he knew he was required to use breathing equipment for this particular task. He presented a claim for unfair dismissal. The Tribunal (ET) found that he had been unfairly dismissed, but he had contributed to the dismissal to the extent of 40%. At a subsequent remedies hearing, a meeting to establish the level of compensation due, the company was ordered to pay £54,197.84.

The employer appealed to the Employment Appeal Tribunal (EAT), who allowed the appeal and dismissed the claim. It then went to the Court of Appeal who said there was no error of law in the ET’s approach, and therefore restored its decision.

This judgment addressed the perennial questions:

1. When is an employment tribunal justified in finding that an employer’s decision to dismiss on the grounds of conduct was unfair?

2. If the ET does so find, in what circumstances can that finding be successfully challenged on appeal?

Peter Stanway, our BackupHR™ legal expert comments:

You might think that an employment tribunal had to decide whether they thought the employer had acted unfairly in dismissing someone. You’d be wrong: over many years, judges have decided that what Parliament really meant was, where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the tribunal should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer.

When a tribunal actually decides for itself whether a decision was fair or unfair, it usually gets slapped down by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer, as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of ‘reasonable responses.’

This can make winning unfair dismissal cases difficult for employees. The judgment of the Court of Appeal does not disturb the received wisdom. It does emphasise, that if it is not for the ET to substitute its judgement on the merits of dismissal, it is not the job of the EAT to substitute its judgement for that of the ET.

Bearing in mind that failing to wear breathing gear in sewers can and does have fatal consequences and the employer took its health and safety obligations very seriously, the decision is a little surprising. I think the Court of Appeal took into account the man’s long service and the compensation had been substantially reduced, which suggests the Tribunal judge had carefully considered his judgment.

Lessons to be learned:

• Ensure that new safety instructions are fully communicated, understood and recorded.

• Consider length of service and mitigation in disciplinary decisions.

• Consider fairness as much as rules.

• Think very hard about the risks of litigation and appeals.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Provisions in the Small Business, Enterprise and Employment Act 2015 that render exclusivity clauses in zero-hours contracts unenforceable came into force on 26th May. The law now provides that any provision of a zero-hours contract which:

  • prohibits the worker from doing work or performing services under another contract or under any other arrangement, or,
  • prohibits him or her from doing so without the employer’s consent, is unenforceable against the worker.

The legislation also now provides a statutory definition of a zero hour contract. A worker on a zero hours contract may complain to an employment tribunal if their employer subjects them to a detriment because of working or performing services under another contract.

Many employers expect workers to be available for work when or if they are asked to work. This should prevent such abuse. It is less clear about the impact, if the employee performs work for a competitor, or there is similar conflict of interest.

Peter Stanway, our BackupHR™ legal expert comments:

The new legislation can be criticised for lacking real teeth in terms of enforcement provisions and for not dealing with anti-avoidance practices. The legislation also creates the power for the Government to implement further provisions in relation to zero hour contracts. Until these anti-avoidance measures are in place, the ban will not create any meaningful protection for zero hours workers.

As more measures are introduced it will be interesting to see how many employees take steps to enforce their new rights in the face of a breach by their employer. It is possible that, despite the publicity this issue has attracted, many will either be unaware of their rights, or put off lodging a claim as a result of costly Tribunal fees. I suspect most will get work when/where they can.

One of the problems, which emerged from the consultation exercise is the need to improve information, advice and guidance in relation to zero hours workers. The Government in its response to the consultation, pledged to review and improve existing guidance available to employers and workers. Such guidance would help to correct the confusion which often surrounds the rights of zero hours workers, particularly in relation to working time and holiday pay.

Now exclusivity clauses are banned, employers should re-evaluate whether zero hour contracts are the correct type of contracts required for their business needs. Many employers have jumped on the bandwagon of zero hours without fully understanding the legal and other difficulties attached. Other types of flexible contract may be more appropriate.

Employers should also consider having contracts and practices reviewed to ensure compliance with the new legislation and to ensure they are fit for purpose. They should seriously consider removing or amending any offending clauses from their contracts.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The warning for employers in the case of Thomson v Imperial College Healthcare NHS Trust is that appointing an inexperienced decision-maker to preside over a disciplinary procedure could make a resulting dismissal procedurally unfair. The case involved a Consultant Neonatologist, who was dismissed for bullying colleagues. The consultant had some history of bullying behaviour. She had been warned informally about her treatment of colleagues and given a written warning (although not a final written warning) for bullying. Four weeks after the written warning, and following three further complaints of bullying behaviour, the employer started fresh proceedings.

The employer had a clear anti-bullying and harassment policy and bullying was given as an example of gross misconduct in its disciplinary policy, which included standard incremental sanctions for misconduct from first written warning through to final written warning and dismissal. Dismissal was, however, reserved only for incidents of gross misconduct or misconduct following cumulative previous warnings.

The employer appointed a medical consultant to chair the disciplinary, who had no experience or training in how to conduct disciplinary proceedings. Following the disciplinary hearing, he dismissed Thomson summarily for gross misconduct. She brought proceedings against the employer for unfair dismissal and disability discrimination, arguing that the employer had failed to make a reasonable adjustment in dismissing her, as her disability (dyslexia) meant she was more likely to engage in bullying behaviour.

The employment tribunal found that the dismissal was procedurally unfair and criticised the appointment of a disciplinary chair who lacked experience. The tribunal said “as a minimum, fairness entails a decision by someone equipped with ability and experience commensurate with the demands of the case.”

Crucial to this finding, was the inexperience of the disciplinary chair, and the incorrect application of the employer’s disciplinary policy. The chair admitted that, in his view, the three incidents of bullying alone were serious but did not amount to gross misconduct. He then went on to elevate the incidents to gross misconduct by taking into account the context in which they occurred, including the previous warnings, and evidence of their impact on the individuals concerned and the clinical risks from poor teamwork. Given the admission that the incidents did not in themselves amount to gross misconduct, the tribunal also found that the decision to dismiss was substantively unfair, as it was outside the range of reasonable responses.

The Employment Appeal Tribunal upheld the tribunal’s decision and went on to stress that although the chair was of the right level, he did not appear to have any training or experience in conducting hearings hence his failure to apply the employer’s own procedure. Not unsurprisingly, the discrimination argument was unsuccessful as the tribunal had correctly concluded that there was no link between dyslexia and behaviour liable to amount, or be perceived to amount, to bullying.

Peter Stanway, our BackupHR™ legal expert comments:

As the UK’s largest employer, the NHS could have expected to find an experienced, trained disciplinary chair. This will not be the case for most employers including our clients who often struggle to find one senior person.

The learning should be a reminder of:

  • The importance of training managers and directors on applying disciplinary procedures and sanctions.
  • It will invariably be fatal if the chair fails to properly apply procedures
  • Several incidents do not make one gross misconduct
  • Do not rely on winning an appeal as the EAT are reluctant to find tribunal decisions to be ‘perverse’.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.