hello and welcome to this session in which we're going to look at the topic of dismissal. And specifically, we're going to look at a number of cases relating to the issues of a fair dismissal of investigations, suspension, looking at within the range of reasonable responses, procedural issues, bringing the company into disrepute and finally, some points relating to the termination date. So we're not going to work through the dismissal process step by step. Rather, we're going to take different aspects of dismissal and explore them in more detail before proceeding with that, however, it's worth just reminding ourselves that a fair dismissal is one where there is both a fair procedure Onda fair reason on if there's going to be a fair procedure, this means that the acres code of practice, disciplinary and grievance procedures must be followed. The fair reason is one of the five potentially fair reasons set out in the Employment Rights Act 1996 that of capability, conduct redundancy, a statutory ban or some of the substantial reason. So let's look at the acres code of practice, disciplinary and grievance procedures in a little bit more detail, asking when it does apply on when it doesn't apply well, firstly, in quite a straightforward manner, the ache has Coast specifically says that it does not apply in a redundancy situation and does not apply when there is a termination of a fixed term contract. But what the acres code is doing is taking the employees through a series of steps with disciplinary warnings, if that is appropriate. But of course, sometimes the implement contract has been terminated not because the employee has done something wrong, but because the contract can continue in the way that it is Onda Does EA cast code work there on There were two cases in 2016 there asked this very question. First of all, Phoenix House LTD. Versus Stockman here. The employees had been dismissed you to poor working relationships in. The employee argued that this was unfair because they really wanted to make the relationship work. The dismissal Waas found to be unfair because it was outside of the range of reasonable responses that of the employer, because the employer really wanted to make things work and so the employees should have given that a chance. However, there was no uplift for not following the acres code on what the ruling said Waas that the A cast code of practice applies when there is something for which the employee is culpable when there's a disciplinary issue and here the reason for dismissal was really some of the substantial reason that the relationship had broken down. So if we have a situation for where it's no a disciplinary situation, capability conduct being the most common examples of this, then the acres code might not apply. We also have the homes Restless Quintet Limited case here. The employee was, um well, there's been a series of discussions on it was decided to terminate the employee's contract of employment, and here is ruled that the a cascade of practice, disciplinary and grievance procedures did not have to be followed because this wasn't a situation where the employee had done something wrong. So there are situations outside of redundancy and termination of fixer and contracts where the acres code doesn't really apply. However, it's just worth noting that the acres code is not onerous. It requires writing to the employee, setting out the issue, meeting with the employee, allowing the appear the employees to appeal against any decision on then there are the key principles within the acres code, things like fairness and transparency and consistency. And even though it might not be appropriate to go through disciplinary warnings, it clearly wouldn't. It wasn't a disciplinary issue or that structure. Some of those basic principles things like consistency on fairness and dealing with issues promptly should be part of the way that any termination of employment is being dealt with. So there are some principles there, but that is just good practice to follow. Now, what about the issue off investigations? Of course. The key case here is British Home Stores versus Birchall, 1978. It's just worth is refreshing our memory off that case and then looking at another two cases that where the employer got themselves in into a bit of a mess. So, firstly, Birchall. But this was a situation in British Home stores. The department stores it them waas where there were irregularities in the till Andi, the employer, decided that what they would do is keep a record of who was working whenever the till was irregular. Whenever these problems occurred on from that, they would be able to work out on a balance of probabilities who must have been doing whatever was wrong. And Birchall was the only employee who was working every time that the inconsistencies occurred. So it was decided to dismiss her, and she said, Hey, I didn't do it and be You have no proof that I did it on. Therefore, on that basis, you can't dismiss May Andi. What was found was that it was fair because the employer had carried out a reasonable investigation on had a reasonable belief of the employees. Gil, based on that reasonable investigation on, of course, we have to remember that we are in civil law and not in criminal law, and therefore there is no requirement to show that the employee is guilty beyond a reasonable doubt are on the obligation is to show they're on the balance of probabilities the employees did as alleged. Now the investigation is an essential part off a fair dismissal. There is a limit on what the employment tribunal would expect an employer to do because, of course, we are in civil law. But still there should be no dismissal until there is some clarity that the employees that was alleged Andi, If an investigating officer is appointed, they should be allowed to carry out the investigation without interference. In the Ramphele versus Department for Transport 2015 case, the manager was asked to investigate a situation on Did So on wrote a report saying that, yep, the employees had done some things wrong but also have done some things not wrong. Andi therefore decided that recommended that a final written warning would be appropriate. This report was sent into the HR department on over a six month period. The HR department kept going back to this manager raising issues, QUERIAN points on. Eventually, the report was bit by bit amended, such that the recommendation became that the employee was dismissed on that was found to be unfair. Once the investigating officer has written the report, it shouldn't be interfered with. We also have a case that in some ways is not dissimilar on that's Drones Field versus the University of Reading 2016. In this case, Drones Field was Electra on heared ended into a relationship with a student, Andi, the company, the university rules where the he should disclose this and he didn't an investigation took place, and a number of positive comments were made about the lecturer. But following interventions from the in house law department on the HR department, the positive comments were removed on the Employment Appeal. Tribunal ruled that this compromise the fairness of the procedure, so there must be an investigation. It must be a reasonable investigation. Andi, whatever the investigating officer concludes, that shouldn't be interfered with now. What about the issue of suspension? For many employees, this is traditionally, if you like, been a routine part of the process. If the issue is one of gross misconduct, that win see issue comes to light. The employees would be suspended on full pay while the issue was investigated further. But increasingly, the courts are critical off this approach, saying that a suspension is not a neutral act. I suppose, put into more everyday language. There's no smoke without fire when somebody is suspended. There is a suspicion about from everybody around that they must have done whatever it is that is alleged. So one or two cases first we're going back a little bit further. The Gogi versus Heart Lucia County Council 2000 case. Although this is a bit older, it again is a case critical off the automatic approach of suspension. Here it was. A school teacher should be concerned about a child that seemed to have a bit of a fixation on er on bond. Nothing was done about that, and then an allegation was made of sexual assault. Andi she was suspended and it was found that she had no case to answer. And so she was told she could go back to work. But she successfully argued that there had been a breach of contract breach of the implied term of mutual trust and confidence. There was no need to suspend. She'd already flagged up that there was a problem developing Andi. It was inappropriate to to spend her, and the investigation could easily have been carried out with her still there. Then we have two cases from 2017 1st 1st of all, the A Goryeo versus London borough of Lambeth, 2017 again a teacher on this time, she a teacher who had been accused of using inappropriate false when managing Children. She was suspended and she resigned again. Claiming a breach of the implied term of mutual trust and confidence on here, the employment tribunal said a suspension should not be a knee jerk. Reaction is not a neutral act, and employees should only be suspended when there is good reason to do so. On is also important to note that if any believes suspended on its found that there is no case to answer. Then when they come back to work, they carry on as if nothing had happened. In the case of Dickinson versus the governing body of Easing Term Lane Primary School, 2017 the employee was dismissed because she made some comments about the budget on some concerns. She had about it to a junior member of staff. She was the office manager. Andi was suspended. An investigation took place. It was decided that it was no appropriate to take any further action or to dismiss. So she came back to work. But when she came back, a number of employees who had previously reported to her no longer dead Andi, Um, some of her duties had been taken off her. She was doing more menial work. Onda, also her office, had been taken away from his. She was working in an open plant situation on all of these were seen to be penalties. If you like. And yet it also been found that she had done nothing wrong. So, really, the summary on suspension is it is sometimes appropriate if emotions are running very high. If the employee could potentially destroy evidence. If if it's just the best thing for everyone, for there to be a bit of a calling off and for the employees to be removed from the situation, it might be appropriate. But it shouldn't be a routine part of procedure, and it should only be done when it really is necessary to take that step. It's also worth reminding ourselves that for a dismissal, to be fair, it's got to be within the range of reasonable responses of the employer. And it's accepted that one employer might dismiss where another might know on that some employers are harsher than others. But as long as it's within the range of reasonable responses, that doesn't matter, and the employment tribunal cannot substitute their own views, so they're not allowed to say what they have dismissed. They are simply allowed to say, Was it reasonable in this situation for the employer to have dismissed on that comes from the case of Iceland frozen Foods or Limited versus Jones, 1983 where the employee was dismissed for failing to lock the door and getting involved in a Globe go slow situation. And in this case, the employment tribunal was criticized by the Employment Appeal Tribunal for substituting their own view on it was reiterated that there only a remit is to say, Waas this reasonable for the employer to do. And so when advising employers, Ah useful challenge is to say, Well, is this reasonable? The very many employees that you deal with? Would all of them dismiss in this situation? Would some no, is it within the range of reasonable responses? So let's look at some pre see general issues here. First of all, Talent Engineering LTD. Versus Smith, 2018 on the frustration that the employer was feeling here is one that isn't unusual in some ways. The employer. I wanted to arrange a disciplinary hearing. First of all, the employees was unwell, so it had to be rearranged. Then it was, put it a date where the employee was on annual leave so it had to be rearranged. And then we got another date on the employees chosen representative wasn't available and wasn't going to be available for another two weeks on. The employer said Enough is enough. We're going ahead with the hearing. Andi. The employees wouldn't attend without the representative. And so they went ahead in the employee's absence on the resulting dismissal. Waas Unfair. How many times should you reorganize? Well, if the employee is, um, well, it's probably going to have to be reorganized. It depends how long the employees going to be off and what the issue is. If the employees got annual leave, then the employees shouldn't arranged anything then anyway. But if the representative is unavailable, then the employer I should really be rearranging further. I think in this case, if it had been rare, rearranged once Mawr because of representative and then the representative wasn't available again, maybe it would have been visit reasonable to proceed. Another interesting procedural question is that of anonymous witnesses on this was addressed in the cases Linford Cash and Carry versus Thompson, 1989 here. That was witnessed what happened. But the witness was concerned that if he spoke up, he might be attacked on. Therefore he wanted to Renee remain anonymous on the employment Appeal Tribunal said that the employer had to balance the needs of the witness against the needs of the accused to be able to defend the allegations. There will be times when it's appropriate to use an anonymous witness, but they should be minimal because, of course, the accused has got have every chance of defending themselves on of asking questions of a witness, if appropriate, on if they don't know who the witnesses, that impedes their ability to defend the allegations being put to them. But if there are really concerns, it could be appropriate to do so. The interesting question of what happens if you know that somebody has done something that's gross misconduct. But there's a group for employees, and it's not possible to tell which of the employees did it on. This was addressed in the case of Par versus Whitbread 1990. The safe had been emptied overnight on, and it was possible to include that. It was one of four employees that have done this, but it wasn't possible toe identify who investigations were carried out. The employees were talked to, but a blank was reached on. It was found to be reasonable to dismiss all four employees. The employer had carried out a reasonable investigation. Hand had reached a situation where it wasn't possible. Teoh explore anything any further. Now, an issue that has become much more topical in recent years is dismissing UN employees for bringing the company into disrepute. On the reason primarily that has become so topical is social media cases. So the three cases that I am going to talk through here all relate to postings on Facebook. On there have been a number of cases where employees have posted something on their personal Facebook accounts, but that has damaged the company in some way potentially. Now these three cases helpers just to understand a little bit more what the cause do and don't see as bringing the company into disrepute. The first cases Priest versus Trade E. Weatherspoon's 2011 I'm in this case, the bar manager had excluded some customers from the bar, basically kicked him out and barred them. Andi went on to her personal Facebook account. Andi made some comments about what happened. She didn't name the customers, but if you were a regular, you would have known who she was talking about on the company had very clear social media policy that nothing was to be posted that could potentially bring the company into disrepute. Andi It was argued that she had breached these rules. The was a clear company procedure on She had actually signed a document to say that she had received on dread that procedure, and that was found to be a fair dismissal. In the case of Withem versus Club 24 trading as venturers 2011. Here we have a situation where the employee was frustrated at the end of a day's work on posted on her Facebook page that working at her employer was like working in the nursery. And she wasn't talking about plants he was doing about. It was like working with a load of Children, and she was dismissed. Onda. The company was a supplier to Skoda Andi. They were very precious about that. That very important supply relationship on May said her comments could brought to come into a district disrepute. Andi damaged that relationship with their key customer. They weren't successful in this argument with them. With a relatively junior employees on. There was nothing to suggest that the comments that she had made could damaging a commercial relationship, so that was not bringing the company into disrepute. We then have the cases crisp versus Apple retail 2011 Crisp with a sales person working in an Apple store. Andi, he went on his Facebook page. Andi made some comments about Apple products on Apple APS, saying how unreliable they were. He was dismissed on this was found. To be fair, the apple relies hugely on its browned on that by posting these comments when he was actually responsible for selling the products that that damaged the company and brought them into disrepute. So really, some of the key messages from the social media dismissals is if employees are going Teoh, be subject to disciplinary action for posting something on social media. That does need to be a policy that saying that that is a possibility. Andi, that's saying what is and isn't acceptable use of personal social media? Andi Also, it's got to be something that damages the company. Potentially, employees are allowed to go onto the Facebook page and say things no damaging, and then finally, just to look at three very recent cases relating to the termination date, the first is East Can Hospitals University, NHS Foundation Trust versus Living 2018. In this case, E employees worked in one of the departments in the hospital, and she had applied for a job in another department, just a move from one department to the other and she being successful in her application. Then the manager of the new department wrote to the manager of the old department On Found out that her attendance had been caused. Concern on on that basis pulled out the offer of employment she had already written to her line manager saying, and I resigned from this role, Onda, her manager of her existing department, said. Where you're leaving, you've resigned, and when she resigned, you have no right to change your mind. And she said, Well, no, I've not resigned from the hospital and the hospital is my employer, not my department. All up done is tell you are moving from your department to another that she was successful in the argument, and it's really important if an employee does resign to first of all, get that in writing so that there is no argument about whether the employee has resigned or been dismissed. If the employee won't British him writing. Then the employers should write to the employees and confirmed the situation and confirmed that the employee has resigned, confirmed when they're leaving on, if it is a big employer with lots of different departments or different subsidiaries than it should be clarified whether the employee has resigned from their particular area or whether they resigned from the employer as a whole, and it's also really important that clarity is given it. There is some heated discussion. Ideally, we don't have heated discussions, but of course there's really life. In the case of Jones versus Fly Light Air Sports LTD. 2018 Jones was a flight instructor. He got into an argument with his line manager, Andre the Line managers said something along the lines off. I don't want you flying in my aircraft. Pack your bags and leave. So he did. Andi, then the employer, invited him to a disciplinary hearing, and he's a beloved Already left. I've really been dismissed on. He took a claim of unfair dismissal, arguing the being told to pack your bags and leave is no affair procedure, which, of course it isn't on what the employer argued was no that that wasn't actually a dismissal. We wanted to go through a disciplinary procedure, but he wouldn't cooperate with it. And they were in successful in the argument, saying, Pack your bags and leave is sufficient for the employed in clean that they have been dismissed. So it's really important that managers are aware of the importance of controlling themselves even when they're angry. And then finally Newcastle upon Tine NHS Foundation Trust versus Hey with 2018 on this case, look to when is the effective date of termination? What happened here is that the employee was at risk of redundancy that been some discussions with her on then she went on holiday, and when she went on holiday, the conclusion of the discussions had not been met. But soon after she started her annual leave, the employer confirmed that she wants to be dismissed. Andi, the actual date that she was given notice really mattered because she was your birthday on the birthday actually would push her into a bracket of getting considerably more compensation. The employer sent her a letter by recorded delivery On also even sent an email to her at her husband's email account, but she wasn't at home because she was on holiday. So she didn't receive the letter until she got back on. She didn't access C E mail until she got back, either. So the question waas walls the effective date of termination when the letter in the email was sent or Wasit when she read them. And the answer was its when she read them. The termination date is when the employee is made aware that they've been terminated. No, when the employer communicates up, if those two are at a different date. So I hope you found this session useful. Thank you for listening.
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