This simply isn’t true. Pretending you’re too ill to work when in fact you’re well enough would certainly warrant a disciplinary, but the simple fact is that you can be too ill to work but still quite well enough to get on with your leisure time and have some fun.

Two examples from opposite ends of the spectrum:

• Ill worker fired over facebook – A Nationale Suisse employee went home with a migraine, saying she needed to lay down in a darkened room. When the company noticed that she was active on facebook, they dismissed her on the basis that she must have been well enough to work. This simply wouldn’t wash here without further investigation.
• Employee with bad back takes part in surfing competition – One has more sympathy with the employer here, but an Australian appeals tribunal ruled that since he had been medically advised he could safely surf, but was still not fit to work as a baggage worker, dismissal was too harsh a penalty (thanks to Barrister Blog for this story).

If an employee has lied about his or her condition then this is grounds for disciplinary, but unfortunately that’s as far as an employer can take it.

Meanwhile in the UK, new “fit notes” to replace the sick notes issued by GPs are due to come into use in 2010.

Where they are of use to the employee is where they had long contracts with significant benefits, and where they would find re-employment difficult or impractical. Obviously these points can still be cured with money, but being put back into the same job (or one like it) is still a decision that some employees take.

An order for reinstatement puts the employee back in the same job from which he was dismissed, his original contract is revived and it is in effect as if the dismissal had never occurred.  Where this is impractical the tribunal can instead order re-engagement, where the employer must re-employ the employee on such terms as it thinks just. Therefore, if the circumstances of the dismissal had alienated the employee from his particular team, the tribunal could order appointment to a different position within the employer. ‘Re-employment’ is used as an umbrella term for both orders. An employer cannot be compelled to comply with a re-employment order, but if it does not comply then additional compensation will be awarded of between 26 and 52 weeks pay. Because of this, threats of applications for re-employment are used far more often than they are meant, in order to leverage larger settlement offers from employers who would rather cut off their own nose than re-employ someone they spent so much time and effort removing from the company.

In the recent EAT case of Central & North West London NHS Foundation Trust v Abimbola [2009] UKEAT HHJ Peter Clarke runs through what a tribunal must consider if it is asked for a re-employment order. The relevant law comes from s116 of the Employment Rights Act 1996:

116 Choice of order and its terms
(1)In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account-
(a)whether the complainant wishes to be reinstated,
(b)whether it is practicable for the employer to comply with an order for reinstatement, and
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
(2)If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3)In so doing the tribunal shall take into account-
(a)any wish expressed by the complainant as to the nature of the order to be made,
(b)whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.

This case was concerned with that practicality requirement. The Claimant, a psychiatric nurse, had been accused of holding a troublesome patient in a headlock. It was common ground that the Respondent NHS Trust had a genuine belief that the incident had occurred, and that dismissal was a reasonable response to that belief. The Tribunal found that the dismissal was unfair as the employer did not have reasonable grounds for that genuine belief. It also that there had been no contribution to the dismissal by the employee. It ordered reinstatement.

In short, the EAT overturned the reinstatement order because the genuine belief held by the employer as to the employee’s conduct rendered it impractical to put him in such a trustworthy post. The logic is that employment requires mutual trust and confidence and the employer simply could not repose such trust and confidence in the employee. In doing so it followed a previous similar decision in ILEA v Gravett [1988] IRLR 497.

One other item of note from this judgment is that the tribunal can take note of previous unproven allegations in determining the issue of trust and practicability, whereas these are usually disregarded for the purposes of the unfair dismissal itself.

Indeed, the language of Article 6 refers to ‘determination of civil rights and obligations’ when referring to the need for an impartial tribunal, and so on. Some new areas risk blurring the lines: there are now provisions for workers to be legally prevented for working with children, in schools, and with vulnerable adults where concerns over their behaviour has come to light. In this situation the effect of the disciplinary proceedings can be said to have consequences that go further than the relationship between the employer and employee. 

In the case of G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin), a teacher was accused of sexual impropriety with a 15 year old, involving a breach of trust. He was found by a disciplinary panel to have been in breach of trust, and the case referred to the Secretary of State to see if a direction should be made forbidding him from working in education. He was refused legal representation at the meeting. He challenged the validity of the meeting by judicial review, claiming that under Article 6 the proceedings were effectively criminal proceedings given the gravity of the allegations and the consequences of adverse findings. In the alternative, he claimed that even were the proceedings civil then they were of sufficient seriousness to require a right of legal represenation under article 6. The High Court found:

In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant’s future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.

It is important to realise that direct enforcement of human rights legislation, and judicial review proceedings at all for that matter, is only possible against public sector employers. Even so, this ruling opens the way for a considerable widening in what procedural safeguards must be put in place for more serious disciplinary cases.

• The cap on a week’s pay for Statutory Redundancy Payments, the basic award, and related purposes – up from £330 to £350;
• Maximum compensatory award on a finding of unfair dismissal – up from £63,000 to £66,200;
• Guarantee payment during lay offs – up from £20.40 to £21.50.

The new limits will come into force for dismissals (or the particular relevant event) on or after 1st February 2009. The statutory instrument with the full changes is here.

Ross & Brand

What faced the BBC with Ross & Brand was the same issue that faces many smaller employers, just on a grand scale. An employee has done something which is eminently dismissable, but the employer doesn’t want to go through with it, despite pressure to act. A more stereotyped example of such a conflict is when the most successful salesman in the company sexually harasses the receptionist and she demands his dismissal. I’ve missed the boat on this particular news story in terms of adding my comments on Brand & Ross, and like most employment pundits won’t bother because there simply isn’t a legal angle.

Actually, this is my blog, so I will stick in my two cents. I’m a bit of a channel hopper in the car, and I found it difficult to square the Today programme (together with most other media) saying that there was universal condemnation and outrage with Radio 1′s news presenters (10 million listeners daily) saying that almost all the people contacting that station thought the whole incident was blown out of proportion. The silent majority isn’t always who you think it is.

Baby P

Not long after the tragedy came to light, I heard an interview on Radio 4 with a minister responsible for children’s services. The interviewer asked him why on earth no-one had been sacked over the incident. His response was something like “The investigation done so far has not revealed incompetence or misconduct on the part of any individual sufficient to warrant dismissal. The absolute worst thing we could do, both for morale and constructively diagnosing what went wrong and avoiding it in future, is simply find a ‘sacrifical lamb’ and consider the matter resolved.” “But,” said the interviewer, “wasn’t Baby P the sacrifical lamb? Isn’t it outrageous that no-one has been held responsible?”

A meaningless and jingoistic response to an intelligent and pragmatic answer.

And finally…

Sack the Strictly Come Dancing judges. OK, perhaps not meant seriously, but dismissal seems like the first solution to trip off the tongue in any dispute. In fact, calling for someone’s sacking is often the most lazy suggestion to a difficult problem (perhaps not John Sergeant’s dancing).

The lesson here for employers is that decisions are rarely black and white. If you always capitulate to someone baying for blood, then you’ll have to justify it at the tribunal. Similarly, burying your head in the sand can get you in even worse trouble. Competing considerations can lead to bad decisions. Don’t lose your sense of proportion, or sense of purpose in running your business.

Omar Fikri brought a claim under the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003. As usual the reporting of this story concentrates on one part of the behaviour – Fikri was also called ‘disgusting’ by his manager Mr Low when he failed to answer a ringing phone whilst he was engaged in daily prayer. This latter is more serious in my view than the terrorist jibe. The manager’s response as reported here as responding:

“I was shouting at him because he ignored me, that’s what made me angry, not the fact he was praying.”

This shows considerable impatience and intolerance with the action of praying, and is not really a proper response at all.

Apprenticeships are very important to the government’s plans. They are seen to benefit school leavers by providing a career structure and a route to qualification, and of huge benefit to industry for much the same reasons, since recruitment and training is supported by government at relatively little cost to the employer. The government plans to raise the school leaving age to 18, but will include vocational training programmes such as apprenticeships. Balls further states that this will necessitate the creation of a further 150,000 apprenticeships over the next five years, which will come on top of the already impressive£1bn in funding available for these programmes.

It is difficult to argue with this policy. I always had a sense of unease over the goverment’s push in the late nineties to hugely increase the amount of students going on from school to do a degree, which had seemingly little focus on the resulting future career benefits, if indeed there were any for some. This new focus on apprenticeships, by comparison, can guide school leavers into their first job. Leaving school at 16 gives a school leaver sudden freedom of choice at a young age, and the stark difference between school and work means some of them inevitably don’t handle the change – to say that some unemployment, crime,and antisocial behaviour are possible consequences is not, I think, unreasonable. 

Download the press release here: Denham & Balls TUC Speech News Release

However, employers beware. I once dealt with an employer who had been delighted at the prospect of employing five workers for the price of one. But when they weren’t actually very productive, and required more supervision than this very small company had envisaged, the employer was shocked to be referred to the case of Flett v Matheson [2006] EWCA Civ 53. This case overturned previous authority, and held that a modern style tripartite apprenticeship was to be treated the same in law as a traditional common law apprenticeship, such as have existed for hundreds of years. The difference is important – if I wrongfully terminate an employee’s contract, I must pay him the balance of notice that I should have given him, subject to his duty to mitigate his loss by finding another job. If I wrongfully dismiss my apprentice, heads of damages bold and shocking to employment lawyers come to the fore. A contract of apprenticeship will not normally enable the employer to terminate it before its completion (save for gross misconduct, which of course is a contractual repudiation). In the Denning case of Dunk v George Waller & Son Ltd [1970] 2 All ER 630 (no link I’m afraid) it was held that damages can include diminution of future prospects, as well as loss of earnings and training for the remainder of the contract. This first head can be huge: see the operation of the principle in all its glory in this case, as an apprentice sacked three years into a four year apprenticeship was awarded £20,000 for wrongful dismissal.

Although it’s an obvious headline-grabber there’s not much surprising here legally; once the tribunal had come to the decision that Price had suffered serious name-calling, bullying at the hands of his awful sounding manager, and an ‘incompetent’ subsequent investigation by the Church authorities.

Guidance on injury to feelings awards is always useful however, and the tribunal here awarded £25,000. This is (more or less) the most that tribunals should award except where a case is exceptional. The guidance on these awards came from the Court of Appeal in 2002, who directed as follows:

i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

This seems sensible – it means the code of practice rewards compliance and punishes non-compliance, but isn’t so absolute in its effect such as to result in injustice.

I’m pretty stunned by the simplicity of the document, which can be found here. Those used to Acas guidance will have been checking the amount of paper in the printer, but no need here. The full document, including the consultation what nots, is a mere 14 pages. The steps that should be followed are fairly uncontroversial, but have a look for yourself. One paragraph that did catch my eye was this:

23. Some acts, termed gross misconduct, are so serious that they may call for summary dismissal for a first offence.

What this, with its surrounding paragraphs, says is that dismissal on the first offence can only be for gross misconduct. Whilst that will be the case 95% of the time, I’m not sure that as a statement it’s correct in law.

• If use of the database is widespread, finding another job after dismissal will be near impossible; this could seriously affect an unfairly dismissed employee’s chance of mitigating his loss pending the unfair dismissal finding (at which one assumes the dismissal will be removed from the system). This will mean higher compensatory awards, and potentially arguments over damage to reputation and so on.
• What if I’m being investigated for an allegation that constitutes dishonesty, but I resign for other reasons? What if I’ve been constructively dismissed? What if the allegations of dishonesty were victimisation following a discrimination claim? The disputes reaching the database operators could well trespass into findings best left for a tribunal – and if the procedures don’t exist then serious injustice could result.
• Will there be any compulsion for those employers signed up to the system to report their employees? A lot of investigations and disciplinary procedures end with a resignation, a cessation of the procedure, and the employer simply refusing to respond to subsequent reference requests. An employee in that situation still has reasonable chances of employment, but if his former employer is obliged to put him on the database then his chances are shot.

I can well understand why there are concerns. A TUC representative stated to the BBC:

“The TUC is seriously concerned that this register can only lead to people being shut out from the job market by an employer who falsely accuses them of misconduct or sacks them because they bear them a grudge. Individuals would be treated as criminals, even though the police have never been contacted.

“The Criminal Records Bureau was set up to assist employers to make safe appointments when recruiting staff to work with vulnerable groups. The CRB already provides appropriate and properly regulated protection for employers. Under the new register, an employee may not be aware they have been blacklisted or have any right to appeal.”

…and at the moment those very genuine concerns aren’t answered.