“Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant (see Barclay). These we refer to as special circumstances. Where special circumstances exist it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is needed to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer’s risk.”

This authority has given us “heat of the moment” resignations and dismissals. Under the strict contract law position, an employee who bellows “that’s it, I quit” at his boss and stomps out of the factory, has resigned. Perhaps his boss yells back “good!” The employee could not then, according to contract law, cool off and change his mind. Not in employment law. The special circumstances mentioned above mean that in some cases resignation can be withdrawn – our angry employee might have bellowed “that’s it, I quit”, but during his drive home, knuckles white as a grips the steering wheel in rage, he may suddenly remember his mortgage, wife, children and re-think things. So he telephones his boss, explains he lost his temper, and that he is on his way back to work. He might well be successful in showing that his employment was revived by his change of heart.

This is a sensible rule, but has never come with hard and fast time limits attached. In Kwik-Fit Wood J described a reasonable period as “relatively short, a day or two”. A recent EAT case, Willoughby v C F Capital Plc [2010] UKEAT 0503_09_1307 has helpfully confirmed:

1. the doctrine applies equally to a heat of the moment dismissal as it does to a resignation [although it would seem clear that each would require a different assessment as to what was reasonable];
2. that a 14 day delay (even with Christmas in the middle) was far too long for special circumstances to exist.

James Medhurst has helpfully tied together an analysis of this case with the ruling of Roberts v West Coast Trains Ltd [2004] EWCA Civ 900, which gives the employer a right to unilaterally reinstate following an appeal, or even perhaps without one. This does, as he says, potentially alter the balance between employer and employee, as the former could always “cure” his heat of the moment dismissal by reinstating whereas the employee is stuck with his resignation.

It should always be remembered by employers that an offer of reinstatement, even if refused, can be tactically beneficial in reducing compensation to an employee who, it can be argued at the tribunal, has failed to mitigate his loss by taking up the offer.

“I was struggling with the fact that so many black people had lost their farmland. And here I was faced with having to help a white person save their land. So, I didn’t give him the full force of what I could do. I did enough so that [he would] go back and report that I did try to help him. So I took him to a white lawyer … I figured if I take him to one of them, that his own kind would take care of him.”

Seemingly damning stuff.

As happens in the media-driven world, a storm developed almost immediately. The edited video appeared at 11.18am, and by mid-afternoon was all over the web. By the evening government officials had telephoned her demanding her resignation. She has alleged that this speed, and refusal to listen to her explanations, stemmed from the administration’s fear over the coverage they would likely receive that evening from right wing angles of the press. She later said that the under-secretary of state told her “you’re gonna have to [resign] because you’re on Glenn Beck tonight”. So she did.

But OOPS! The video of the speech had been carefully and deliberately edited. In the full speech, which came to light the next day, Ms Sherrod makes clear that she did ultimately provide all the help she could to the white farmer, and that she learned from the experience:

“But working with him made me see that it’s really about those who have versus those who don’t, you know, and they could be black, they could be white, they could be Hispanic.”

The white farmer concerned contacted CNN to say that she had, in fact, saved his farm.

So Sherrod was blameless. She had simply made a speech about her views of social justice being centred on race in the eighties, but moving to poverty based on her experiences of helping a poor farmer who was, for once, white. NAACP, the black civil rights movement to whom the speech had been addressed, said:

“she was sharing this account as part of a story of transformation and redemption. In the full video, Ms.Sherrod says she realized that the dislocation of farmers is about “haves and have nots.” “It’s not just about black people, it’s about poor people,” says Sherrod in the speech. “We have to get to the point where race exists but it doesn’t matter.”

The problem being of course, that she had already been dismissed.

Would this dismissal have been fair in the UK? The instinctive answer is that of course it would not; the law requires that:

1. a dismissing employer believes the employee to be guilty of misconduct;
2. had reasonable grounds to sustain that belief;
3. and in the circumstances carried out a reasonable investigation.

Surely point 3 should surely fail here, given that Sherrod’s version was vindicated within 24 hours?

Might the government argue however that “in the circumstances” no greater investigation was possible? The administration was about to suffer a whole evening’s media, and next day’s newspapers, slamming it for both racism and a failure to take any action. If indeed she were guilty of the alleged racism, then it could avoid a great deal of criticism by having acted quickly and decisively. The proposition I would like to put forward, for debating purposes only you understand, is that these are legitimate reasons for an employer to curtail its investigation.

Take, for example, a company which suspects one of its employees of having stolen from a major customer. That customer is furious, and the company considers that only immediate dismissal will salvage the business relationship. The employee is dismissed, and as an explicit result of that the relationship is saved, and perhaps with it the company. This trespasses into third party / SOSR dismissal territory, but surely commercial or political pressure is a relevant factor for the third prong of the test? I’d be interested to know what people think. Is there perhaps an echo of Sharon Shoesmith here?

Happily, Sherrod has now received an apology and the offer of a new government post. Read all about her here and here.

Read the BBC News report

Quite why this made international news is unclear, but the situation in the UK is that this dismissal would likely be fair, if the employer was satisfied that the employee’s behaviour was dishonest. Theft is referred to in the Acas Code of Practice as gross misconduct which might justify dismissal without previous warnings. It is al

In Murphy v Trust Houses Forte Hotels Ltd [1977] IRLR 186 a hotel night porter drank around £8 worth of spirits entrusted to him to dispense to hotel guests. Notwithstanding his intention to make good the employer’s loss, the dishonesty was sufficient to make the employer’s decision to dismiss reasonable.

I once acted in proceedings for an employer who dismissed a long-serving warehouse supervisor of good character when he ate a pack of sweets from a production line. The retail cost of the sweets was around 30 pence. His advisor failed to file the ET1 in time so the case never proceeded to a tribunal, but I remain of the opinion that, all other things being equal, low value cannot displace deliberate dishonesty in rendering the decision to dismiss being within the range of reasonable responses.

I needn’t add any more.

H/T to the Joe. My. God. Blog. Discussion as to whether or not she’s owed her s.86 minimum notice is welcome below!

Employers should note the cautionary tale of Mr & Mrs McVeigh, who appealed to the EAT on a tribunal’s determination that they personally were the employers of their dismissed employee Christine Livingstone. In the right circumstances bringing a claim against two real people can be preferable to proceeding against their small limited company. The question is one of assets available for enforcement, proprietors of businesses often have cars, houses, cottages in the Cotswolds and so on, whereas the limited company might own some desks and chairs.

Mr & Mrs McVeigh had incorporated their limited company, and no doubt their accountant, landlord and taxman respected the fact. However, they completely failed to identify it on any documentation, including the contract of employment, correspondence and payslips. The name of the company only finally surfaced on a P60 produced months late and after proceedings had started.

Lady Smith gives a good summary of whether the question of personality is fact, law, or both:

The question of whether or not a person is employed by A or B is essentially a question of law: who were the parties to the contract of employment? However, answering it will often involve the assessment and evaluation of fact. It is a matter of identifying what was agreed between whom at the commencement of the contract. There may be documentary evidence about that. There may be oral evidence about it. It may a matter of inference from documentary and/or oral evidence. If the parties’ relationship at the outset is recorded in a document then it will be a matter of construing that document (a question of law) and then considering whether there is any other evidence which shows that the parties’ intention at that time was not in fact as the document indicates it was. Thus, where there is evidence in addition to a documentary record of the initial contract, then it is a matter of considering the document and those other facts together (a mixed question of fact and law: Clifford) or it may, depending on the circumstances, be a pure question of fact.

Good HR practices can circumvent these problems, and by that I mean basic research and common sense rather than anything complicated or requiring specialist assistance. The full case can be found here: McVeigh & Anor v Livingstone [2009] UKEAT.

Ian Kerr has now been convicted of not registering as a data controller and fined £5,000 by Knutsford Crown Court. As the Register reports, Kerr’s Consulting Association kept a register of 3,213 workers based on their relationship with other employees, union activities, and plain old troublemaking. 17 building firms used his services, and may now face prosecution themselves.

This draws further unwelcome attention against the fledgling NSDR, which holds details of its members’ employees dismissed for theft, falsification/forgery, fraud, and the hopelessly broad “Causing a loss to the Company or another party” and “Causing damage to Company property”. Its guidelines, which aren’t available for download, also specify that inclusion on the register cannot be sole grounds for refusing to hire an applicant – which is just plain weird. If an otherwise perfect candidate for stock supervisor is on the register for having loaded all the stock at his last work into his mate’s van, then why wouldn’t that be grounds not to hire?

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.

Everyone seems to have overlooked that a register somewhat like this exists anyway, in the form of the National Staff Dismissal Register. I blogged about this back in May and the register would seem to still be in hand, although it has managed to keep out of the headlines. The NSRD was sanctioned by the Information Commissioner after certain safeguards were agreed – and in fairness the scope of behaviour covered is much smaller. Visit its website here.

• Redundancy generally given the downturn, collective consultation and the impact on law firms;
• The British jobs issue at the oil refinery;
• The imminent repeal in April of the dispute resolution procedures, the replacement provisions & the resulting new Acas codes of practice.

 Listen to the podcast here.

• 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.