Tuesday, August 23, 2011

Unfair Dismissal - Not Everyone Deserves The Sack

An Employment Tribunal in Scotland has awarded a "business billing adviser" who was sacked by BT £15,000 in compensation after finding his dismissal for gross misconduct unfair.

Colin Shepherd had a spotless disciplinary record during 22 years service with the company. Nevertheless he was dismissed for a "first offence" of bringing the company into serious disrepute after getting into an argument with a customer on the telephone.

Although he accepted that he had not handled the call in the best way he argued that it was unfair to dismiss him for an out of character incident and that BT had failed to take into account that he was suffering from depression after the sudden death of his father a few months earlier.

The Employment Tribunal agreed that no reasonable employer would have dismissed the Claimant.

The legal test of whether a dismissal for misconduct is fair (once it has been established that the employer genuinely believed on reasonable grounds that the employee was guilty, having conducted a fair investigation) is whether "dismissal is within the range of reasonable responses." It is not for the Tribunal to decide whether they agree with the decision if it was one a reasonable employer could take.

Taking two extremes, any employer is likely to dismiss someone for stealing. No employer will dismiss someone for saying hello to their boss in the morning (unless perhaps they work in a Trappist monastery.) Between those two ends of the spectrum will be cases where employers could reasonably be either strict or lenient, and it is here that the Tribunal is not entitled to second guess the employer's judgement.

Case law indicates that length of service and previous disciplinary record are both factors that any reasonable employer will take into account when making their decision.

The case is a useful reminder that although the "range of reasonable responses" test does allow the employer a fair degree of latitude it does not mean that "anything goes" and there will still be cases where dismissal is an over-reaction. Any employer considering dismissal, especially for a first offence after a long period of service, is well advised to take a deep breath, count to 10 and then see whether they still feel that the punishment fits the crime.

There is a report on the case here.

Friday, August 12, 2011

Its Not What You Come to Work For!

A German group has called for kissing to be banned in the workplace.

The Knigge Society (whose name comes from a German word for good manners) campaigns on matters of etiquette. They have in the past expressed opinions on topics such as how to end a relationship by text message (is that ever acceptable?)

They say they have received emails from workers concerned about the practice of greeting colleagues and business contacts with a kiss on the cheek. The suggestion is that this is un-German behaviour and that it would be safest to limit onesself to a handshake.

This could have some interesting consequences if a similar thing happened in the UK.

Under UK law, unwanted conduct related to sex which has the effect of violating a person's dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for them amounts to unlawful sex discrimination by way of harassment.

Whilst recent case law stresses that this means serious things rather than petty slights, and a one-off unwanted peck on the cheek would be unlikely to lead to any consequences, someone who persisted in greeting a colleague in this manner when it had been made clear by the recipient that they did not like it could find themselves in trouble (and by extension their employer in trouble unless the latter had taken all reasonable steps to prevent the discrimination.)

And what about someone from a Mediterranean country who complains that being banned from greeting someone in this way is discriminating against them? If this is how someone from that culture is used to greeting people then a ban could (possibly) be argued to put them at a disadvantage compared to people from a North European/Anglo-Saxon background where a handshake is the order of the day. If so then it would come down to whether a ban on the practice was a proportionate means of meeting a legitimate aim (presumably the legitimate aim of avoiding giving offence to customers and colleagues.)
The BBC report is here.

Tuesday, August 09, 2011

Employment Law Implications of Riots

London and a number of other English cities have been hit by a wave of riots in the last few days.

This may have employment law implications both for the victims and the perpetrators (or at least those amongst the rioters who do not form part of the unemployed "underclass" as the tabloids would describe them.)

If you lose your job, or your business, because the premises are burned down then this may well amount to the "frustration" of the contract of employment. This arises where as a result of an unexpected event outside of the control of the parties the performance of a contract becomes impossible. The problem from an employee's point of view is that frustration brings the contract to an end without it being termination by the employer. This means there is no right to notice, let alone notice pay (although they will be entitled to statutory redundancy pay, which can be recovered from the Government if the employer is unable to pay.)

Because of the drastic consequences of frustration for the employment contract Courts and Tribunals can be reluctant to find that it has arisen. Factors that would be taken into account would be whether the business has permanently closed or whether the contract can be performed from other premises.

A slightly different issue would be what happens if someone cannot attend work for a more limited period because of rioting. This might include a situation where they are sent home because the Police "lock down" an area. Is the employee entitled to be paid?

This would depend on the employee's contract, but in most cases there is unlikely to be an express written term covering this eventuality. As such one has to look at the implied, unwritten, terms. An employee who is "ready, willing and able" to work is usually entitled to be paid. If the employer sends them home because of a riot then the employee will normally be entitled to be paid. If the employee chooses to go home, or cannot get to work because there is no public transport, then they will normally not be entitled to be paid.

Turning to perpetrators, the question here will be whether their employment can be terminated as a result of them being convicted or accused of an offence outside of work. If someone is sentenced to a term of imprisonment then depending upon the length of the sentence this might frustrate the contract (see above.) If it does not, then the guidelines indicate that conviction for an offence outside of work will not automatically lead to a fair dismissal.

The question will be whether the offence means that they are not suitable for their employment any more. Someone convicted of a minor public order offence could not necessarily be fairly dismissed if they work as, say, a shelf stacker in a supermarket. Arguably a teacher of an inner city class of teenagers who was convicted of any involvement at all might be at greater risk. Another consideration is whether it reflects on the employer's reputation. A postman looting seen pushing and shoving a Police line whilst wearing a Royal Mail top might be leaving himself more exposed than someone whose attire does not give the public any idea who they work for.