Thursday, March 14, 2013

Sick Swimmer's Shark Sacking

The BBC reports that a 62-year old charity worker has been summarily dismissed by the Boys and Girls Club for which he had worked for 10 years after he was filmed saving lives in Australia by wrestling with a shark.

Paul Marshallsea from Merthyr Tydfil was off sick from work with stress at the time.

It appears that on his return to the UK he was greeted by a letter on the doormat at home informing him that he had been dismissed because the incident had allegedly destroyed his employer's trust and confidence in him.

The dismissal appears to have taken place without any investigation or disciplinary hearing.

Save and except in the most exceptional case (e.g. where someone is caught literally with their hands in the till in the act of stealing where there is no possible mitigation or alternative explanation) any dismissal which takes place without a hearing is virtually certain to be found to be unfair.

The employer might try and argue that had it followed a fair procedure then it would inevitably have fairly dismissed Mr Marshallsea anyway, and that he should therefore get no compensation.

We shall have to wait and see how this case develops but on the face of it this is not a clear "been caught stealing" case and it is difficult to see that the outcome would inevitably have been fair dismissal. No medical investigation was carried out into whether Mr Marshallsea's actions were inconsistent with his sick note. The fact that he was off sick with stress does not mean that he should not have gone on holiday - quite often the medical advice will be to have a change of scenery. It is not the same as, for example, someone who is allegedly off work with a broken leg but is filmed playing football.

Although it is possible to dismiss someone for "swinging the lead" employers should only do this in the clearest of cases or where there is medical evidence to substantiate the allegation - and certainly not by means of a letter which is waiting for the employee when they fly back into the country.

One other thing which is interesting is the apparent reference in the dismissal letter to trust and confidence. There seems to be a growing tendency for employers to use this as a justification for dismissal as if it in some way dilutes the necessity to prove that the employee has done something wrong. Tribunals are becoming wise to this. If the allegation is of misconduct then the employer should say so, and be prepared to justify it on the evidence.

Tuesday, March 12, 2013

Court of Appeal Confirms "Double Jeopardy" Decision

Last May I reported on the Employment Appeal Tribunal decision that it had not been unfair for two social workers involved in the "Baby P" case to be dismissed for gross misconduct even though they had previously been given a written warning in respect of the same case.

In essence after the initial simplified process a new manager had come in and had taken the view that the original sanctions had been too lenient and that further disciplinary action was justified. This led to Mrs Christou and Ms Ward being summarily dismissed, a decision which was upheld on appeal.

The Employment Tribunal found the dismissals fair and the EAT agreed.

The Court of Appeal has now rejected Mrs Christou and Ms Ward's appeal against the EAT's decision.

The appeal to the Court of Appeal was based on three arguments (putting to one side an allegation of bias which was also rejected) - i) that the legal principle of res judicata applied and the second decision was invalid as it was reopening the first disciplinary procedure; ii) that to discipline the Claimants again was an abuse of process; iii) that the Employment Tribunal's majority decision gave inadequate reasons for finding that it was fair to reopen the process.

The Court of Appeal found that the principle of res judicata did not apply. Disciplinary procedures in the workplace are not the adjudication of a dispute, they are a means of an employer determining whether an employee has done something wrong or not. As such save in exceptional circumstances (e.g. where an outside arbitrator is appointed) the principle is not applicable.

With regards to abuse of process, it was questionable whether the principle was applicable but even if it was it was not an absolute bar and the onus was on the Claimants to show that there was an abuse. In essence this did not take matters very much further forward - the Tribunal basically had to decide whether instigating a second set of proceedings was fair. If it was, then it was (probably) not an abuse of process. If it was not fair then it does not really matter whether that is called an abuse of process or not.

The Court went on to hold that even if res judicata had applied it would still have been necessary to consider whether the dismissals were fair. They would not cease to have happened just because the Respondent had reopened the matter in breach of the principle.  In most cases if res judicata applied the Tribunal would be likely to find that it was an abuse of process and unfair - but this was not inevitable. Once again, in reality the question comes back to whether it was fair to reopen the matter.

In this case the Court found that the Tribunal had given perfectly adequate reasons as to why it had been fair to reopen the matter. The allegations on the second occasion were not the same as and were more serious than the ones which were considered on the first occasion and given the risk to the public dismissal was within the range of reasonable responses.

The case is not authority for the proposition that it will always be fair to reopen a disciplinary process where a more serious view of events is taken at a later stage. In fact if anything it strongly implies that this will very often (perhaps even usually) be unfair and that the fact that dismissal might be reasonable on the second occasion does not mean that the initial procedure was defective.

Any employer wanting to reopen a disciplinary matter where the employee has done nothing else wrong since the first decision was handed down would be well advised to tread carefully and to take specialist advice.