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Case Round Up

In this month’s E-news, we consider whether an employer can increase an employee’s disciplinary sanction on appeal, in circumstances where the employer’s contractual disciplinary procedure does not allow for this; whether an employer should have ignored a disabled employee’s final written warning for sickness absence, as part of their duty to make reasonable adjustments and finally, we look at the first reported case in which the Tribunal rejected a claim for non-compliance with the Early Conciliation (“EC”) Rules.

In the case of McMillan v Airedale NHS Foundation Trust, the Court of Appeal considered whether an employer is able to increase an employee’s disciplinary sanction on appeal, despite the fact that the employer’s disciplinary policy did not expressly allow them to do this.

Ms McMillan’s employment contract incorporated the Trust’s disciplinary procedure, which was silent on whether the Trust could increase a disciplinary sanction on appeal. The procedure also listed the ACAS Code as an associated policy, which confirmed that Ms McMillan could appeal a warning / dismissal, but that there would be no further right of appeal.

Ms McMillan was found to have committed misconduct and was issued with a final written warning. When Ms McMillan appealed the final written warning, she was informed that the appeal panel would re-hear the evidence and determine the outcome “in terms of the sanction applied”. The appeal panel upheld the allegations and Ms McMillan asked for a full re-hearing. The Trust rejected this request and informed her that they were deliberating over the sanction, as her conduct had breached trust and confidence and they felt her employment with the Trust was no longer tenable.

Ms McMillan applied for an injunction in the High Court to prevent the Trust from increasing the sanction, highlighting that the disciplinary policy did not give them the power to do this. Ms McMillan also argued that the Trust would be in breach of the ACAS Code, if they imposed an increased sanction with no further right of appeal.

The High Court agreed that the Trust was not entitled to increase the disciplinary sanction under the contractual procedure and granted the Claimant an injunction, restraining the Trust from reconvening the appeal panel.

The Trust appealed and the Court of Appeal unanimously dismissed the appeal on the same grounds.

This case highlights that the courts will take a restrictive approach when interpreting disciplinary procedures and that employers will not be able to rely on ‘silent’ provisions, which fail to confirm the position one way or the other.

As such, employers that wish to retain the right to increase disciplinary sanctions on appeal will need to expressly include this in their disciplinary procedures.

In the case of Thomas v Nationwide Building Society, the Claimant brought a claim for whistleblowing and filed it at the Tribunal without first seeking to conciliate under the compulsory Early Conciliation (‘EC’) procedure, which was introduced in May 2014. The Claimant believed that whistleblowing claims were exempt from the EC procedure, however, she was mistaken and her failure to conciliate resulted in Employment Tribunal rejecting her claim on the basis that they did not have jurisdiction to hear it.

However, the Claimant argued that she could comply with the EC procedure retrospectively and rectify the procedural defect.

The Employment Tribunal agreed with this reasoning. Despite the fact that retrospective compliance defeated the point of it being ‘early’ conciliation, the Tribunal held that belated compliance with the EC process was still ‘pre-claim’, since the original claim had been rejected. The Tribunal also dismissed the Respondent’s claim that the Claimant’s claim would have to be presented afresh, since the Employment Tribunal Rules (Rule 13) confirm that defective claims can proceed, once the defect has been rectified.
However, importantly, the Tribunal ruled that the Claimant’s claim would be recorded as having been presented on the date that the defect was rectified. As such, whilst the Claimant did not need to present a new ET1 (and incur the issue fee), the Tribunal will now need to decide whether her claim (or parts of the claim) have been presented out of time.

Therefore, despite the fact that the Claimant was able to overcome this technical hurdle by completing EC after she had filed the claim, her claim could still be rejected on the basis it is out of time.
This case gives an indication of the Tribunal’s approach to the new EC procedure and highlights the potentially disastrous consequences for employees who fail to comply with it. It also marks another step towards fewer and fewer claims reaching the Employment Tribunal, which is welcome news for any employer.

In the case of General Dynamics Information Technology v Carranza, the Employment Appeal Tribunal (EAT) considered a disabled employee’s claims for failure to make reasonable adjustments and unfair dismissal.

The Claimant was disabled within the meaning of the Equality Act 2010. He had received a final written warning for repeated sickness absence, most of which was disability-related. Following the final written warning, the Claimant had two short periods of disability related sickness absence (which resulted in no further disciplinary action), followed by three months’ sick leave with a shoulder injury, which was unrelated to this disability. He was subsequently dismissed. The Claimant appealed his dismissal but was unsuccessful. Following this, he brought claims in the Tribunal for unfair dismissal and disability discrimination.

The Tribunal found that the Respondent had a policy of requiring consistent attendance at work and that this policy placed the Claimant at a substantial disadvantage when compared to non-disabled persons. As such, the Tribunal held that it would have been a reasonable adjustment for the Respondent to disregard the Claimant’s final written warning and that the Respondent was in breach of its duty to take ‘steps’ to avoid the disadvantage suffered by the Claimant (s.20 (3) Equality Act 2010). The Tribunal also held that the Claimant’s dismissal was unfair, because the Respondent had not reviewed the final written warning before dismissing him.

The Respondent appealed on both grounds.

The EAT allowed the appeal in relation to both claims, finding that the Tribunal had erred in finding that it would have been a reasonable adjustment to ignore the Claimant’s final written warning. The EAT found that the mental process of ignoring a disciplinary sanction was not the type of ‘step’ envisaged by the Equality Act, which employers could implement as reasonable adjustments. Further, the Tribunal had set out no basis on which to conclude that it was reasonable to disregard the prior warning.
Finally, the EAT overturned the Tribunal’s unfair dismissal finding, on the basis that employers are not required to re-open a final written warnings, except in limited circumstances.

Fortunately for employers, this case confirms that employers will not be required to ignore a disabled employee’s disciplinary record, as part of their duty to make reasonable adjustments. Notwithstanding this, it is important for employers to ensure that they consider other reasonable adjustments for employees who are suffering from a disability.

In the News…

The National Minimum Wage rates were amended on 1 October 2014, as follows:

Standard adult rate (minimum hourly rate) Development rate (minimum hourly rate) Young workers rate (minimum hourly rate) Apprenticeship rate (minimum hourly rate)
1 October 2014 – 30 September 2015 £6.50 £5.13 £3.79 £2.73
1 October 2013 – 30 September 2014 £6.31 £5.03 £3.72 £2.68

Please join us…

The Employment Department will be holding its Annual Employment Seminar on 20 November 2014, at which we will be considering recent employment law developments and the impact on organisations.

Clients can attend the workshop free of charge. For delegates who are not clients there is a charge of £50 (inclusive of VAT).

Please join us at our Westminster office at 4.30 pm (for a 5pm start), on 20 November 2014.

If you would like any further assistance in relation to this article of the annual seminar, please contact:

Sejal Raja
020 7227 7410

October 2014
© RadcliffesLeBrasseur


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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