June Case Round Up

In this month’s ENews we consider whether a flawed disciplinary process can be rectified following an appeal hearing and a finding of unfair dismissal; whether an employer’s lack of knowledge of it’s obligation to inform and consult avoids an award of damages; and whether an employee has a duty to advise their employer of allegations of misconduct.

Can a flawed disciplinary process be rectified at an appeal hearing?

This was considered by the Employment Appeal Tribunal (EAT) in the case of Adeshina v St George’s University Hospital NHS Foundation Trust. In this case, the Claimant, Ms Adeshina, was the principal pharmacist employed by the Respondent, St George’s University Hospital NHS Foundation Trust. She was involved in leading a project to consider different ways in which the pharmacy services were to be provided. She was resistant to the change and this was the context, which led to the disciplinary proceedings and ultimately her dismissal.

The Claimant appealed the decision on the grounds that there were a number of procedural failings. The appeal was to be heard by three senior managers. The Claimant was concerned about the appointment of one of the panel members who had been involved in part of the allegations that the Claimant was subject to. The appeal hearing proceeded and was a re-hearing. The decision to dismiss was upheld.

The Claimant brought a number of claims in the Employment Tribunal including that of unfair dismissal which was subsequently appealed to the Employment Appeal Tribunal.

The Claimant argued that the procedure at the disciplinary hearing had been so seriously flawed that it was not capable of being remedied on appeal. The Employment Appeal Tribunal disagreed. It held that the flaws in the

disciplinary process had been remedied at the appeal hearing.

In terms of the composition of the appeal panel, the EAT considered the composition of the appeal and acknowledged that often senior managers have responsibility for a number of employees and therefore it would be difficult to avoid connections.

This case is good news for employers and highlights the importance of having a robust appeal process in place to ensure that any alleged procedural flaws during a disciplinary process are rectified during the appeal hearing. It is also helpful that the EAT has acknowledged the difficulties of identifying senior managers who have not had any involvement previously with an employee involved in a disciplinary process.

Whether an employer can argue that it was not aware of its obligations to inform and consult to avoid a paying compensation to its employees

This issue was considered in the case of E Ivor Hughes Educational Foundation v Morris and Others.

At a meeting with the School Governors in February 2013 the issue of whether the school should remain open was discussed. In April 2013 this was again considered, and as the numbers of pupils registered for the following academic year were lower than anticipated it was decided at this meeting that the school would close in July 2013. The staff were issued with notice of dismissal on 29th April 2013; their employment ending on 31st August 2013. No consultation was undertaken as the School Governors were not aware of the school’s obligations to inform and consult.

Where an employer proposes to make 20 or more employees redundant within a period of 90 days or less it must consult on its proposal with representatives of the affected employees. Representatives can either be a recognised union or elected employee representatives. The purpose of the consultation must be:

  • with a view to reaching agreement;
  • avoiding the need for dismissals;
  • reducing the number of employees to be dismissed; and
  • mitigating the consequences of dismissals.

Where the duty to collectively consult has been breached a Tribunal may make a protective award, the maximum award is 90 days actual gross pay for each dismissed employee. Where there has been no consultation at all it is appropriate for the Employment Tribunal to start with the maximum award of 90 days pay.

Where there are special circumstances, which render it not reasonably practical for the employer to comply with the requirement of consultation, the Tribunal may consider not making an award. In this particular case no collective consultation was carried out because the School Governors were not aware of their legal obligation to consult.

The Employment Appeal Tribunal rejected the submission by the school that there were special circumstances because of their lack of knowledge and ordered the school to pay 90 days gross pay to each employee.

Is an employee obliged to advise its employer that he/she is subject to allegations of misconduct?

The EAT in the case of the Basildon Academies v Amadi considered whether an employee was under an implied duty to disclose an allegation of misconduct to his employer where there are no contractual obligations to do so.

The Claimant, Mr Amadi worked as a tutor for Basildon Acadamies (BA) two days a week. In September 2012 Mr Amadi started working at Richmond-upon-Thames College (the College) in addition to his employment with BA. He did not advise BA of his employment with the College.

In December 2012, Mr Amadi was suspended by the College following accusations by a female pupil that he had sexually assaulted her.

In March 2013 the police contacted BA to make enquiries about his employment and informed them that Mr Amadi had been suspended from his employment with the College. BA suspended and dismissed Mr Amadi for breach of contract on two grounds firstly for not advising them of his employment with the College and secondly, not advising them of the allegation of sexual misconduct.

The EAT upheld the Employment Tribunal’s decision that Mr Amadi had been unfairly dismissed but that he had contributed to his dismissal by 30% for failing to advise BA of his employment with the College.

The Employment Appeal Tribunal held that Mr Amadi was under no implied obligation to disclose the allegations against him and therefore this did not amount to breach of contract and therefore rendered the dismissal unfair. This is a very harsh decision as it is clear that this is an issue of trust and confidence. This case might have been decided differently if there was a well-drafted policy in place to ensure that applicants and employees are under a duty to disclose allegations of misconduct, particularly when teaching and/or caring for vulnerable people.

In the news….

Government set to bring forward plans to double free childcare for working families.

In a press release dated 1 June 2015, David Cameron announced plans to double free childcare for working parents with the benefits starting as early as next year.

Under the plans, parents are set to benefit from 30 hours of free childcare with the rollout to start from 2016 (a year earlier than planned).

The Childcare Bill, introduced on 2 June 2015 will double free childcare available for all working parents of 3 and 4 years olds, to 30 hours per week. This will be available to up to 600,000 families where both parents or a lone parent all work.

Employment Tribunal quarterly statistics for January to March 2015.

The Ministry of Justice has published its quarterly report on the numbers of claims received by the Employment Tribunal between January to March 2015.

These statistics help to highlight the further impact of the fees regime, introduced on 29 July 2013, and Acas early conciliation which became mandatory on 6 May 2014.

The report shows that, in relation to single claims:

  • 4,229 single claims were received in January to March 2015. This is 25% fewer claims than in the same period of 2014.
  • Overall, there were 16,456 single claims received in 2014/2015, a decrease of 52% on 2013/2014.
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In relation to multiple claims:

  • 16,104 multiple claims (where two or more people bring claims which are processed together) were received in January to March 2015. This is three times the number of multiple claims received over the same period in 2014.
  • Overall, there were 44,850 multiple claims received in 2014/2015, down 37% on 2013/2014. These related to a total of 2,062 multiple claims cases, which is down 34% on 2013/2014.
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In relation to the disposal of cases between January to March 2015:

  • Cases that were dismissed on withdrawal accounted for 13% of all disposals.
  • Cases that there dismissed by the Tribunal, or where the case was discontinued, accounted for less than 1% of disposals.
  • Cases conciliated through ACAS accounted for 29% of disposed claims.

If you have any questions in relation to this briefing please contact Sejal Raja (sejal.raja@rlb-law.com) or Alexandra Gess (alexandra.gess@rlb-law.com).

June 2015
© RadcliffesLeBrasseur


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.