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Reasonableness of decision to dismiss

In this month’s E-News, we consider whether restrictive covenants contained in an unsigned contract of employment are enforceable, whether a comment in a newsroom amounted to harassment on the grounds of religion, and consider the reasonableness of the decision to dismiss. In the news, we look at the key employment law changes that took effect on 1 October 2012.

Reasonableness of decision to dismiss

In Nejjary v Aramark Limited, the Employment Appeal Tribunal considered whether an Employment Tribunal can take into account reasons other than those in the mind of the dismissing officer, in finding that an employee’s dismissal was fair.

Mr Nejjary worked as a hospitality manager for Aramark Limited which provided services to Goldman Sachs. In September 2009, Mr Nejjary was suspended on full pay and subsequently dismissed because he failed to check a booking sheet for one of the events, which led to a complaint from Goldman Sachs.

Mr Nejjary brought a claim in the Employment Tribunal for unfair dismissal.

The Employment Tribunal rejected Mr Nejjary’ s claim and stated that, had he had an unblemished record or a record of minor but unrelated matters, his dismissal in relation to the incident would have been outside the range of reasonable responses. However, taking into account the fact that he had received a warning about exactly the same issue for which he was dismissed, it was reasonable for Aramark to treat his conduct as a sufficient reason for dismissal. The Employment Tribunal also held that even if the dismissal was unfair, Mr Nejjary’ s conduct would have led to his dismissal and as such it would not be just and equitable to award compensation.

Mr Nejjary appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal upheld Mr Nejjary’s appeal. It held that the Tribunal found only one reason for Mr Nejjary’ s dismissal, his failure to check the booking form in respect of a breakfast meeting, and that this was not sufficient in itself to dismiss. However, when applying the reasonable test, the Tribunal erroneously included issues, which Aramark had not had in its mind when dismissing Mr Nejjary. The Tribunal should have confined itself to the specific reason for dismissal and considered whether that reason was sufficient to justify the termination of Mr Nejjary’s employment. In relation to the appeal relating to contributory fault the Employment Appeal Tribunal held that, when assessing contributory fault, a Tribunal should only consider matters that related to the dismissal. Mr Nejjary could not have contributed to his dismissal by matters which did not play a part in Aramark’s decision to dismiss.

This decision is helpful reminder to employers that the test is one of reasonableness and employers should take into account previous warnings when taking a decision in disciplinary matters.

Harassment on the grounds of religion

In the case of Heathfield v Times Newspaper Limited, an Employment Tribunal considered complaints of harassment and victimisation on the grounds of religion and belief arising out of a comment about the Pope, which was shouted across a newsroom by a senior sub-editor. This is only a first instance decision but provides helpful reminder as to how tribunals treat claims of harassment.

Mr Heathfield worked shifts for the Times as a casual sub-editor. In March 2010, the Times was working on a story concerning an allegation that the Pope had, in a previous role, protected a paedophile priest. This story was allocated the working title “The Pope”. As the deadline approached for the newspaper to go to print, the senior editor realised that he had not seen the story. He shouted across the newsroom to the senior production team, “Can anybody tell me what’s happening to the “f…..g Pope?”. When no one responded, he repeated the question again raising his voice.

Mr Heathfield did not complain about the comment at the time. However, on 15 March 2010, he sent an email complaining that, as a Catholic, he found it to be offensive, unnecessary and blasphemous. The complaint was acknowledged and but not investigated. Mr Heathfield did not pursue the matter.

In April 2010, Mr Heathfield had not been allocated any shifts. Although he was allocated shifts in May 2010, Mr Heathfield did not report for his shift having made a decision that he no longer worked for the Times.

Mr Heathfield brought claims against the newspaper on the grounds of his religion and belief for harassment on the basis of the comment made by the senior sub editor and victimisation because he was not allocated shifts in April 2010.

The Employment Tribunal dismissed all of Mr Heathfield’ s complaints.

Although the comment offended Mr Heathfield, the Tribunal found that the sub editor had not intended to cause offence; his comment was entirely non-personal as its subject was the whereabouts of the article rather than the Pope himself. In terms of statutory definition of harassment, this was unwanted conduct and there was no doubt that the comment had the effect of upsetting Mr Heathfield. However, in applying the objective part of the definition, the Tribunal found that it was not reasonable for the comment to have the effect of creating a hostile, intimidating, degrading, humiliating or offensive environment for Mr Heathfield.

In order for victimisation to be made out, Mr Heathfield needed to show that he had suffered a detriment as a result of making a complaint. This was not made out in evidence.

This case highlights that whilst some employees who may be sensitive and may be offended by comments the objective test for harassment means that even if the unwanted conduct has the effect of being offensive it will not be harassment unless it can be reasonably considered to have that effect.

Enforceability of restrictive covenants in an unsigned contract of employment

The case of FM Farnsworth Limited and Another v Lacy and Others, considers whether an employee should be bound by the restrictive covenants contained in a new contract provided to him after he had been promoted that he had not signed.

Mr Lacy was employed by Northern Foods Limited and worked at its subsidiary FM Farnsworth Limited. In April 2009, Mr Lacy was promoted to site technical manager. At the end of September 2009, some five months after his promotion took effect; Mr Lacy was asked to sign a new contract of employment. This contract contained post-termination restrictive covenants, which were not included in his previous contract of employment. In addition, the new contract provided for additional benefits that were not available to Mr Lacy prior to his promotion. This included the right to apply for medical insurance cover for both Mr Lacy and his family.

Mr Lacy did not sign the contract of employment nor did he raise any objections to the contract.

Mr Lacy subsequently applied for medical insurance cover.

In March 2012, Mr Lacy resigned in order to join a competitor. The Company brought proceedings in the High Court to enforce the post-termination restrictions, which prohibited Mr Lacy from working for a rival business and soliciting defined customers in the six months following the termination of his employment.

The court held that Mr Lacy was bound by the 2009 contract and therefore the post-termination restrictive covenants contained within it. The court concluded that because of Mr Lacy’s actions in applying for private medical insurance cover; he accepted the terms of the contract and was bound by them. If Mr Lacy had not applied for the private medical insurance cover, it appears that the court would have found that he was not bound by the 2009 contract and therefore the post-termination restrictions in it.

This case highlights the importance of requiring employees to sign and return contracts of employment particularly where a new contract has been issued on promotion. The reason being is that the mere fact that an employee continues to work after the contract has been issued will not usually be sufficient as this can also be deemed to be consistent to working under the old contract.

In the news

The key changes that were implemented on 1 October 2012 include:

1. Pensions auto-enrolment.

All employers have to enrol into a work place pension, workers who:

are not already in a qualifying workplace pension scheme;
are aged 22 or over;
are under State Pension age;
earn more than a minimum amount a year (£8,105.00 in 2012 –13); and
work or usually work in the UK.

The new provisions will be formally implemented over 4 years starting on 1 October 2012 with larger employers being affected before smaller employers and new businesses.

If you require any further advice as to how these changes impact your organisation, then please do not hesitate to Sejal Raja.

2. National Minimum Wage

The National Minimum Wages rates increased from 1st October 2012.

Standard adult rate

The rate applies to workers aged 21 and over and increases to £6.19 from £6.08.

Workers aged between 18 – 20

This stays the same at £4.98.

Workers aged under 18

The younger workers’ rate stays the same at £3.68.

The apprentice rate

This increases to £2.65 from £2.60.

Please contact Sejal Raja if you have any questions in relation to this article.

Sejal Raja
t: 020 7227 7410
© 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.