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Unfair dismissal: guidance on disciplinary procedures given by Court of Appeal

In this month’s Employment Law News we look at an unfair dismissal case which addressed the adequacy of an investigation, suspension and referrals to the police. We also look at a case which gives useful guidance on determining when TUPE applies. We also answer questions on vicarious liability. Finally, there is the usual round up of important employment law news.

Unfair dismissal: guidance on disciplinary procedures given by Court of Appeal

A recent judgment by the Court of Appeal (Crawford and another v Suffolk Mental Health Partnership NHS Trust) gives useful guidance to employers about the procedures that should be applied when issues of misconduct arise.

Two nurses were employed by the Mental Health Trust and they worked on a ward dealing with patients suffering from depression, anxiety or depression. It was alleged that the nurses tied a patient, who was suffering from dementia, to a chair with a sheet. Both nurses were suspended, pending further investigation, for “alleged assault of a client” and the matter was also referred to the Police. The Trust suspended its own investigation pending the Police investigation. One month later, the Police confirmed that they would not be taking action against the nurses. The Trust then resumed its investigations which took a further couple of months. The nurses were then called to a disciplinary hearing. Both nurses accepted they had tied the patient’s chair to the table but they denied tying him to a chair with a sheet. One of the nurses gave an explanation as to how a sheet had been wrapped around the patient’s chest. The disciplining officer tested the nurse’s theory (without informing the nurse) but did not believe the sheet could be wrapped in the way the nurse explained. Both nurses were dismissed for assault (even though this was not one of the charges identified in the letter inviting them to a disciplinary hearing), negligence and professional misconduct.

Their internal appeal failed and they lodged a claim at the Employment Tribunal hearing alleging unfair dismissal. The Employment Tribunal held that the nurses had been unfairly dismissed. The Employment Appeal Tribunal (EAT) held they had not been unfairly dismissed. The Court of Appeal determined the nurses had been unfairly dismissed. The Court of Appeal held that given the seriousness of the allegations which would affect their ability to continue to work as nurses, it was right that the Employment Tribunal looked carefully at the procedures followed by the Trust. The Court of Appeal also agreed that the ‘experiment’ carried out by the disciplining officer ‘testing’ the nurse’s theory about the sheet was unfair; he should have informed the nurse of it and she should then have been given an opportunity to demonstrate what had occurred.

The Court of Appeal also considered the Trust’s decision to suspend the nurses and stressed that suspension must not be a knee jerk reaction, even where there is evidence supporting an investigation. Particular consideration should have been given to the unblemished service of the relevant staff when assessing future risk. In addition, the Court was critical of the Trust’s decision to refer the matter to the police. It was noted that such a referral would put an employee under considerable stress and as such should only subject the employee to that burden if, after very careful consideration, the employer holds a genuine and reasonable belief that the case, if established, might justify the epithet ‘criminal’ being applied to the employee’s conduct.

What lessons can be learned from the case? It is clear that where a case involves very serious allegations, particularly those affecting a future career, the Employment Tribunal will subject the procedures to careful scrutiny. It is therefore very important that the investigation is thorough, that any conflicting evidence is resolved and that the decisions reached by the disciplining officer are fair and reasonable.

In addition, if further enquiries are carried out, the employee should be notified of these and given an opportunity to respond to them. Finally, consider matters very carefully before suspending or referring to the police and consider the employee’s length of service and any previous disciplinary record.

TUPE: Organised grouping of employees

TUPE is something that sends shivers down many HR professionals (and employment lawyers!) spines. It is a timely topic given the number of reorganisations and contracts that are being negotiated in the current climate. A recent EAT case, (Eddie Stobart Limited v Morman), will, hopefully help employers decide whether there has, or will be, a TUPE transfer of employees following re-allocation of a service contract (also known as a service provision change). The EAT had to decide whether TUPE applied, and therefore the employees transferred, when a contract was outsourced from one contractor to another.

TUPE can apply when a client engages a contractor to do work on its behalf; when it reassigns such a contract; or when the work is brought back in house, provided, in respect of each of the three scenarios, certain conditions are met. One of the conditions is that there must be “an organised grouping of employees” whose “principal purpose” is carrying out the work on behalf of the client. The question the EAT had to look at was what those two phrases actually meant.

Eddie Stobart Limited had 35 employees at one site in Nottinghamshire servicing at least five clients. They then lost three of the contracts, leaving just two contracts, the principal one relating to Vion. Eddie Stobart Ltd decided to close the Nottinghamshire site and an incoming contractor picked up the Vion contract. Eddie Stobart Ltd took the view that all employees’ engaged wholly or more than fifty per cent of their time on Vion work should transfer to the new contractor.

Staff at the Nottinghamshire site worked according to shift patterns. Those working on the day shift worked principally on the contract for Vion. Eddie Stobart Ltd therefore determined that the day-shift employees, and anyone who worked more than fifty per cent of their working time on Vion work were an organised grouping of employees whose principal purpose was the carrying out of the Vion work.

The EAT gave useful guidance for employers. In short, the fact that a group of employees worked mostly for a particular client will not satisfy the legal requirement that there be an “organised grouping of employees”. It must be shown that the employees are deliberately organised into an identifiable client grouping. In other words, organised by reference to the requirements of the particular client. In the Eddie Stobart case, the day-shift employees did spend most of their time working for a particular client, but were organised according to their shifts, and not according to the requirements of the client. Therefore TUPE did not apply.

Vicarious liability: It wasn’t me it was my employee.

Several recent high profile cases have examined the question of what employee acts an employer can be liable for and set out below are some frequently asked questions.

Employers have traditionally been held responsible for the acts of their employees, or anyone who contracts personally to carry out work for the employer, such as self employed contractors. In this note, self employed contractors and employees are referred together as “employees”.

Recently, the High Court clarified that responsibility for another person’s actions could be attributed to an employer, even without an employment relationship.

In JGE v The English Province of our Lady & Another the High Court decided that a diocese could be legally responsible for the abusive acts of a priest, even though he was not an employee or a self employed contractor because the relationship was ‘akin’ to employment.

Employers will be responsible when the acts are done ‘in the course of employment’. The problem for employers is that the Courts interpret this phrase very broadly. For example, the Court of Appeal has ruled that racist acts, which had nothing directly to do with the work that the employee was employed to carry out, could still have been carried out in the course of employment, making the employer liable for them.

The recent case of Metropolitan Police v Weeks illustrates how responsibility for an employee’s discriminatory acts can arise. In this case:

(i) the claimant was a Senior Crime Intelligence Researcher, employed by a chief police officer, but line managed by a detective sergeant. The detective sergeant turned down the claimant’s application for flexible working and requested that her shift allowance should be stopped as well. The claimant alleged that the chief police officer was liable for the detective sergeant’s discriminatory acts

(ii) the Employment Appeal Tribunal decided that as the chief police officer was aware of the detective sergeant’s decision, it was no ‘major leap’ to come to the conclusion that the detective sergeant had acted on the chief police officer’s instructions and with his consent, so that the chief police officer could be liable for the detective sergeant’s actions.

In some circumstances, the employer may be held liable for an employee’s actions even though they take place away from the working environment. For example, an employee successfully sued her employer when she was subjected to sexual harassment by a colleague in a pub, where employees had gone after the end of their shift.

The recent decisions in the joined cases of Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Designs Ltd demonstrate how an employer can be liable for an employee’s violent behaviour in the workplace and also shows where the limits of an employer’s responsibility lie:

(i) in the Wallbank case, the employer was held to be legally responsible for an employee attacking his manager after being given an instruction. The violence was said to be in the course of employment because it was closely related to the employment in time and it took place in the workplace.

(ii) in the Wedall case, the employee drunkenly rode to work on his bicycle and then violently attacked his manager for ringing him to enquire if he could volunteer for a night shift. The violence was not in the course of employment but was the employee’s independent venture.

It is important that employers have a clear disciplinary policy that sets out examples of what may constitute unacceptable behaviour within the workplace and explain that this includes off-site behaviour in a business context.

Employers can avoid liability for discriminatory acts by employees, by demonstrating that they have taken reasonable steps to prevent discrimination, for example either by dealing with the particular situation in question (e.g. using grievance procedures), or more generally by providing training for employees. Equal Opportunities training is not only essential but also raises awareness amongst employees of what amounts to inappropriate actions and it also allows employers to submit a defence that they are not liable for an employee’s discriminatory acts.

Please contact our Employment Team if you would like to discuss this or any other training needs.

In the news

Unfair dismissal law: changes to qualifying period

Draft regulations making a significant change in unfair dismissal law have now been published. As mentioned in our January edition, all employees employed on or after 6 April 2012 will have to wait two years (rather than the current one year) to reach the qualifying period to bring a claim for unfair dismissal. Employees whose period of continuous employment began on or before 5 April 2012 will still be subject to the one-year qualifying period.

The increase in the qualifying period has been justified by the Government as a way of increasing recruitment. Many employment lawyers believe it will just mean tribunal claims of a different kind (such as discrimination or whistle blowing) which do not require an employee to have any period of service to bring a claim. We shall have to watch this space.

Unfair dismissal law: Employment Judges to sit alone to hear unfair dismissal claims

The Government has published draft legislation which will allow claims of unfair dismissal to be heard by an Employment Judge sitting alone. It is hoped that this will speed matters up, and that cases will be heard much more quickly than at present. However, the new legislation does allow a full tribunal to hear the case in certain cases, including where there is likely to be a dispute arising on the facts or issues of law that would make it desirable to be heard by a full tribunal. The change will take effect from 6 April 2012, subject to Parliamentary approval.

Minimum wage to be frozen?

David Cameron is considering freezing the national minimum wage (NMW). This is to be given consideration as part of the Government’s strategy to kick start recruitment and encourage employers to recruit more staff. We are expecting the government to announce the NMW rates shortly and it is thought that this will result in a freeze on the rate for young people so that employers are more likely to offer jobs to younger people.


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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