In the employment tribunals: September 2010

XpertHR provides summaries of recent employment tribunal rulings. 

Carrot-throwing employee unfairly dismissed by Morrisons
Employee fairly dismissed for lying to court about employer’s stance on her jury service
Adsa employee’s summary dismissal was both substantively and procedurally unfair
Decorator unfairly dismissed despite making homophobic comment
Female Muslim discriminated against for not wearing a headscarf
Employer used sham redundancy to dismiss France-based employee
£792,000 award for harassed and unfairly dismissed disabled football journalist
Employee constructively dismissed for refusal to work under threats of violence
Employee who sold his employer's products on eBay was unfairly dismissed
Race discrimination: £2,000 for "monkey" comment made to Indian employee during golf game
Driver who walked out when hours were reduced was unfairly dismissed after 14-minute disciplinary hearing
Unfairly dismissed whistleblower wins £1.2 million compensation
Employer’s use of and discussions about lap dancing and prostitutes was discrimination
Manager’s mishandling of flexible working request led to constructive dismissal
Claimant rightly excluded from disciplinary hearing over fears of witness intimidation

Note: The decisions are not binding on other tribunals and are intended to provide illustrations for employers of situations that have led to tribunal claims. They are reported on XpertHR as soon as the transcript becomes publicly available, which is normally four to six weeks after the judgment has been made. 

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Carrot-throwing employee unfairly dismissed by Morrisons

Pickard v Wm Morrison Supermarkets plc ET/1800162/10

Date added: 30 September 2010

unfair dismissal | disciplinary investigation | witness evidence

Important factors in determining whether or not an employer has dismissed an employee fairly are its size and administrative resources, as the employer in this case found to its cost. 

Mr Pickard worked as a freezer operative for Wm Morrison Supermarkets, but from time to time was also required to work in the returns recycling unit (RRU) at a large warehouse. Since starting work in January 2007, Mr Pickard had been issued with three formal warnings, culminating in a final written warning that was “live” at the time of his dismissal. 

On 15 October 2009, a team leader, Mr Levene, reported to management that he saw Mr Pickard and a colleague, Mr Swaby, throwing carrots into a basket 15 feet away from where they were standing. Mr Levene considered that this conduct was creating a slipping hazard, and that the carrots could also have hit other members of staff walking past. An operations manager, Mr Priest, was tasked with carrying out an investigation. 

Mr Priest spoke to Mr Pickard and Mr Swaby, both of whom denied Mr Levene’s allegations and stated that they were only “chucking” the carrots to stack them. However, Mr Priest failed to interview a supervisor, Mr Lord, whom Mr Levene stated had visited the RRU and had seen the carrots “all over the floor” because Mr Pickard and Mr Swaby had missed the baskets they were aiming at. Mr Priest also failed to establish whether or not any other persons had been working in the RRU at the relevant time. 

The company suspended Mr Pickard and, following a disciplinary hearing, dismissed him on notice for misuse of company property. Mr Pickard appealed against his dismissal. The appeal officer realised that an additional investigation was required, and discovered that two agency workers were working at the time, who indicated they had seen nothing. He also discussed the incident with Mr Lord, but concluded that Mr Lord was unable to supply a written statement, and rejected Mr Pickard’s appeal on 14 December 2009. 

The following day, Mr Lord did provide the appeal officer with an email confirming that he saw the floor “littered with carrots”. Although the company’s disciplinary procedure provided that appeal hearings could be reconvened to deal with any additional investigation evidence, the appeal officer chose not to reconvene the hearing. Mr Pickard claimed unfair dismissal. 

The tribunal considered that the size and administrative resources of the company were of paramount importance. It noted that the company is a very large public limited company, and has an extensive and detailed managerial structure and HR support function. The tribunal was “of the firm view that what may be reasonable for the small retail unit may not be reasonable for a large supermarket group”. 

The tribunal held that Mr Priest had failed to carry out a reasonable investigation at the initial stage of the matter, by not speaking to Mr Lord or finding out whether or not other people had been present in the RRU at the relevant time. The tribunal held that the appeal officer rectified matters somewhat, but had acted unfairly by not telling Mr Pickard until after rejecting his appeal that Mr Lord had been involved in the appeal process. The tribunal held that this was in breach of ordinary principles of fairness and the company’s appeal procedure. 

The tribunal noted that the company’s failings most likely arose because neither the disciplinary nor the appeal officer took advantage of the HR support that was “no doubt available to them”. The tribunal held that Mr Pickard had been unfairly dismissed. 

Additional resources

• Get more information on disciplinary investigations with the XpertHR FAQs section:
  • Who should carry out a disciplinary investigation?
  • Can an employee who is a witness to an incident be obliged to provide a witness statement?
  • What is the difference between an investigatory interview and a disciplinary interview?
• XpertHR's policies and documents section provides the following model documents relating to disciplinary investigations:
  • Procedure on conducting a disciplinary investigation Use this model policy to set out how the employer will carry out a disciplinary investigation. 
  • Disciplinary investigation form Use this model form to maintain clear, complete and consistent records of disciplinary allegations made, how they are investigated and the evidence found. This form can be completed for each employee interviewed, the individual who made the original allegations and any witnesses. 
  • Letter informing an employee suspected of misconduct that an investigation will be taking place Use this model letter to inform an employee who is suspected of misconduct that an investigation into the alleged misconduct will be taking place. 

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Employee fairly dismissed for lying to court about employer’s stance on her jury service

Irwin v Ridge Crest Cleaning Ltd ET/1100292/10

Date added: 29 September 2010

unfair dismissal | jury service

An employee’s lies to a third party can be grounds for dismissal for breach of trust and confidence, as this case demonstrates. 

Mrs Irwin was a junior operations manager for Ridge Crest Cleaning, and was responsible for arranging cleaning services at Tonbridge Grammar School. On 31 July 2009, Mrs Irwin was summoned for jury service to commence 1 September 2009. She informed the company about this, and it raised no objection. 

On 26 August 2009, Mrs Irwin and the company’s managing director and owner, Mr Beach, attended Tonbridge Grammar School and discussed a deep clean for the school's canteen, which needed to be completed by 1 September 2009. Mrs Irwin’s later evidence was that Mr Beach told her to get out of her jury service, and when she asked how she was supposed to do that, he suggested telling the court she had swine flu. Mr Beach denied this and said that, although Mrs Irwin had asked him whether or not she could get out of jury service, he had told her that he had no objection to her attending it, provided that she arranged for the cleaning to be completed on time. He claimed that he told Mrs Irwin that if she wished to apply to defer her jury service, she should approach the company’s office manager for an appropriate letter. 

On the evening of 31 August 2009, Mrs Irwin texted Mr Beach saying that she could not get out of her jury service. This concerned Mr Beach, who was upset that she had left it until the last minute to let him know, and thought that it might cause problems for the cleaning at the school. On 1 September 2009, Mr Beach received a number of complaints from the school that the cleaning had not been done properly. He and Mrs Irwin had an angry telephone conversation that evening. 

On 2 September 2009, Mrs Irwin again attended jury service and, referring to her conversation with Mr Beach on 26 August 2009, told the court that he had instructed her to try to get out of jury service by saying that she had swine flu. She was excused from jury service as a result and, on advice from the jury bailiff, reported the matter to the police. On 23 October 2009, she made a statement to the police in connection with proceedings for contempt of court against Mr Beach, repeating her allegations about him asking her to lie to avoid jury service. Mr Beach was later summoned to the Crown Court for alleged contempt of court. 

Mr Beach suspended Mrs Irwin and arranged for an independent investigation to be carried out into her actions, which he considered constituted a potential breach of trust and confidence. During the investigation, Mrs Irwin stood by her story and claimed that Mr Beach had made harassing calls to her. The independent investigator could find no evidence of such calls, and concluded that Mrs Irwin had lied to the court. Mr Beach accepted the report and dismissed her for gross misconduct. Mrs Irwin did not appeal, but claimed unfair dismissal. 

At the tribunal, Mrs Irwin argued that it was wrong of Mr Beach to have used an independent investigator, and then to take the decision to dismiss himself. The tribunal found that the company was small and had no one else of similar seniority to Mr Beach. It found that he had sought to “inject impartiality into the investigation” by appointing an external third party to conduct the investigation, and had adopted a fair approach to the matter. 

The tribunal also found that the company reasonably concluded that Mrs Irwin had lied to the court, and therefore held that her dismissal was fair in all the circumstances. 

Additional resources

• Get more information on jury service with the XpertHR FAQs section:
  • Is an employer required to permit its employees to go on jury service?
  • Where an employer considers that having a particular employee go on jury service would injure its business, can it approach the court directly to request a deferral?
  • Do employees have a statutory right to be paid while on jury service?
• XpertHR's policies and documents section provides the following model documents relating to jury service:
  • Jury service policy Use this model policy when drafting a staff handbook or policy on time off work. 
  • Leave for jury service contract clause Use this model contract clause when drafting an employee's contract of employment or employee handbook. 
  • Letter from an employer to support an employee's application for deferral of jury service Use this model letter to write to the court in support of an employee's application for the deferral of or excusal from jury service where the reasons for the application are work related. 

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Adsa employee’s summary dismissal was both substantively and procedurally unfair

Ferrari v Asda Stores Ltd ET/1102355/09

Date added: 28 September 2010

unfair dismissal | wrongful dismissal | disciplinary procedure

This case is a short and clear example of an employee whose dismissal for gross misconduct, by a very large employer, was both substantively and procedurally unfair. 

Miss Ferrari worked in the clothing department at an Asda store. In June 2008, the company received grievances from two of her colleagues, Miss Owens and Miss Farrington, who complained that Miss Ferrari had bullied and harassed them. Their allegations were that Miss Ferrari had held up a picture of a horse with buck teeth on her phone and told Miss Owens it looked like her; held up a pair of trousers suggesting that they would fit a colleague, when they were clearly too large; and threatened to hit Miss Owens. 

The company suspended Miss Ferrari, and upheld the grievances against her. It then carried out an investigation, which produced evidence that, although Miss Ferrari had made inappropriate jokes that might have offended others, these jokes were not meant to be hurtful. Nonetheless, the investigating officer thought that the allegations, if proved, could constitute gross misconduct, and the company began a disciplinary process against Miss Ferrari. 

In July and early August 2008, Miss Ferrari raised several grievances about Miss Owens and Miss Farrington. Miss Ferrari’s disciplinary hearing on 4 August 2008 was adjourned so that these grievances could be dealt with. The company eventually rejected them, but it took until 29 January 2009 for Miss Ferrari’s appeal against that decision to be rejected. The appeal officer apologised for the length of the delay. 

The disciplinary hearing was reconvened on 20 April 2009, and Miss Ferrari produced a letter from a colleague, Mrs Matthews, who stated that “people have actually admitted to me that they have lied in order to get Jasmine Ferrari removed from the department”. However, the disciplinary officer concluded that this letter was not relevant because Mrs Matthews had not worked in the clothing department when the alleged incidents occurred. 

On 29 April 2009, the disciplinary officer dismissed Miss Ferrari for the three allegations against her, on the basis that they constituted gross misconduct (although in the subsequent tribunal hearing, he admitted in evidence that only the first two allegations - regarding the horse picture and the trousers - were the reasons for dismissal). The company did not conclude Miss Ferrari’s appeal until 16 March 2010, due to delays in interviewing witnesses, although it chose not to interview Mrs Matthews because she was on sick leave. Miss Ferrari’s appeal against dismissal was rejected, and she claimed unfair and wrongful dismissal. 

The tribunal found that the company had a genuine belief in Miss Ferrari’s misconduct, but the tribunal did not accept that she had been guilty of gross misconduct. It found that the two instances of misconduct for which Miss Ferrari had been dismissed “did not come close” to the examples of gross misconduct set out in the company’s disciplinary procedure. The tribunal also found that Miss Ferrari’s dismissal was procedurally flawed, due to the company’s “unacceptable” delay in dealing with the matter (it was over 21 months from Miss Ferrari’s suspension before her appeal against dismissal was rejected), and its unreasonable failure to interview Mrs Matthews (which the tribunal said would have been “vitally important”). 

The tribunal therefore found that Miss Ferrari’s dismissal was both substantively and procedurally unfair. However, it determined that, as a result of Miss Ferrari’s contributory fault in her dismissal, any basic and compensatory award made would be reduced by 50%. 

Additional resources

• How to deal with bullying and harassment in the workplace A bullying and harassment policy should define acts of bullying and harassment to make it clear what is considered as unacceptable behaviour. This can range from unwanted physical contact or verbal abuse to isolation and exclusion from work-related social activities or unreasonable work-related instructions. 
• How to conduct a disciplinary investigation The disciplinary investigation is key to the process that must be followed prior to carrying out a fair dismissal, as an inadequate investigation may render the dismissal unfair. It is, therefore, important that investigating officers are made aware of the essentials of carrying out a reasonable investigation. 

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Decorator unfairly dismissed despite making homophobic comment

Lupton v Festival Housing Ltd t/a Festival Housing Group ET/1302363/10

Date added: 23 September 2010

unfair dismissal | homophobic language

This case, in which an employee was unfairly dismissed even though he had made homophobic remarks, demonstrates the importance of employers properly following their relevant internal procedures. 

Mr Lupton worked as a painter and decorator for Festival Housing Group, which (among other things) operates sheltered housing accommodation for older people. On 12 October 2009, the company received a complaint from one of its vulnerable residents, Mr Lacey, about Mr Lupton, who had done some work at his home with an apprentice. Through his daughter, he complained about the quality of Mr Lupton’s work; that Mr Lupton had referred to his apprentice, Mr Rawlings, as a “gay boy”; and that he had repeatedly used the word “fuck” when speaking to Mr Rawlings. 

The company carried out an investigation and disciplinary process, during which Mr Lupton changed his story about the incident. He initially said that he could not remember saying anything rude and that, although he had introduced Mr Rawlings as “a hardworking lad, but unfortunately gay”, he had meant this as a joke. However, he later denied having said this. The disciplinary officer dismissed Mr Lupton for gross misconduct. At the end of the hearing, he told Mr Lupton that the reason for dismissal was “on the grounds of his homophobic comments”, but stated in the dismissal letter that the reason was also that Mr Lupton “swore repeatedly in the presence of the resident”. 

Mr Lupton appealed against his dismissal and changed his story yet again, claiming that he had used the word “gay”, but in a non-aggressive manner. When asked in the appeal meeting whether or not he had called Mr Rawlings a “gay boy”, he replied yes, then no, and then said that it was in fact Mr Rawlings who had called him a “gay boy”, but that he had decided to “take the rap”, given that Mr Rawlings was a first year apprentice. The appeal officers felt that Mr Lupton’s language was bullying, and upheld his dismissal because of the “gay boy” comment. Mr Lupton claimed unfair dismissal. 

The tribunal found that the disciplinary officer genuinely believed that Mr Lupton had used inappropriate language and that, on the basis that the company had conducted a reasonable investigation, he had reasonable grounds for this belief. However, the tribunal considered that the sanction of dismissal fell outside the range of reasonable responses. 

The tribunal was troubled by the discrepancy between the reasons for dismissal given at the disciplinary hearing and in the dismissal letter. It also took account of the company’s harassment policy and disciplinary procedure, both of which emphasised that managers should attempt to resolve issues informally, wherever possible, before taking formal action. Even though the incident took place in a client’s home, the tribunal found that management had escalated the matter to a disproportionate level of seriousness, and focused unduly on the harassment element. The tribunal held that these failings were not rectified at the appeal stage, and that Mr Lupton’s dismissal was therefore unfair. However, the tribunal ruled that any compensation awarded to Mr Lupton should be reduced by 60% due to his contributory fault. 

Additional resources

• How to resolve potential disciplinary issues informally The aim of informal disciplinary action is to make the employee aware that his or her conduct or performance falls short of expected standards and to enable the employer to take action to avoid relatively minor difficulties becoming a major problem. 
• Get more information on unfair dismissal with the XpertHR FAQs section:
  • Once a claim for unfair dismissal is brought what must an employer do to defend its actions?
  • How does a tribunal gauge whether an employee has been unfairly dismissed on the basis of misconduct?
  • What is the difference between wrongful dismissal and unfair dismissal?

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Female Muslim discriminated against for not wearing a headscarf

Khan v Masood Ghafoor t/a Go Go Real Estate ET/1809595/09

Date added: 22 September 2010

religion or belief discrimination | sex discrimination | race discrimination

In this case, an employer’s religion-based intolerance led to a successful discrimination claim. 

Miss Khan, who is of Pakistani origin, applied for a job at Mr Ghafoor’s estate agency. Miss Khan is a non-practising Muslim, and does not cover her hair; Mr Ghafoor on the other hand is a practising Muslim with traditional religious and cultural beliefs. He explained that he needed someone who looked professional to run the office. Miss Khan obtained the job, and started on 17 June 2009. 

During the course of Miss Khan’s brief employment with Mr Ghafoor, he raised the topic of religion with her, and stated that she had not been brought up as a “good Muslim”. He asked her on more than one occasion if she would consider wearing a headscarf to work, as it would make him feel better about having a Muslim woman working in the office; he said that he was used to women being covered up in his presence. Mr Ghafoor's cousin also worked in the office, and he joined in Mr Ghafoor’s criticism of her. 

Miss Khan felt intimidated by these remarks, and told Mr Ghafoor that she was not a practising Muslim, that the headscarf issue had nothing to do with her work, and that his remarks made her feel uncomfortable. Mr Ghafoor employed two other women, before and after Miss Khan’s employment with him, and did not ask them to cover their hair. 

At the start of Miss Khan’s third week of work, Mr Ghafoor met with her and said that there was a problem with her working in the office. This was, he said, because she was a woman, and people had been gossiping about how “westernised” she looked in not wearing a headscarf, implying that she was not “respectable”, and that there was “something going on” between her and members of staff. He also stated that his cousin was unhappy working with a woman, particularly one who did not wear a headscarf. He explained that they had had a “problem” like this before with what he described as a “westernised young Muslim Asian woman”, who had been sacked for the same issue. 

The following day, Mr Ghafoor dismissed Miss Khan, stating that his staff could not work with a woman in the office. Miss Khan brought claims including direct discrimination on the grounds of sex, religion or belief, and race. 

The tribunal found that Mr Ghafoor’s stated reason for dismissing Miss Khan had to be interpreted, given the presence of white women in the office before and after her employment, as meaning that his staff could not work with a Muslim woman who did not conform to their views on female dress. In respect of the claim for direct discrimination on the ground of religion or belief, the tribunal found that Mr Ghafoor treated Miss Khan less favourably by dismissing her, and not his other female employees, because she would not cover her hair. The reason for her refusal was a lack of belief that her religion obliged her to cover her hair. The tribunal found that her dismissal for this reason was direct discrimination. It rejected an argument by Mr Ghafoor that the requirement to wear a headscarf was purely cultural, and not religious. 

With regard to Miss Khan’s direct sex discrimination claim, the tribunal found clear evidence that Miss Khan’s gender played a part in the decision to dismiss her: Mr Ghafoor's cousin did not want to work with a Muslim woman who did not cover her hair, and any male employee would have been treated more favourably, because Mr Ghafoor's cousin would have worked with him. The tribunal held that Miss Khan’s dismissal was also direct sex discrimination. 
 
However, the tribunal rejected Miss Khan’s direct race discrimination claim. It found that the correct comparator was a Muslim woman not of the same racial origin as Miss Khan, and that in society there are white and black converts to Islam. The tribunal considered that Mr Ghafoor would have treated such comparators in the same way as he did Miss Khan, by requiring them to cover their hair and dismissing them if they failed to do so. As such, it held Miss Khan was not treated less favourably on racial grounds. 

Additional resources

• Dress and appearance policy Use this model policy as part of the company's policy manual or staff handbook to set the rules on employees' dress and appearance. 
• Get more information on religion or belief discrimination with the XpertHR FAQs section:
  • Can an employer have a dress code requiring female employees to wear a skirt?
  • Should a female Muslim employee be allowed to wear a veil or headscarf if she wishes to do so?
  • What can an employer do if an employee refuses to comply with a dress code?

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Employer used sham redundancy to dismiss France-based employee

Enticknap v Musgrave Generators Ltd ET/1902454/09 & ET/1902453/09

Date added: 21 September 2010

unfair dismissal | redundancy | capability

This case demonstrates how an employer’s failure to address a capability problem promptly, and in the correct manner, can lead to a tribunal claim. 

Mr Enticknap worked in the sales team at Musgrave Generators Ltd, which manufactures and installs standby generators. The company does business solely in the UK. In 2005, Mr Enticknap moved to France, which the company was understandably unhappy about. However, Mr Enticknap relied on his contract, which stated that his place of work was his home. For reasons “incomprehensible” to the tribunal that later heard Mr Enticknap’s claim, the employer reluctantly went along with this arrangement. 

Mr Enticknap’s work remained in the UK, and in 2008 he was issued with a written warning for refusing to follow a management instruction to attend a meeting with a customer, despite arguing that he had been given insufficient notice of the meeting and had therefore been unable to arrange a flight. In 2009, a new manager, Mr Duggan, considered redundancies among the sales team, and went as far as scoring them against selection criteria. Mr Enticknap scored lowest by some distance but, as Mr Duggan left the company around this time, no further action was taken. 

In June 2009, another manager, Mr Buckman - with whom Mr Enticknap shared a strong mutual dislike - took on some new employees and determined, as a result, that he could consider making Mr Enticknap redundant. He invited Mr Enticknap to a meeting, and when asked what the purpose of the meeting was, responded with a vitriolic email that concluded with “I cannot be bothered dealing with you any longer…what amount would it cost for you to leave us with immediate effect…?”. Mr Buckman proceeded with a redundancy process, despite Mr Enticknap raising a grievance alleging that the process was a sham. 

Mr Buckman informed Mr Enticknap that the company felt that a more “face-to-face” relationship with UK customers was necessary, and that his role was being replaced with a sales position in the UK. Mr Enticknap rejected this offer, and was made redundant in August 2008. He claimed unfair dismissal. 

At the hearing, the company argued that, because Mr Enticknap had not paid social security payments in France, his contract of employment was illegal and therefore outside the tribunal’s jurisdiction. The tribunal rejected this argument on the basis that the contract was entirely open and there was no misrepresentation. 

The tribunal found that the reason for Mr Enticknap’s dismissal was not redundancy; there was no diminution in the work that the company required him to do. As a result, the tribunal held that the dismissal was unfair. It considered that the real reason for the dismissal was a combination of the mutual dislike between Mr Enticknap and Mr Buckman and, more importantly, the fact that once Mr Duggan joined the company, someone at last got to grips with the fact that Mr Enticknap’s residency in France meant that he could not make the required level of contact with customers. 

Additional resources

• Enfield Technical Services Ltd v Payne; BF Components Ltd v Grace [2008] IRLR 500 CA In this case, which was cited by the tribunal in Mr Enticknap's claim, the Court of Appeal confirmed that for a contract to be tainted by illegality, there must be some form of misrepresentation by the parties. 
• Employment tribunal decisions: redundancy The employment tribunal reporting section of XpertHR provides illustrations of situations that have led to claims:
  • Age discrimination in redundancy: employment tribunal decisions
  • Unfair dismissal in selection for redundancy: employment tribunal decisions
  • Consultation on collective redundancies: employment tribunal decision

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£792,000 award for harassed and unfairly dismissed disabled football journalist

Driscoll v News Group Newspapers Ltd ET/3202077/07 & ET/3202319/07

Date added: 15 September 2010

unfair dismissal | disability discrimination | harassment | failure to make reasonable adjustments

In this case, the employer’s unrelenting desire to dismiss the employee resulted in the highest disability discrimination award in the period from 1 April 2009 to 31 March 2010. 

Mr Driscoll was a successful football journalist at the News of the World, and had a good record until 2005, when problems began between him and his employer. These seem to have arisen as a result of the editor of the newspaper, Mr Coulson, turning against Mr Driscoll. 

In July 2005, Arsenal football club complained about an article that Mr Driscoll had written about one of its players, and there was a delay in dealing with this complaint attributable to both Mr Driscoll and his line manager. Although it was a minor matter, Mr Driscoll was issued with a written warning. Despite requests by Mr Driscoll, the company gave him no information about how it had dealt with previous similar situations. Mr Driscoll’s line manager, who issued the warning, was not disciplined. The editor of the newspaper, Mr Coulson, subsequently informed Mr Driscoll that he thought that the allegation merited dismissal. 

In March 2006, Charlton Athletic football club complained about another article by Mr Driscoll, and he was issued with a final written warning. Again, the company failed to provide any information to Mr Driscoll about previous similar incidents. The company then required Mr Driscoll to report to the news desk daily by 10am, which no other reporter was required to do. Mr Driscoll refused and was invited to a disciplinary hearing, but went on sick leave due to stress before it could take place. 

At this point, Mr Coulson informed company management that he wanted Mr Driscoll out “as quickly and cheaply as possible”. Almost immediately the company attempted to get Mr Driscoll to meet its occupational health adviser, which he resisted. The company ignored Mr Driscoll’s request that it communicate through his union representative, and chose not to extend his company sick pay when it expired in February 2007. Company management then held a meeting to discuss options on how to resolve the situation. All the options involved dismissing Mr Driscoll. 

The company obtained a number of medical reports from Mr Driscoll’s GP and a consultant, all of which supported the view that Mr Driscoll’s health problems resulted from his perceived injustice at the company’s treatment of him, and that he would not be fit to return to work until those issues had been addressed. Despite this, the company dismissed Mr Driscoll in April 2007, purportedly on the ground of capability, and rejected his appeal against that decision. He brought claims for unfair dismissal and disability discrimination including direct discrimination, harassment and a failure to make reasonable adjustments. 

The tribunal was unimpressed by the company’s witnesses, whom it found attempted retrospectively to paint Mr Driscoll in as bad a light as possible in a manner that was totally unsupported by the evidence. It found that both written warnings and the requirement for Mr Driscoll to report to the news desk daily were all a pretext for the editor’s desire to “get shot of” him, and that the company had adopted a cynical process of appearing fair to Mr Driscoll in the hope of avoiding an unfair dismissal claim. 

The tribunal held that capability was not the real reason for Mr Driscoll’s dismissal; the true reason was simply the long-standing desire of management to get rid of him. The dismissal was therefore unfair. The tribunal also upheld the majority of Mr Driscoll’s disability discrimination claims, including the failure by the company to communicate with his union representative and to extend his sick pay, both of which were reasonable adjustments. The tribunal found that, although some of the employer’s actions regarding the proposed occupational health referral would normally be considered good practice for dealing with a long-term ill health situation, in the context of the company’s ulterior motive to dismiss Mr Driscoll, they were bullying behaviour and constituted unlawful harassment. 

At a later remedies hearing, the tribunal awarded Mr Driscoll over £792,000 in compensation. This comprised two years’ full loss of earnings at around £65,000 per year, and a further 10 years’ loss at £35,000 per year. The tribunal considered that the injury to feelings element fell within the highest Vento bracket and awarded £25,000. Finally, the tribunal awarded aggravated damages of £10,000. 

Additional resources

• Employment tribunal awards 2009/10 The XpertHR quick reference section has been updated with information on the compensation awarded in unfair dismissal and discrimination claims and the number of claims accepted under each jurisdiction in 2009/10. 
• Equal opportunities policy relating to disability Use this model policy to set out the company's commitment to providing equality of opportunity for disabled people. 
• Get more information on disability discrimination with the XpertHR FAQs section:
  • If an employee's sickness absence is due to a workplace accident, should he or she be paid in full where there is normally no provision for full sick pay?
• Is medical evidence usually relied upon in a disability discrimination case?
• What reasonable adjustments could an employer consider if it employs a member of staff with a disability that fluctuates?

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Employee constructively dismissed for refusal to work under threats of violence

Fountain v Beeline Taxis Ltd ET/1503405/09

Date added: 15 September 2010

constructive dismissal | refusal to work due to dangerous circumstances

In this unusual case, an employee succeeded in claiming constructive dismissal when he refused to work due to threats of violence against him. 

Mr Fountain worked as a radio controller for Beeline Taxis, which operated a policy providing that its drivers had to take the next available job. If a driver was offered a job three times and still refused, that driver would be logged out of the system, and therefore unable to receive work, for three hours. 

On 26 August 2009, when Mr Fountain was on shift, two drivers (known as “Red 30” and “Red 33”, who were brothers) refused to accept work in accordance with company policy. As they were new, Mr Fountain gave them the benefit of the doubt and did not log them out of the system, but reminded them of company policy. 

The following day Red 30 continued to refuse jobs, and Mr Fountain did log him out of the system. Red 30 then phoned the office and verbally abused Mr Fountain, calling him “a fucking liar”. Later that day, Red 30 failed to carry out a job. When Mr Fountain made attempts to ascertain the position, Red 30 called him and launched into “a torrent of obscene and foul language made in a threatening tone, which finished with ‘you fucking wanker, I’ll have you’”. 

Mr Fountain informed his manager, Mr Pearl, that he refused to have Red 30 or Red 33 on any shifts due to their behaviour. Although the manager spoke to the two drivers, the next evening Mr Fountain found them logged on for work. He told Mr Pearl that he was not prepared to work and, on Mr Pearl’s suggestion, submitted a grievance. Mr Pearl said that he was happy to accept Mr Fountain’s version of events, but was not going to do anything as Mr Fountain had provoked the situation himself. 

Mr Fountain refused to return to work and requested that an investigation be carried out. Mr Pearl carried out a thoroughly inadequate investigation, ignoring evidence from a colleague who had overheard Red 30’s abuse of Mr Fountain. He found that there was insufficient evidence regarding the allegations of abuse, and concluded that Mr Fountain’s safety was not at risk. Mr Fountain’s appeal was heard by Mr Pearl, and was not upheld. The final straw for Mr Fountain was being suspended by Mr Pearl due to allegations of making inappropriate racial comments to the drivers. Mr Fountain resigned and claimed constructive dismissal. 

The tribunal found that the company had fundamentally breached Mr Fountain’s contract by failing to discipline the drivers initially; conducting a flawed investigation and reaching unreasonable conclusions as a result; and suspending Mr Fountain on entirely spurious grounds (there was no evidence whatsoever that Mr Fountain had made inappropriate racial comments; Mr Pearl admitted that he had formed this view himself). 

Despite the fact that Mr Fountain did not have one year's service, the tribunal found that his constructive dismissal was automatically unfair, relying on a statutory provision that protects employees who refuse to work due to dangerous circumstances. Unsurprisingly, the company’s defence that Mr Fountain had a lock on his office door cut no ice with the tribunal, which stated that it was incumbent on the company to take proactive steps to resolve the situation, rather than “rely on the assumption that if the threats were carried out the controller could shelter behind a locked door”. 

Additional resources

• Equal opportunities and dignity at work policy Use this model policy as part of the company's staff handbook or as a standalone document if there is no handbook. Larger employers may wish to use the more detailed separate equal opportunities and dignity at work policies. 
• Line manager briefing on bullying and harassment This line manager briefing covers the topic of bullying and harassment and aims to provide guidance on what managers should do to reduce the likelihood of incidents of bullying and harassment at work and deal effectively with any complaints of bullying or harassment that may arise. 

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Employee who sold his employer's products on eBay was unfairly dismissed

Walker v Minivator Ltd ET/3500187/09

Date added: 15 September 2010

unfair dismissal | theft | competing with employer

Even if an employer believes that it has a good reason to dismiss an employee, it must still carry out a fair investigation, as this case demonstrates. 

Mr Walker worked as an engineer for Minivator Ltd, which manufactures stair and bath lifts. On commencing employment with the company, Mr Walker signed acknowledgment of a handbook that specifically prohibited employees from theft and engaging in activities prejudicial to the interests of the company. 

On 19 August 2009, Mr Walker received an invitation to a disciplinary hearing regarding a number of issues, including failure to attend meetings and undertake stocktakes. The invitation warned Mr Walker that he could be dismissed for gross misconduct. Mr Walker was naturally concerned that he would lose his job, and decided to buy some of the company’s products second-hand from two sources: a dealer and eBay. Although Mr Walker apparently had no particular intention of setting up in business against the company, he thought he “would have to do something if he was about to lose his job”. He later acknowledged that this was “probably a stupid thing to do”. 

In the event, Mr Walker received only a verbal warning. On realising that he had not lost his job, he went about selling the company products that he had purchased by advertising them on eBay. Unfortunately for Mr Walker, his actions coincided with some theft of company stock. One of Mr Walker’s colleagues notified the company about his eBay adverts. The company linked the background to the photograph on the adverts - Mr Walker’s house - to Google Earth photographs of his actual address, and suspended him pending a disciplinary hearing. 

At the hearing, the company explained the allegations against Mr Walker, which were that he had stolen company stock and was trying to sell it on eBay, and was putting himself in conflict with the company by doing so. Mr Walker produced a receipt from the dealer from whom he had purchased some of the products, and explained that he had bought the rest on eBay. He also vehemently denied stealing the products, and stated that investigation of his eBay account would exonerate him. 

The company adjourned the hearing for 45 minutes, but decided not to investigate Mr Walker’s eBay account. It dismissed him for gross misconduct. Mr Walker did not appeal, on the basis that he “knew the decision came from the top”, and claimed unfair dismissal. 

The tribunal found that the company genuinely believed that Mr Walker was guilty of the allegations against him, but considered that the crucial question was whether or not it had reasonable grounds to sustain that belief. The tribunal held that the company did not have such grounds, on the basis that its investigation was not reasonable in the circumstances. The tribunal was surprised that the company did not investigate records relating to Mr Walker’s work, which might have generated information about the extent to which he had been involved in removing used or broken items. The company had also failed to investigate Mr Walker’s eBay account, and in fact sought to elicit further information from him about the matter, after his dismissal, by withholding outstanding pay owed to him. 

The tribunal therefore upheld Mr Walker’s claim, but declined to make a compensatory award, on the basis that he had been 100% to blame for his dismissal. 

Additional resources

• How to conduct a disciplinary investigation The disciplinary investigation is key to the process that must be followed prior to carrying out a fair dismissal, as an inadequate investigation may render the dismissal unfair. It is, therefore, important that investigating officers are made aware of the essentials of carrying out a reasonable investigation. 
• Line manager briefing on conducting an investigation This line manager briefing examines how to conduct an investigation.  While disciplinary investigations may be the most common form of investigation, much of the guidance would apply equally to other situations where an investigation may be necessary, for example on receipt of a grievance or where an employee is underperforming or suffering from stress. 

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Race discrimination: £2,000 for "monkey" comment made to Indian employee during golf game

Basi v Snows Business Forms Ltd ET/3100944/2009

Date added: 9 September 2010

race discrimination | harassment | workplace banter | compensation

The employment tribunal awarded an employee in a sales team over £2,000 for "banter" that spilt over into racial abuse. 

Mr Basi, who is a Sikh of Indian origin, worked with 10 to 12 colleagues in a small, confined area within a larger office space. The tribunal described the environment as conducive to "healthy banter". The sales director, Mr Middleton, had an abrupt manner and was known to "insult staff indiscriminately" at times. Mr Basi had a good relationship with his manager, Mr Finnerty. 

Mr Basi made the following complaints: 

• In July 2008, Mr Basi overheard Mr Middleton use the phrase "dirty Arab" when talking to someone else. He later told a grievance hearing that he could not be sure whether or not the comment was aimed at him, but pointed out that he was the only one of Indian descent there at the time. 
• An incident occurred in September 2008 where Mr Finnerty called Mr Basi a "monkey" when he was walking past his manager’s desk. When asked by Mr Basi if the comment was directed at him, Mr Finnerty indicated that he was referring to another member of staff. Subsequent notes from the grievance meeting suggested that he may have said "cheeky monkey". In any event, Mr Basi took the comment to be a racial slur. 
• Later in September 2008, Mr Finnerty repeated the phrase "monkey" or "cheeky monkey" during a golf match, at which business matters were discussed even though it was a social event. 
• In October 2008, Mr Middleton broke Mr Basi’s Liverpool football mug and called him a "dirty Arab" to his face. 
• Later in October 2008, Mr Middleton and Mr Basi got into an argument over a golfing rule that resulted in the sales director calling Mr Basi a "fucking idiot" and throwing a golf rulebook at him. 

Mr Basi went home upset after that last incident and raised a formal grievance, although he also said that he was feeling ill. Mr Cutts, the managing director, undertook a detailed investigation that included gathering witness evidence from the parties present at the alleged incidents. A grievance hearing was held, but Mr Basi’s complaints were rejected. He was given a right of appeal. 

In subsequent correspondence, Mr Basi indicated his unwillingness to return to work. He was asked to come in to work to discuss the issue. Mr Basi was told that he would have to be dismissed, although he later tendered his resignation in writing. He claimed race discrimination in the employment tribunal. 

The tribunal was placed in a difficult position because Mr Basi did not call as witnesses the individuals who were alleged to have racially abused him. He instead relied purely on evidence from Mr Cutts, the managing director who had handled the grievance. 

The tribunal rejected all but one of Mr Basi’s claims because there was insufficient evidence before the tribunal or he had not raised the issue soon enough, for example during the grievance process. 

However, the employment tribunal found that the incident on the golf course where Mr Basi had been called a "monkey" or "cheeky monkey" did occur. It was an ill-considered comment and Mr Basi was entitled to feel degraded, humiliated and intimidated. 

The tribunal went on to find that the social event was so closely connected with work and the workplace that Mr Finnerty did make the comment "in the course of his employment". The employer could not defend the case by saying that it took steps to prevent the discrimination taking place. It did have a "rudimentary policy", but there was "no satisfactory guidance, no training, no monitoring and no policing of this policy". 

Mr Basi was given £1,200 for injury to feelings and a small award for loss of earnings. His total compensation for racial harassment was just over £2,000. 

Additional resources

• Equal opportunities and dignity at work policy Use this model policy as part of the company's staff handbook or as a standalone document if there is no handbook. Larger employers may wish to use the more detailed separate equal opportunities and dignity at work policies. 
• Policy on work-related social events Use this model policy to set out rules on work-related social events, when drafting the company's policy manual or staff handbook. 

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Driver who walked out when hours were reduced was unfairly dismissed after 14-minute disciplinary hearing

Stafford v Mrs Gills Kitchens Ltd ET/1101158/2009

Date added: 8 September 2010

unfair dismissal | accident at work | reduction in working hours

The employer in this case was determined to get rid of an employee who was off sick for 11 months after an accident at work for which it admitted liability, leading to a finding of unfair dismissal. 

Mr Stafford was a driver for a company owned by Mr and Mrs Gill that supplies meals to hospitals. He was allowed to work very long hours and also undertook non-driving work, including building work and vehicle maintenance. 

In August or September 2006, Mr Stafford slipped at work and suffered a back injury as a result. His employer acknowledged that the accident was caused by a leak from a sealed food container, and paid him compensation. 

Mr Stafford was off work for 11 months. He was given medical advice that he was fit to drive, but should not do any heavy lifting or use heavy machinery. He agreed with his employer on his return that any non-driving work would be agreed with him in advance. 

While Mr Stafford was off sick, another driver was employed. On his return to work, Mr Stafford's driving hours were reduced, causing him to make a complaint. In February 2008, he was required to erect shelving inside a freezer, but found the materials too heavy. Mrs Gill refused to get him help. Mr Gill was not there often and, when Mr Stafford did manage to raise the issue with him, his response was to say that "my wife is in charge, what she says goes". 

After another two drivers were employed in 2008, Mr Stafford's hours were further reduced, and the hours that he was given became less consistent. He made frequent complaints to Mrs Gill. 

Mr Stafford was on holiday over the Christmas period in 2008. He told Mrs Gill when he would be back, but on his return could not get in touch with the owners. He went to work on 29 December 2008 and found that the other drivers had been given substantially more driving hours than he had. This was the final straw for Mr Stafford, who went home and refused to come back until he was given a proper work schedule. 

Mr Stafford raised a grievance. A grievance meeting was held on 30 January 2009, but his complaint was not upheld. A few days before the grievance meeting, Mr Stafford was informed that he faced disciplinary action for going absent without leave on 29 December 2008. A disciplinary hearing was held by Mr Gill on 2 February 2009, which lasted only 14 minutes. Mr Stafford was sent a letter on 3 February 2009 dismissing him. The letter offered him an appeal, but Mr Stafford considered appealing would be futile, and he brought a claim for unfair dismissal. 

The employment tribunal found that Mr Stafford had been unfairly dismissed because:

• his actions on leaving work on 29 December were justified by the fact that his previous complaints had been totally ignored;
• the disciplinary hearing was entirely unsatisfactory, given that Mr Gill had already made up his mind to dismiss him;
• Mr Gill took no account of anything that he had to say in the disciplinary hearing or the history of his repeated complaints; and
• the employer had deliberately reduced his driving hours, forcing him to take on extra non-driving work such as heavy lifting, contrary to the agreement that was reached on his return to work after his accident. 

For these reasons, the tribunal found that the employer's actions in dismissing Mr Stafford were outside the "range of reasonable responses". It awarded him just over £13,000, including an amount for loss of earnings for the period from his dismissal until he found a permanent job in July 2009. 

Additional resources

• Accidents at work: an overview; the Corporate Manslaughter and Corporate Homicide Act 2007; case study; and frequently asked questions Steeles (Law) LLP provides a series of articles on accidents at work. 
• McAdie v Royal Bank of Scotland plc [2007] IRLR 895 CA The Court of Appeal has confirmed that a capability dismissal following long-term stress-related sickness absence brought on by the employer's actions can be fair. This decision is a reminder to employers that, although they should make an extra effort to get the employee back to work, causing an employee's ill health is no bar in law to a fair dismissal on the ground of capability. 

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Unfairly dismissed whistleblower wins £1.2 million compensation

Watkinson v Royal Cornwall Hospitals NHS Trust ET/1602168/08 & ET/1702079/09

Date added: 6 September 2010

whistleblowing | unfair dismissal

Compensation for a successful whistleblowing claim is unlimited, as the employer in this case found to its cost. 

Mr Watkinson was the chief executive of the Royal Cornwall Hospitals NHS Trust, which was responsible for Treliske Hospital in Truro, where he was based. This case revolved around a proposal, by the relevant authorities, to reconfigure the trust’s upper gastro-intestinal cancer services and relocate its surgical component to a hospital in Devon. The issue that gave rise to Mr Watkinson’s claim was whether or not the authorities were legally required to undertake public consultation on the proposed changes. 

Certain authorities believed that the changes could be implemented without public consultation. These included the chief executive of the South West Strategic Health Authority, which was responsible for the trust’s activities. However, the trust obtained legal advice on the matter, which unequivocally stated that the authorities were legally required to consult publicly on the proposed changes. Mr Watkinson relied on his presentation of this advice to the trust’s board, on 5 August 2008, as a protected disclosure under the whistleblowing legislation. 

In 2008, a negative report was published regarding performance at the hospital where Mr Watkinson had previously worked. On 23 September, the trust’s board considered that there were no grounds for taking action against Mr Watkinson, whom they felt was doing a good job. However, on the Strategic Health Authority's (SHA) advice, the board suspended Mr Watkinson and commissioned a review into the management and governance of the trust. 

Mr Watkinson formed the view that the real reason for the review was to enable the trust and SHA to find grounds to take disciplinary action against him, due to his presentation of legal advice regarding consultation that ran contrary to their views. Around this time he submitted his first tribunal claim, alleging detriment due to his alleged protected disclosure, stating that he was seen by the SHA as hindering its objective to implement the cancer services changes without due public consultation. 

The report produced from the management and governance review was critical of Mr Watkinson, who sent a lengthy rebuttal letter. The board accepted the report’s conclusions and decided to convene a “trust and confidence” meeting with Mr Watkinson. As a result of this meeting, the board dismissed Mr Watkinson, on the basis that relations had broken down between the parties and his continued employment was untenable. Mr Watkinson’s appeal was not upheld. A few days after Mr Watkinson’s dismissal, at a meeting that he would have attended had he not been dismissed, the relevant authorities concluded that the proposed changes to the trust’s cancer services did not require public consultation. 

Mr Watkinson brought a claim for automatic unfair dismissal, alleging that the reason for his dismissal was his protected disclosure on 5 August 2008 regarding the legal advice. This was heard at the same time as his first claim, which was not upheld. The tribunal commented adversely on the failure of several key witnesses for the trust to attend the hearing, and the fact that several of the trust’s witnesses were unable or unwilling to give straightforward answers to simple questions. 

The tribunal found that the SHA had put strong pressure on the trust regarding Mr Watkinson’s position, and that it was extraordinary for the trust to accept the management and governance report without reference to Mr Watkinson. It found that the trust failed to carry out a reasonable investigation into the disciplinary issues, and that the appeal stage “was a travesty of anything approaching basic concepts of fairness”. 

As regards the reason for dismissal, the tribunal found it significant that the SHA and relevant authorities were due to meet on 27 April 2009 to discuss the cancer service proposals. This was only a few days after Mr Watkinson’s eventual dismissal. The tribunal found that Mr Watkinson’s presentation of the legal advice on 5 August 2008 was a severe irritant to the SHA’s intentions, and that, had he not been dismissed, he would have attended the meeting on 27 April and repeated his views. The tribunal determined that, although the relationship between Mr Watkinson and the trust was damaged, it was not reasonable for the trust to dismiss him on that basis without due investigation. 

The real reason for dismissal, the tribunal held, was the pressure brought to bear by the SHA on the trust, due to Mr Watkinson’s stance on the consultation issue. The tribunal held that Mr Watkinson had been automatically unfairly dismissed for making a protected disclosure, and at a later remedies hearing awarded him £1.2 million in compensation. 

Additional resources

• Get more answers to questions on whistleblowing in the XpertHR FAQs section:
• What is a public interest disclosure?
• To whom can a worker "blow the whistle"?
• How can an employer ensure that its employees are able to raise any concerns that they have about failures or wrongdoing within the organisation?

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Employer’s use of and discussions about lap dancing and prostitutes was discrimination

Furlong v BMC Software Ltd ET/2701283/09

Date added: 2 September 2010

sex discrimination | harassment | victimisation

This case has colourful facts, but also important lessons for employers about preventing, and dealing with, allegations of sex discrimination. 

In 2007, Ms Furlong started work for BMC Software, a technology company, as a senior account manager. Soon after joining, she met a top salesman at the company, who told her that he had used lap dancing clubs to entertain clients. Ms Furlong, who has a moral objection to lap dancing clubs, formed the view that it was part of the culture of the company that some clients needed to be entertained in this manner. 

Ms Furlong alleged that on several occasions in 2007 the company used lap dancing clubs and brothels, both to entertain clients and for work-related social events. At a company event in Nashville in 2008, a social night was held at well-known bar called Coyote Ugly. Ms Furlong declined to attend the bar, during which women in the company’s party were encouraged to dance on the tables. Afterwards, the then managing director of the company allegedly told Ms Furlong that had she been present, she would have been “up on the table” topless. 

During the same Nashville event, a senior vice president of the company, Mr Fenelli, groped Ms Furlong’s bottom and told her he “would like to eat her like a marshmallow”. Ms Furlong reported this to her manager, who failed to investigate the matter and told her that “reporting the incident would not do [her] any favours”. Ms Furlong was then informed by another manager, in a one-to-one meeting, that her colleagues had been speculating about her having a relationship with a married male colleague during the Nashville event, based on the fact that she had been dancing close with him at a line dancing event. 

Ms Furlong raised a formal grievance about these matters, but it was not upheld by the company, which found no evidence of the use of lap dancing clubs. Her appeal was also not upheld, and the company failed to reply to a sex discrimination questionnaire. Ms Furlong brought a number of claims, including direct sex discrimination and harassment and victimisation on the ground of sex. 

Ms Furlong accepted in evidence that she uses crude language and is “sexually open minded”, but made it clear that her complaints was not about sexual office banter. The tribunal held that the company’s past use of lap dancing clubs (and potentially prostitutes, which it certainly discussed) was direct sex discrimination. This was because such things are more likely to be offensive to women, who cannot participate in them in the same way as men. The tribunal held that the past use of lap dancing clubs was also harassment. 

The tribunal held that Mr Fenelli had sexually harassed Ms Furlong. It considered that the company was liable for this even if Mr Fenelli was not an employee of the company, on the basis that the company had control over the environment where the harassment took place. The tribunal also found that the comments by Ms Furlong’s manager about an alleged relationship, and her manager’s attempts to discourage her from complaining about the Mr Fenelli incident, were both harassment. Finally, it held that the company’s failure to investigate Ms Furlong’s grievance properly was victimisation. 

The tribunal awarded Ms Furlong £12,000 for injury to feelings, over £20,000 for loss of earnings, and £2,000 for personal injury (for the depression Ms Furlong had suffered due, in part, to the incidents complained of). The tribunal also made recommendations that the company carry out a review of its equal opportunity training for managers, and that it take steps to ensure managers are trained properly to understand their responsibilities regarding anti-discrimination law. 

Additional resources

• Equal opportunities and dignity at work policy Use this model policy as part of the company's staff handbook or as a standalone document if there is no handbook. Larger employers may wish to use the more detailed separate equal opportunities and dignity at work policies. 
• Get more answers to questions on sex discrimination in the XpertHR FAQs section:
  • When can a complaint of victimisation be brought under the Sex Discrimination Act 1975?
  • Is harassment expressly prohibited under the Sex Discrimination Act 1975?
  • What is the difference between sex-based harassment and sexual harassment?

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Manager’s mishandling of flexible working request led to constructive dismissal

Wolstencroft v Waste Recycling Group Ltd ET/1312573/2009

Date added: 2 September 2010

constructive dismissal | request for flexible working | trial period | demotion

A manager’s disastrous mishandling of an application for flexible working, from an employee who had returned from maternity leave, meant that she resigned and successfully claimed constructive dismissal. 

Mrs Wolstencroft was an employee of Waste Recycling Group Ltd. She went on maternity leave on 26 October 2007, and was informed by letter three days later that she was being promoted to a management position as of 1 November 2007. 

When Mrs Wolstencroft returned to work on 27 October 2008, it was agreed that she would temporarily work three days per week because she had built up a substantial amount of annual leave while on maternity leave. On 19 December 2008, she raised the possibility of making the arrangement permanent, but was told to make a formal request for flexible working under the statutory procedure. Mrs Wolstencroft made a formal request dated 21 January 2009, in which she stated her belief that she could cover her role in three days each week, as she had been doing since her return from maternity leave. 

A trial period of flexible working, running from 9 February 2009 until 8 May 2009, was agreed with Mrs Wolstencroft’s manager, Mr Blake. He said that during this trial period he would be looking particularly at how emergencies and inspections were dealt with when there was no manager on site. Mr Blake also made some concessions, such as changing regular meetings with outside contractors to a different day when Mrs Wolstencroft would be working. 

However, it was also suggested that her job title be changed from "area manager" to "site manager" and that the reporting lines of another manager, Mr Murphy, be altered so that he no longer reported to Mrs Wolstencroft. A dispute arose as to whether or not Mrs Wolstencroft had agreed to this, but Mr Blake confirmed to her in a letter dated 11 February 2009 that, if she was granted her flexible working request at the end of the trial period, the changes would be made permanently. 

On 16 February 2009, Mr Blake circulated a new organisation chart that showed Mrs Wolstencroft being given responsibility for another site, on top of the one that she was already managing. She queried this, but was told by Mr Blake that he had forgotten to discuss this with her, and that it made sense geographically for her to be in charge of this site too. Her duties appeared to be limited to periodic checks that contractors were carrying out their work. 

No further discussion about the trial period took place until an impromptu meeting on 4 March 2009. Mrs Wolstencroft felt that Mr Blake was aggressive in the meeting, but the employment tribunal later had difficulty in substantiating this accusation as the only available record was notes that were taken down by Mrs Wolstencroft shortly after the meeting. However, it was clear that Mr Blake did say that he would not countenance the hiring of extra personnel to cover her work, and expressed concern that Mrs Wolstencroft might "up her game" during the trial period, but be unable to keep this effort up in the long term. 

By the end of the meeting, Mrs Wolstencroft believed that it had been agreed that the whole situation would be looked at afresh at the end of the trial period, although she did have a suspicion that Mr Blake had already made up his mind to reject her application for flexible working. 

On 7 March 2009, a finalised organisation chart was circulated that showed Mrs Wolstencroft with the new job title "site manager" and also incorporated the changes to reporting lines that she had disputed. She saw this as the final straw and tendered her resignation in a letter dated 25 March 2009. She could not be convinced to change her mind, despite further communications and a meeting with the company's HR department. 

Mrs Wolstencroft brought a claim for constructive dismissal (a claim for sex discrimination was withdrawn), arguing that the employer had expressly breached her contract of employment by unilaterally taking away some of her duties and the status that went with them. She also alleged that the manner with which her request for flexible working was dealt was sufficient to destroy her trust and confidence in her employer. 

The employment tribunal upheld her claim for unfair dismissal. The employer could legitimately have come to the conclusion at the end of the trial period that the flexible working arrangement would be unworkable. The problem was that the employer predetermined the issue by imposing conditions before they had been discussed or agreed between the parties. Mr Blake had fundamentally altered the agreement with Mrs Wolstencroft that there would be a simple trial period of the existing arrangements. In effect, he had said that, if the flexible working arrangement was granted, she would be demoted. This amounted to an anticipatory breach of the employee's contract of employment. The employer had also destroyed Mrs Wolstencroft's trust and confidence in it when Mr Blake had failed to approach her flexible working request in a fair, open-minded way. 

The employment tribunal went on to discuss whether or not the HR department's attempts to rectify the situation cured the breach of contract. It decided that, following the Court of Appeal decision in Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445 CA, an employer that commits a repudiatory breach of contract has no right to an opportunity to cure the breach. The finding of constructive dismissal therefore stood. 

Additional resources

• Right to request flexible working: model policies and documents The XpertHR policies and documents service provides a series of model documents relating to the right to request flexible working, including:
  • Letter agreeing to a trial period of flexible working Use this model letter to agree a trial period for flexible working, so that it can be established whether or not the new working pattern requested by the employee is workable. 
  • Letter agreeing an extension to a trial period of flexible working Use this model letter to agree an extension of a trial period for flexible working, so that it can be established whether or not the new working pattern requested by the employee is workable. 
  • Letter agreeing that a trial period of flexible working will be cut short Use this model letter to cut short a trial period of flexible working. 
• British Airways Plc v Starmer [2005] IRLR 862 EAT The Employment Appeal Tribunal held that a decision to refuse an employee a request to work 50% of full time, and requiring 75% of full time, was unlawful indirect discrimination. The decision amounted to a provision, which was not justified by the employer on grounds other than sex. 

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Claimant rightly excluded from disciplinary hearing over fears of witness intimidation

Owen v Rhondda Cynon Taff County Borough Council ET/167033/2008

Date added: 1 September 2010

unfair dismissal | disciplinary procedure | violence in the workplace

This case is a useful example for employers of how to carry out a disciplinary investigation and hearing into a violent incident, when the alleged victim or witnesses might feel intimidated. 

Mr Owen had been a refuse collector for 12 years. Each team had three operatives and a driver. Tension had been growing between Mr Owen and another operative, Mr Wade, which seems to have derived from suggestions made by Mr Owen that Mr Wade was not pulling his weight. It was alleged that an incident occurred where Mr Owen verbally abused, used threatening behaviour towards and physically assaulted Mr Wade. 

After the employer had had an informal conversation with both men, it carried out a formal disciplinary investigation. A disciplinary hearing followed the investigation, and Mr Owen was dismissed for gross misconduct. 

Mr Owen brought a claim for unfair dismissal, complaining that there were various flaws in the disciplinary process, including that: 

• he had been suspended after the disciplinary investigation, but Mr Wade had kept his position;
• undue weight had been given to the evidence of the driver, Mr Jones, who did not witness the altercation;
• it was unfair to prefer Mr Wade's version of events when no one else witnessed the alleged assault;
• Mr Wade's wife had been allowed to accompany him at the investigatory interview;
• Mr Boucher, the third operative on the lorry that day, had not been interviewed;
• Mr Wade had not wanted to take the matter further, so the employer should have discontinued the disciplinary action; and
• he had been excluded from the disciplinary hearing while Mr Wade and Mr Jones gave their evidence. 

The employment tribunal rejected the unfair dismissal claim. It said that:

• the employer was entitled to suspend Mr Owen in light of the balance of the evidence revealed during the investigatory stage, particularly evidence relating to his provocative behaviour towards Mr Wade prior to the incident;
• the employer was right to take into account (but not to rely solely on) the evidence of the driver, Mr Jones, who was able to indicate that Mr Owen had been riling Mr Wade in advance of the alleged fight;
• the employer preferred Mr Wade's version of events because Mr Owen had admitted the substance of the allegations made against him and the only real uncertainty was whether or not Mr Wade pointed his finger in the claimant's face;
• allowing Mr Wade, who was acknowledged to be shy and nervous and to have a stammer, to be accompanied by his wife at the investigatory interview did not give him an undue advantage (although allowing one party to have legal representation at this stage might have resulted in undue advantage);
• the other operative, Mr Boucher, should ideally have been interviewed for the sake of completeness, but this was not strictly necessary as he had not seen the incident; and
• the employer was entitled to take its own view of the seriousness of the allegations and to go ahead with the disciplinary proceedings against the wishes of the alleged victim, who might have had other reasons for wanting to stop the disciplinary action. 

Having swiftly dismissed most of the claimant's arguments, the employment tribunal spent more time considering whether or not it was fair to exclude Mr Owen from the disciplinary hearing when the alleged victim and a key witness were giving their evidence. The tribunal described this as "by far the most significant submission" by the claimant. 

The employment tribunal examined the issue from two angles: the validity of the employer's reasons and the degree of disadvantage to the claimant. It concluded that:

• the employer had been motivated by a genuine concern for the intimidation that Mr Wade, who was a "short, quiet, shy, timid" man, might feel when giving evidence in front of Mr Owen, who was a "big, strong, vocal" individual; and
• although the employer had given less thought to the reasons for excluding Mr Owen during Mr Jones's testimony, it again believed that intimidation might be a factor. 

The tribunal went on to conclude that Mr Owen had not been disadvantaged by his exclusion, as he had been given interview notes a few days before the disciplinary hearing. The interview notes did not differ significantly from the witnesses' testimony in the disciplinary hearing. 

Additional resources

• How far should an employer go in investigating a disciplinary issue? Most employers will be aware that, to justify a misconduct dismissal, an employer must have an honest belief in the employee's guilt, based on reasonable grounds, following as much investigation into the issue as was reasonable in the circumstances. As consultant editor Darren Newman explains, the issue of just what a "reasonable" investigation looks like was reopened in the case of Salford Royal NHS Foundation Trust v Roldan. 
• Good practice guide on conducting disciplinary investigations A fair investigation to gather all the relevant facts provides the backbone of a fair misconduct dismissal.