In the employment tribunals: November 2010

XpertHR provides summaries of recent employment tribunal rulings. 

Golf club fairly dismissed employee for excessive personal internet use at work
“Insidious campaign” by manager against part-timer led to constructive dismissal
Failure to provide stool for disabled employee was disability discrimination
Pilot fairly dismissed for dangerous helicopter manoeuvre
“Voyeur” employee fairly dismissed
Unfair for small employer to have one person in charge of whole disciplinary process
Employee’s sick leave was really due to disciplinary sanction
“Bomb threat” employee fairly dismissed for bringing employer into disrepute
Employee fairly dismissed following adverse CRB disclosure
Dismissal due to third-party pressure was unfair and breach of Acas code
Pregnancy discrimination: £46,500 award after employer’s “obdurate refusal” to give statutory maternity pay
Tribunal holds that Acas code applies to dismissals for “some other substantial reason”
Bribery: employee fairly dismissed for accepting laptop and printer from contractor

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. 

Back to top

Golf club fairly dismissed employee for excessive personal internet use at work

Birchall v Royal Birkdale Golf Club ET/2104308/09

Date added: 30 November 2010

unfair dismissal | internet use | policy

An employment tribunal found that a golf club fairly dismissed an employee for excessive personal internet use during working hours, despite the fact that it did not have a formal policy on staff use of the internet. 

Mrs Birchall had worked for Royal Birkdale Golf Club since 1994 and as assistant secretary since 1999. Her line manager was the secretary, Mr Gilyeat. She and some of her colleagues had a strained relationship with Mr Gilyeat. She had a good record until June 2008, when she was given a final written warning for, among other things, leaving work without permission and accepting free accommodation with a hotel in return for recommending it to club visitors. The warning did not give the exact dates during which it would remain live, but it was clearly stated to be a warning lasting 12 months. 

Although the club had a written disciplinary procedure that gave "inappropriate use of internet" as an example of gross misconduct, it did not have a written internet policy. Mr Gilyeat (who was also in charge of the club's policies and procedures) did not at any time take steps to ensure that employees were aware of the club's informal stance that personal internet during working time had to be "reasonable" and not "excessive". This was despite concerns that the club had that some staff were using the internet excessively. 

Mrs Birchall was aware through custom and practice that, although personal internet use was allowed outside working time (for example, during lunch breaks), there was a "general understanding" that accessing the internet for private matters for substantial periods of time during working hours was not allowed. 

On 19 December 2008, a meeting took place after kitchen staff were suspected of accessing pornography through a work computer, causing it to crash. Mr Gilyeat did not clarify the club's internet policy during the meeting, although he did make clear that it could monitor staff internet use. Monitoring software was uploaded onto the work computers in January 2009, but Mrs Birchall was not at work on the day on which this was done. 

On 8 May 2009, Mr Gilyeat interviewed a number of employees about internet use during working hours. He asked all of them, with the exception of Mrs Birchall, about their understanding of the internet rules. The general response was that "limited personal use of the internet during the day" was permitted. For some reason, Mrs Birchall was not asked this question. 

Mr Gilyeat concluded his investigation by 19 May 2009. Mrs Birchall was told that her internet use was excessive, and that her employment could be terminated because she was already on a final written warning. She was provided with the investigation report, which was the first written evidence of the club's policy on internet use. It said that "the Club allows staff reasonable use of the Club's internet facilities for personal use on the basis that any extended personal use does not take place in work time and provided it does not interfere with his/her work". 

The report concluded that Mrs Birchall had used the internet for non-work reasons for a total of three hours and 28 minutes during the five-day monitoring period. 

A disciplinary hearing took place on 15 June 2009. Mrs Birchall's representations included that the club's monitoring of her internet use had been "illegal and covert". While she could not deny that the usage report was correct, she complained about inconsistencies with the approach, including her belief that another employee had been away during part of the monitoring period and that that employee's monitoring had ended prematurely because of technical difficulties. Mrs Birchall also argued that a grievance that she had raised against Mr Gilyeat had influenced the decision. 

Mrs Birchall was informed in a letter dated 24 June 2009 that she was being dismissed. It stated that she had used the internet excessively, despite being aware of the club's rules. Her appeal was subsequently rejected at a hearing on 5 August 2009. The club made some concessions during the appeal process, including changing some of the dates that it used to judge the level of her internet use. 

The employment tribunal rejected Mrs Birchall's unfair dismissal claim, and made the following observations:

• The disciplinary action (both the final written warning and subsequent dismissal for the internet misconduct) was taken against Mrs Birchall for genuine reasons, and not because she had raised a grievance against Mr Gilyeat. In fact, the earlier misconduct problems were probably sufficient to justify dismissal. It did not matter that the reason for Mrs Birchall's dismissal was entirely unrelated her earlier misconduct. 
• The absence of exact start and end dates in the final warning did not render the process unfair. It was sufficient that Mrs Birchall was aware that any repetition of "this behaviour or other misconduct during this time" would not be tolerated. 

The main issue for the tribunal was how well the internet policy had been communicated to staff. It noted that there were no clear rules as to how much time an employee could spend on personal internet use during working hours. However, the employment tribunal found that Mrs Birchall had gone well beyond the line of what she or the club would have regarded as "reasonable use". While a written policy would have been preferable, the club's internet policy was not so vague as to make it unreliable. 

The employment tribunal concluded that the internet misconduct was the real reason for Mrs Birchall's dismissal and the decision to dismiss her was within the band of reasonable responses, especially given her earlier serious misconduct. 

Additional resources

• Email and internet policy for employees Use this model policy to outline the details on the use of e-mail and the internet at work. 
• How to protect against issues arising from employee email and internet use There is no doubt that employee email and internet use can expose an employer to potential liabilities if the parameters of that use are not made clear. XpertHR provides advice on the issues that might arise from employee email and internet use. 

Back to top

“Insidious campaign” by manager against part-timer led to constructive dismissal

Mason v Leaders Ltd ET/3103746/09

Date added: 25 November 2010

constructive dismissal | bullying

In this case, a manager’s continued bullying of a part-time worker led to a finding of constructive dismissal. 

Mrs Mason worked part time as a property inspector for Leaders Ltd, a lettings agent. She had worked for the company and its predecessors for over 16 years, but problems arose immediately after Mr Ball was appointed area manager in April 2009. 

In mid-May 2009, Mr Ball expressed dissatisfaction with the way Mrs Mason completed her reports, and arranged for her to receive training. The trainer concluded that Mrs Mason needed little training. Around two weeks later, Mr Ball removed some files from Mrs Mason and gave them to another employee to deal with. Although Mr Ball claimed at the tribunal hearing that he removed 30 files, the tribunal preferred the evidence of Mrs Mason, who said that there were only two files and that she was going to complete them the next day. 

The next incident occurred when Mrs Mason returned to her office one day to find, without having been given prior notice, that her desk had been removed, and her personal property stacked on an adjacent desk. Mr Ball told her that the desk was required for another office, and that he told a colleague to inform Mrs Mason of the move. The colleague made a statement saying that she had no recollection of Mr Ball asking her to do this. 

In early June 2009, Mrs Mason returned from some property inspections to be told by Mr Ball, “I’m surprised you were not back earlier”, despite her timing appearing reasonable and consistent with good practice. On 10 June 2009, Mr Ball instructed a colleague to sent Mrs Mason diary appointments for a five-day period. The first day comprised of 12 appointments and the fifth of 13. Given that Mrs Mason worked from 11am to 3pm, and that each appointment could last up to 30 minutes, with travel time 12 appointments could take nine hours, which would greatly exceed her working day. Mr Ball said that he intended the appointments to be shared between Mrs Mason and other inspectors, but the email with the appointment times specified that Mrs Mason was to perform them. 

By 11 June 2009, Mrs Mason felt that Mr Ball’s behaviour was rude and bullying, and that he was intent on getting rid of her and replacing her with a full-timer. She resigned that day by email. Later the same day, Mr Ball sent an internal company email stating that he was going to replace Mrs Mason with a full-timer and that he had someone in mind. At Mrs Mason’s exit interview she expressed her concerns about Mr Ball’s bullying behaviour. The company used an HR consultant to deal with her complaints as a grievance, and the consultant concluded that there was a “personality clash” between Mrs Mason and Mr Ball that “grew over time”. 

Mrs Mason claimed constructive dismissal. The tribunal preferred her evidence to that of Mr Ball, and concluded that there was “an insidious campaign against her conducted by Mr Ball to make life unpleasant” and induce her to resign. The tribunal found that his behaviour constituted a breach of the implied term of trust and confidence, and that Mrs Mason was entitled to resign and treat herself as being constructively dismissed. Accordingly, the tribunal upheld her claim. 

Additional resources

• How to protect against claims of constructive dismissal In law, a constructive dismissal takes place when an employee resigns in response to a fundamental breach of the employment contract by his or her employer. This means that, although the employee has apparently resigned, the termination of the contract is treated as a dismissal. 
• Get more information on constructive dismissal in the XpertHR FAQs section, which answers the following questions:
  • Can an employee claim unfair dismissal if he or she has resigned?
  • How can an employer prevent a possible discussion about a compromise agreement resulting in a claim for constructive dismissal?
  • Must an employee have been employed for a particular period of time before he or she can claim constructive dismissal?

Back to top

Failure to provide stool for disabled employee was disability discrimination

West v Lewis t/a Squires Model & Craft Tools ET/3100947/09

Date added: 24 November 2010

disability discrimination | reasonable adjustments | constructive dismissal

This case is a good example of an employer committing disability discrimination by failing to make a simple adjustment for a disabled employee. 

Mrs West was employed by Squires Model & Craft Tools as a sales assistant in its hobby and craft shop. In February 2008, she went on sick leave due to osteoarthritis, and underwent a hip replacement operation in April 2008. On 26 June 2008, while Mrs West was still on sick leave, the company wrote to her about a potential sickness termination process. It obtained Mrs West’s consent for a medical report from her GP, but did not obtain the report, on the basis that it would have cost around £200. 

While Mrs West was on sick leave, she requested three or four times that the company provide her with a stool behind the shop counter, so that she could sit from time to time to ease her pain. She was being investigated by doctors for Cushing’s syndrome, which they believed was causing weakness in her legs and which made it impracticable for her to stand all day without resting. The company denied this request, stating that she needed to remain mobile during the whole shift, and that it was not practicable to have a stool behind the counter anyway, as that space was sometimes used to unpack deliveries. The company gave no consideration to the potential cost of a suitable stool, even though Mrs West’s request was supported by a letter from her GP. 

Mrs West returned to work on 8 September 2008, because her statutory sick pay had run out, and was told by managers that she was not permitted to sit down when behind the shop counter. On 20 September 2008, Mrs West went home ill, and in early October she was diagnosed with Cushing’s syndrome, which was caused by a tumour on her pituitary gland. She did not want to return to work for the company while it continued to refuse to provide her with a stool or permit her to sit when needed, and was worried about an upcoming operation to remove the tumour. She was actively seeking alternative employment. 

On 29 November 2008 Mrs West, who wanted to “tidy up” her employment, resigned. She claimed disability discrimination, in respect of the company’s failure to make a reasonable adjustment by providing her with a stool, and constructive dismissal. 

The tribunal found that the company had applied a provision, criterion or practice on its employees, namely requiring them to remain standing at all times when on duty behind the shop counter, and refusing to permit them to sit. It held that Mrs West was disabled, and that the company had failed in its duty to make reasonable adjustments for her by denying her request for a stool. The tribunal awarded Mrs West £6,000 for injury to feelings. 

However, the tribunal rejected Mrs West’s constructive dismissal claim. It found that, although the company’s failure to make a reasonable adjustment by providing her with a stool was a fundamental breach of the implied term of trust and confidence, that failure was not the reason for her resignation. The tribunal found that she had resigned for a combination of reasons arising from her operation to remove her tumour, and that in any event her delay of over two months between the last act of discrimination (on 23 September 2008) and her last working day was fatal to her claim. 

Additional resources

• How to support an employee who becomes disabled Where an existing employee becomes disabled, either gradually as a result of the onset of an illness or suddenly as a result of an accident, the employer must address the issue of what reasonable adjustments could be made to accommodate the employee's needs and facilitate his or her retention in employment. 
• Get more information on reasonable adjustments for disabled employees in the XpertHR FAQs section, which answers the following questions:
  • Is an employer breaching the Equality Act 2010 if it fails to make adjustments for a disabled person?
  • What reasonable adjustments could an employer consider if it employs a member of staff with a disability that fluctuates?
  • What can an employer do if it is concerned about the costs of making reasonable adjustments that would enable it to recruit a disabled person?

Back to top

Pilot fairly dismissed for dangerous helicopter manoeuvre

Harding v PremiAir Aviation Services Ltd ET/2340767/09 & ET/2352336/09

Date added: 22 November 2010

unfair dismissal | some other substantial reason | third-party pressure

In this case, a third party’s insistence that an employee be removed from its operations left his employer with no choice but to dismiss him. 

Mr Harding was employed as a helicopter line pilot by PremiAir Aviation Services, which provides support for various police forces. He worked as a pilot for the Surrey police air unit, which has the right to determine which pilots work with it, and to remove any individual pilot from the unit if it so decides. The company’s chief pilot, Captain Belton, shared a difficult relationship with Mr Harding, and he had previously warned him about his flying style, both in relation to the manoeuvres flown and the height at which he flew. 

On 16 June 2009, Mr Harding was on duty at a “veterans’ day” at Fairoaks Airport. Shortly before 8pm, Mr Harding was returning to the airport with two police observers on board. Instead of landing the helicopter on its pad in the usual manner, he performed a manoeuvre called a “wingover”, which is usually used to avoid danger and can cause extra stress to the aircraft frame and the police equipment on it. 

Captain Belton became aware of Mr Harding’s manoeuvre and spoke to one of the observers on board at the time. The observer stated that the control tower had asked if Mr Harding could do something for veterans’ day, and Mr Harding had asked the observers if they were happy with that. The observers had confirmed that they were. Captain Belton obtained a video of the incident, which he thought was an impressive bit of flying, but potentially dangerous and certainly inappropriate. He spoke with the police unit, which decided that Mr Harding should not work with it any longer. 

The company informed Mr Harding that he was suspended from the unit, and met him on 4 August 2009 to discuss the matter. Mr Harding confirmed that he had carried out a wingover on the day in question, at the request of the control tower. The company invited Mr Harding to a disciplinary hearing, which took place on 14 August 2009. At the hearing, Mr Harding was shown the video of the incident, which he had not previously viewed. He acknowledged that the police could not have authorised the manoeuvre, which he admitted looked extremely serious. 

On 17 August 2009, the company informed Mr Harding that, although it found him guilty of gross misconduct, it was not dismissing him for that reason, on the basis that he had only two years left before retirement. Instead, the company dismissed him, with notice, on the ground that the police had required his removal from the unit, there being no further posts available in the company. Mr Harding appealed, but was unsuccessful, and claimed unfair dismissal. 

The tribunal found that, although the dismissal letter was ambiguous, the reason for Mr Harding’s dismissal was “some other substantial reason”, on the basis that the police required his removal from the unit. The tribunal stated that, where a third party has the right to require the removal of an employee from a position, and where there are no other posts available in the employer, “it is difficult to see how the dismissal could be anything but fair”. The tribunal found Mr Harding’s dismissal fair, and rejected his claim. 

Additional resources

• More tribunal cases on dismissals for "some other substantial reason":
  • Dando v Britannia Services Group Ltd ET/1610310/09 In this case, the tribunal held that a dismissal due to third-party pressure was unfair and in breach of the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website). 
  • Cummings v Siemens Communications Ltd ET/3500013/10 In this case, which concerned an employee who was dismissed after he refused to provide consent to his employer varying his terms and conditions, the tribunal held that the Acas code applies to dismissals for "some other substantial reason". 
• Get more information on gross misconduct in the XpertHR FAQs section, which answers the following questions:
  • What is gross misconduct?
  • In cases of summary dismissal, how does an employer legally define a serious breach of contract?
  • What can an employer do where it suspects that an employee has committed an act of gross misconduct, but has no concrete proof?

Back to top

“Voyeur” employee fairly dismissed

Forsyth v Lorne Stewart plc ET/3304547/09

Date added: 18 November 2010

unfair dismissal | gross misconduct | voyeurism

This unusual case involved an employee suspected of looking at a woman in a hospital toilet. 

Mr Forsyth worked as a maintenance engineer for Lorne Stewart, which provides engineering services for Chase Farm Hospital. On 2 June 2009, one of the company’s managers met with a female doctor about an incident involving Mr Forsyth. The allegation was that Mr Forsyth had acted as a “peeping Tom”, looking at the doctor in the female toilets from the men's toilets. The manager suspended Mr Forsyth and began an investigation. The hospital started its own investigation and passed the matter to the police. 

Mr Forsyth did not wish to attend an investigation meeting, but provided his version of events to the company by a letter of 23 June 2009. He alleged that on the day in question he was in the maternity block to do maintenance work. He was in the men's toilet applying ointment for a condition called pruritus, which explained why he was naked from the waist down at the time. He claimed that, while washing, he noticed that a panel beneath the basin was out of place, and that he repaired it. He heard a woman’s voice asking what someone was doing, but did not know who she was talking to, and so did not think it necessary to reply.  On leaving the toilet he was confronted by a doctor (and several members of the public), who accused him of looking at her in the toilet, and asked him why his trousers had been on the floor. He was embarrassed, and assured her that he did not look at her. In his statement, Mr Forsyth denied the allegation, and stated that he was not responsible for the poor state of the panels in the men's toilet. 

On 23 July 2009, the company received the hospital’s investigation report, which contained the full allegations made by the doctor. She alleged that she had been using the female toilets when she had noticed a maintenance worker looking at her through a gap in the wall, which afforded a direct view of the female lavatory. She said that she could see a pair of jeans on the floor in the male toilets and that, when she challenged the worker, he moved away without offering an explanation. 

On 5 August 2009, Mr Forsyth was charged by the police, and the company decided to proceed with disciplinary action against him. At the hearing on 26 August 2009, Mr Forsyth denied receiving the hospital’s investigation report from the company, and said it should have been sent to a different address than that given as his home address. The company offered to postpone the hearing until two days later, but Mr Forsyth did not want to come in at a later date. He refused to answer questions about events or give his version, relying instead on his written statement. He was summarily dismissed on 4 September 2009, and after his appeal against the company’s decision failed, he claimed unfair dismissal. 

The tribunal found that the company had a genuine belief in Mr Forsyth’s misconduct, and that it had reasonable grounds for that belief. At the disciplinary hearing he failed to give an explanation aside from his written statement, and the appeal officer found that his explanation was not credible. The tribunal found that Mr Forsyth had refused to engage fully in the disciplinary process, and that voyeurism “can plainly amount to gross misconduct”. As a result, it found that Mr Forsyth’s dismissal was fair, and rejected his claim. 

Additional resources

• Read more tribunal cases involving inappropriate behaviour in the workplace:
  • Adamson v Mitchells & Butlers Retail Ltd ET/1502919/09 In this case, a pub manager was fairly dismissed after his wheelie bin prank was caught on CCTV. 
  • Basi v Snows Business Forms Ltd ET/3100944/2009 In this case, an Indian claimant was awarded £2,000 for a "monkey" comment made during a game of golf. 
  • Craddock v Fontoura t/a Countyclean ET/1402999/09 In this case, a business owner was found guilty of sexual harassment when he insisted on "playing cupid" between staff. 

Back to top

Unfair for small employer to have one person in charge of whole disciplinary process

Henshaw v Touch Tanning Ltd ET/2605284/09

Date added: 17 November 2010

unfair dismissal | disciplinary process | misconduct

A family-run business made the classic mistake of having one person act as "judge, jury and executioner" in a disciplinary procedure against an employee accused of misconduct. 

Ms Henshaw worked as a part-time receptionist in a tanning salon. An 18-year-old girl asked to use one of the sunbeds. The salon has a procedure whereby new customers have to fill in a self-analysis form to determine how many minutes they can spend on a sunbed, up to a maximum of eight minutes. Time on the sunbeds is allocated using two-minute tokens. The form also comes with literature on the dangers of using sunbeds and contains a disclaimer, which the employment tribunal later acknowledged was a regulatory requirement for the salon's licence and a requirement of its insurers. 

The teenaged girl was a new customer so she should have been asked to fill in a form. Ms Henshaw did not ask her to fill in a form, something that she admitted she knew she was supposed to do. She said that this was a "one-off incident" and that she was normally careful to have the forms signed. Her explanation was that it was a slow day during which she felt tired and lethargic, and that the customer seemed to know what she wanted because she had asked specifically for six minutes on the sunbed. 

Brenda Shirley, one of the directors of the company, asked the customer afterwards if she had enjoyed the session and, during the course of the conversation, formed some concerns. Brenda Shirley was concerned because the customer looked quite young (a law was due to come into force banning individuals under 18 from using tanning beds) and she had a very pale complexion. It emerged from the conversation that the customer had not been asked to sign the required form. 

Brenda Shirley tasked her daughter, Linda Shirley (a former director of the company), with carrying out an investigation. Ms Henshaw was invited to an informal investigatory meeting (attended by Brenda Shirley and her daughter Linda) at which the view was formed that she should be suspended pending a formal investigation. A formal investigatory meeting was held a few days later, which was also attended by Ms Pepper, Ms Henshaw's line manager. At this meeting, Ms Pepper complained that she had been harassed by Ms Henshaw about the allegations made against her and that Ms Henshaw's boyfriend was "not particularly cordial to say the least" when he came to collect her wages while she was suspended. 

Ms Henshaw was sent a letter inviting her to a disciplinary hearing, with the allegation made that she had failed to comply with the procedures relating to the disclaimer and skin-analysis form. The disciplinary hearing was rescheduled several times as Ms Henshaw was signed off sick and was then away on holiday, but it eventually went ahead in her absence. By this point, Ms Henshaw had indicated to the company that she would not be attending anyway because of the company's refusal to allow her to be accompanied by her boyfriend, who had earlier caused trouble when he had gone to collect her wages while she was suspended. 

The disciplinary hearing (presided over by Linda Shirley) resulted in the decision to dismiss Ms Henshaw for gross misconduct. She was informed in writing of the decision to dismiss her for "adverse and unreasonable behaviour in the workplace", with the company noting that her failure to follow the rules on the hire and use of sunbeds placed it at risk of prosecution and closure. It seems that her boyfriend's behaviour also played a part in the decision to dismiss. Ms Henshaw elected not to appeal, although changed her mind about a month later, which was well outside the company's five-day time limit for submitting an appeal after the original decision. 

The employment tribunal found that the company had breached the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) by having Linda Shirley (who was not even an employee of the company) undertake both the investigation and disciplinary hearing. It had no doubt that, had Ms Henshaw appealed in time, Linda Shirley would have taken on the appeal stage too. The tribunal described her as Ms Henshaw's "judge, jury and executioner". As well as being contrary to the spirit of the Acas code, this was also in breach of the company's own disciplinary procedure. While the tanning salon is a small employer, there was no reason why Ms Henshaw's line manager, Ms Pepper, could not have conducted the investigatory stage. 

While the employment tribunal felt that the company had a potentially fair reason for dismissing Ms Henshaw, it believed that the company had wrongly taken into account Ms Henshaw's alleged previous "bad attitude", which she had never been formally warned about. In addition, the tribunal thought that the employer had inappropriately taken into account the poor behaviour of Ms Henshaw's boyfriend, rather than concentrating on the matter in hand (her alleged misconduct). 

The employment tribunal also took into account evidence that the company's rules on monitoring the use of sunbeds were lax, and that it had overreacted in disciplining Ms Henshaw. The disproportionate severity with which it viewed Ms Henshaw's actions took the dismissal outside the range of reasonable responses. 

However, the employment tribunal went on to find that Ms Henshaw had contributed to her dismissal. She knew the importance of requiring customers to fill in the necessary paperwork in a job that she had done for five years. Her tiredness on the day in question was not an excuse. Her compensation was therefore reduced to zero. 

Additional resources

• Disciplinary procedures: model documents The XpertHR policies and documents section includes a model:  
• Order of proceedings for a disciplinary hearing; and
• Order of proceedings for a disciplinary appeal hearing. 
• Line manager briefing on employee misconduct This line manager briefing covers the topic of employee conduct and aims to provide guidance on the effective management of employees whose conduct at work is unsatisfactory. 

Back to top

Employee’s sick leave was really due to disciplinary sanction

Whelan v London Underground Ltd ET/3303109/09

Date added: 17 November 2010

unfair dismissal | sick leave | medical reports

This case deals with a common situation faced by employers: an employee who, faced with a disciplinary sanction, goes on sick leave. 

Mr Whelan worked as a train maintainer for London Underground. In July 2007, as a result of disciplinary proceedings against him, he was downgraded for six months, which was a sanction that the company was contractually allowed to impose. Around that time, Mr Whelan went on sick leave, purportedly for back pain and stress. He did not return to work until 17 February 2008. During this period of absence, the company obtained occupational health reports that stated that Mr Whelan was fit for work, but that he was not willing to return until he was restored to his previous grade. Although his GP signed him off for this period of absence, Mr Whelan admitted later that the GP was acting on his instructions. 

On 17 February 2008, when Mr Whelan returned to work, the company informed him that the downgrading sanction had not been properly implemented, and that it would take place from 22 June until 8 December 2008. Mr Whelan went off sick from 22 June until 3 July 2008, and from 16 July 2008 until his eventual dismissal. He claimed that this absence was due to workplace harassment. 

Following an appeal by Mr Whelan against the downgrading sanction, the company reinstated him to his original grade and pay from 14 September 2008 onwards. The company sought access to Mr Whelan’s medical records to assess his health, but he refused to provide consent. On 31 October 2008, the company invited Mr Whelan to a meeting to discuss his continued absence, warning that his employment was at risk. 

At the disciplinary meeting on 13 November 2008, Mr Whelan said that he “felt excellent”, but that he had obtained a doctor’s note signing him off due to scarlet fever. In fact, the GP certificate referred to stress as being the reason for his absence. At a further meeting on 18 December 2008, Mr Whelan admitted at least twice that he was absent from work due to the downgrading sanction. 

The company decided to take disciplinary action, and invited him to a meeting to take place on 5 May 2009, to address allegations of failing to cooperate in being assessed by occupational health, and leading the company to believe that his absence was for reasons other than his health. When asked whether or not his absence was due to the downgrading, Mr Whelan was equivocal, but did not deny the allegation. Mr Whelan was dismissed with notice, and claimed unfair dismissal. 

The tribunal found that it was “far from coincidental” that Mr Whelan’s initial sickness absence was for almost exactly the period that he was due to be downgraded. It also found that his absence from 22 June 2008 onwards was a reaction to being informed of the company’s decision to implement his downgrading from June to December that year. The tribunal found that the company had followed a fair procedure, and that it had reasonable grounds for believing that Mr Whelan was absent not as a result of genuine illness, but because of a disciplinary sanction taken against him. It held that Mr Whelan’s dismissal was fair, and rejected his claim. 

Additional resources

• How to obtain and use medical reports on employees Deal with medical report issues lawfully with our "how to" guide. 
• XpertHR's policies and documents service provides a number of model documents on medical reports, including:
  • Obtaining medical reports policy Use this model policy as part of the company's policy manual or staff handbook. 
  • Letter notifying an employee of plans to request a medical report Use this model letter when you wish to seek a medical report from an employee's GP or specialist. 
  • Form for an employee to consent to a medical examination Use this model form when you have asked an employee to undergo a medical examination for an employment related reason and you wish to see the resulting report. 

Back to top

“Bomb threat” employee fairly dismissed for bringing employer into disrepute

Tyler v William West Ltd ET/2318420/10

Date added: 11 November 2010

unfair dismissal | gross misconduct | employer’s reputation

This case concerned an employee who was fairly dismissed for causing a bomb scare and bringing his employer into disrepute. 

Mr Tyler was employed as a delivery driver for William West Ltd, which is a printing and stationery company. He had a good employment record until 23 February 2010, when he was due to make a delivery at Canary Wharf. When attempting the delivery, Mr Tyler became irritated at a perceived delay by the security guards searching his van. Mr Tyler’s response to this was to refuse to answer the guards’ questions. 

He declined to give them his name or the delivery address, and sounded the van’s horn for between 20 seconds and two minutes. He stated that he did not care if Canary Wharf was “blown to smithereens” and that it was an “eyesore”, and then drove away at speed. 

The security guards called the police, and reported a bomb threat. Mr Tyler was arrested and spent the rest of his working day in a police station, and was eventually released without charge. His van, marked with the company’s livery, ended up parked in a public place with a “police aware” notice with flashing lights. As the tribunal noted, “this was not the impression that the [company] would wish to give its customers”. The police later informed the company that the incident had been very costly, and had had an impact over a wide area. 

The company was concerned that the incident might affect its relationship with customers, and risk the loss of accounts. It suspended Mr Tyler on 24 February 2010, expressly forbidding him from communicating with any employees, contractors or customers. Despite this, later that day Mr Tyler went to Canary Wharf and threatened the security guards with legal action. 

The company conducted an investigation into the incident, but did not interview or take a statement from Mr Tyler about his version of events. At the disciplinary hearing, Mr Tyler made it clear that he accepted no blame for the incident, stating that it was entirely the fault of the security guards. On 15 March 2010, the company summarily dismissed Mr Tyler for bringing it into disrepute, and because of his belief that he was in no way to blame for the incident, which showed that he would behave in a similar manner in future. Mr Tyler's appeal against his dismissal was rejected on 20 April 2010, and he claimed unfair dismissal. 

The tribunal found that it was not good practice for the company to have failed to take a statement from Mr Tyler prior to the disciplinary hearing. However, the tribunal found that this error was rectified at the disciplinary hearing, when Mr Tyler was given a full opportunity to put his case. Moreover, the letter suspending Mr Tyler had set out fully the charges against him, thereby permitting him to prepare his case. The tribunal found that, although Mr Tyler had not acted with deliberate malice or premeditation, he did cause significant embarrassment to the company and potential damage to its reputation and business. It held that Mr Tyler’s dismissal was fair, and dismissed his claim. 

Additional resources

• Marsh v St Mary’s Community Centre ET/1807441/09 In this case, a charity began disciplinary proceedings against an employee on the basis of a letter, sent by her to an unwanted suitor, that it felt was improper and likely to bring it into disrepute. 
• Protecting your company's reputation While some conduct outside of work can be classed as a disciplinary offence, it largely depends on the conduct, the nature of the employee’s job, and the potential damage to the employer’s reputation. 

Back to top

Employee fairly dismissed following adverse CRB disclosure

Washington v First West Yorkshire Ltd ET/1810239/09

Date added: 10 November 2010

unfair dismissal | gross misconduct | CRB checks

This case is a good example of how to deal properly with an employee who does not comply with an organisation’s rules on Criminal Records Bureau (CRB) checks. 

Mr Washington was employed by First West Yorkshire as a driver in 2005. The company conducts CRB checks for drivers who carry vulnerable passengers, and it is a condition of all employees' employment that they disclose any unspent criminal convictions. In Mr Washington’s job application form, he had answered that he had never been convicted of any offence; he had no unspent convictions; and immediate dismissal would be reasonable and fair if the company later found that he did have convictions. 

The company had difficulty in getting Mr Washington to complete a CRB check form. In January 2009, the CRB indicated that there was a conviction recorded against an individual with Mr Washington’s name and date of birth. Mr Washington was required to provide fingerprint evidence so that the CRB could ascertain whether or not the identity of the convicted person matched Mr Washington’s. The enhanced CRB disclosure information came through on 28 April 2009, and gave rise to a very strong inference that the person with the conviction was indeed Mr Washington. 

At an investigation meeting on 8 May 2009, Mr Washington denied that he was the person with the conviction. The company provided him with details of how he could raise a dispute with the CRB regarding the disclosure. On 18 June 2009, Mr Washington told the company that the matter was being dealt with by a lawyer who worked for a firm called Martin Kaye, which had raised a dispute with the CRB. 

On further enquiry by the company, Mr Washington produced an email purportedly from his lawyer, whose name he said was Leslie Mountford. The company could find no solicitor of this name either at Martin Kaye or on the solicitors’ roll. The email used very poor grammar, and this put the company on alert. At a meeting on 15 July 2009, the company tried to contact Leslie Mountford using Mr Washington’s mobile phone, but was unsuccessful. At a further meeting on 17 July 2009, the company finally made contact with the person called Leslie Mountford, who admitted that he had not made any application under the CRB dispute procedure. Mr Washington professed to be shocked by this. 

The company decided to deal with matters under its disciplinary procedure, and held a hearing on 20 July 2009. When Mr Washington did not attend at the start of the meeting, his union representative invited the company to proceed in his absence. Mr Washington did arrive 25 minutes late, by which time the disciplinary officer had been through the evidence and decided to dismiss him. There appears to have been no dialogue between the disciplinary officer and Mr Washington, save for the confirmation of summary dismissal. 

The disciplinary officer’s reasons for dismissal were that Mr Washington had refused to participate in the CRB checking process; had been obfuscating the matter; and had made false statements as to the intervention of Leslie Mountford. The officer concluded that Mr Washington had simply asked someone to impersonate a solicitor to confirm that he was pursuing the matter. Mr Washington’s appeal, during which he had a full opportunity to put his case, was rejected on 23 July 2009, and he claimed unfair dismissal. 

The tribunal had concerns about the speed with which the company had handled the disciplinary and appeal procedures, but had sympathy given all that had preceded the dismissal. The tribunal held that, although there had been no real dialogue at the disciplinary hearing, this shortcoming was remedied on appeal, and that the dismissal was within the range of reasonable responses. The tribunal found that the company had ample reason to believe that Mr Washington was simply engaged in delaying tactics following the adverse CRB disclosure, and dismissed his claim. 

Additional resources

• How to deal with job applicants with convictions Deal with criminal conviction issues the right way with XpertHR's "how to" guide. 
• Policy on recruitment of ex-offenders Use this document as part of the company policy manual or managers' guidelines. It may also be given to job applicants. 
• Policy on employees charged with or convicted of criminal offences and convictions Use this model policy to set out how to manage employees charged with or convicted of criminal offences and convictions, when drafting a staff handbook or criminal charges/convictions policy. 
• Get more information on criminal record issues in the XpertHR FAQs section, which answers the following questions:
  • Will a job applicant have any redress if an employer refuses employment on the basis of a spent conviction?
  • Can an employer fairly dismiss an employee because he or she has a criminal conviction for football hooliganism?
  • If a firm decided that a criminal records check for a candidate for an approved person job was unnecessary and a later check revealed a criminal record, what might the consequences be?

Back to top

Dismissal due to third-party pressure was unfair and breach of Acas code

Dando v Britannia Services Group Ltd ET/1610310/09

Date added: 9 November 2010

unfair dismissal | third-party pressure | some other substantial reason | Acas code

Pressure from a third party to dismiss an employee can be a fair basis for dismissal, but employers must - according to this case - comply with the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website). 

Mrs Dando was employed as a cleaner by Britannia Services Group, and worked at an Outfit Clothing Store owned by the Arcadia Group, which was Britannia’s largest customer. On 30 September 2009, Mr Llamosa, one of Britannia’s area managers, visited the store. After a meeting with the store’s assistant manager, Ms Osbourne-Jones, he raised a number of issues with Mrs Dando. These included allegations that the cleaning in the store was poor, and that Mrs Dando had not been working her contracted hours. After the meeting, an upset Mrs Dando told a store employee that she had had “a pissing guts-full of Ms Osbourne-Jones”. 

Mrs Dando was unable to continue working and left the store. When she told her husband what had happened, he went to the store and made threatening comments about Ms Osbourne-Jones. Britannia’s evidence at the tribunal hearing was that Mrs Dando was present in the store at this time, although its basis for this was alleged CCTV footage that was never shown to Mrs Dando, and that had been destroyed by the time of the hearing. Mrs Dando denied being present. 

On 1 October 2009, Britannia informed Mrs Dando by text message that she was being suspended. Mrs Dando replied by letter denying that she had done anything wrong, but this was not received by Britannia until 5 October 2009. On the same day, Britannia wrote to Mrs Dando again, confirming that the reason for her suspension was a request by Arcadia to remove her from the site, due to concerns about her conduct, namely threatening and abusive behaviour. The letter invited Mrs Dando to a formal meeting to discuss the issues, and confirmed that, if no alternative position could be found for her, the outcome of the meeting could be termination of her employment for “some other substantial reason”, namely third-party pressure. After receiving Mrs Dando’s letter of denial, Britannia did not go back to Arcadia to put her points across. 

The formal hearing was conducted by Mr Llamosa, although Mrs Dando’s dismissal letter was signed by Mrs Shaw, one of Britannia’s owners. Mrs Dando’s appeal against her dismissal, which Britannia dealt with in writing, was unsuccessful, and she claimed unfair dismissal. 

The tribunal accepted that the reason for Mrs Dando’s dismissal was third-party pressure from Arcadia, and that this fell under the category of “some other substantial reason”. However, the tribunal found that Britannia did not act reasonably in treating this as a sufficient reason for dismissal, on the basis that a reasonable employer would have requested that Arcadia reconsider its stance after receiving Mrs Dando’s denials of the allegations against her. 

The tribunal also found that Mrs Dando’s dismissal process was seriously procedurally flawed, particularly with regard to the fact that Britannia failed to show her the CCTV footage, and to hold an appeal hearing. The tribunal held that the Acas code applies to dismissals for “some other substantial” reason where there is third-party pressure, on the basis that the code does not expressly exclude such dismissals from its scope, and that the “purpose of the code is to provide a fair framework when issues or problems arise in the workplace that could lead to action being taken against an employee or indeed dismissal”. The tribunal noted that, although the code does not explicitly require an appeal hearing, it is implicit in a fair procedure that an employee has an opportunity of explaining his or her points of appeal. 

Accordingly, the tribunal held that Mrs Dando’s dismissal was unfair. 

Additional resources

• Cummings v Siemens Communications Ltd ET/3500013/10 This is another case in which a tribunal held that the Acas code applies to dismissals for “some other substantial reason”, in this instance where an employee was dismissed and offered re-engagement after he would not agree to his employer varying his terms and conditions of employment. 
• Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466 EAT In this case, the Employment Appeal Tribunal held that an employer fairly dismissed an employee when a client refused to have him carry out work for it. 
• Contract clause on third-party pressure to dismiss Use this model contract clause when drafting an employee's contract or terms and conditions of employment when the employee works on the site of a third party, eg as a security guard, cleaner or caterer. 

Back to top

Pregnancy discrimination: £46,500 award after employer’s “obdurate refusal” to give statutory maternity pay

Quigley v Paul McGrory t/a Cafe Ole NIIT/01251/08

Date added: 4 November 2010

sex discrimination | pregnancy | statutory maternity pay | unfair dismissal

The industrial tribunal in Northern Ireland has awarded around £46,500 to an employee whose employer refused to pay her statutory maternity pay, in a serious case of sex discrimination that led to the claimant having health problems. 

Ms Quigley worked at a cafe in Londonderry that was owned by Mr McGrory. She worked between 40 and 45 hours per week, and was promoted to manager of both the cafes owned by Mr McGrory. Ms Quigley was paid between £240 and £280 per week before she became pregnant. Her hours were reduced to 30 hours per week when she became pregnant and she then received approximately £210 per week. 

When Ms Quigley became pregnant in November 2007, Mr McGrory appeared pleased and, when she met with him in March 2008, he assured her that he would be paying her statutory maternity pay (SMP). However, Ms Quigley claimed that, when she tried to give him her MAT B1 form, he refused to take it, saying that she should “hold on to it for him”. As a favour to Mr McGrory, she worked right up until the birth of her baby on 27 July 2008, with her waters breaking while she was at the cafe on 26 July. 

Soon after the birth, Ms Quigley invited Mr McGrory several times by text message to visit her to sort out her SMP, but he did not respond. He did eventually call her, but told her that his accountant had advised him that she was not entitled to SMP because she had been earning only £80 per week. Ms Quigley reminded Mr McGrory that she had in fact been earning up to £280 per week, but his response was that he had been putting only 15 hours of her working week "through the books". He suggested that she contact the social security agency and maintain the lies that he had already told, which she refused to do. 

In an attempt to resolve the non-payment of her SMP, Ms Quigley made contact with Mr McGrory several times in August 2008. He offered to pay her if she came back to work and even asked her to come in and conduct some interviews to find someone to cover for her while she was on maternity leave. 

Ms Quigley was upset and distressed by Mr McGrory’s treatment of her. She sought legal advice, and in September 2010 her solicitor wrote to Mr McGrory setting out her grievance. He did not respond to this or any other correspondence from her solicitor. She subsequently brought claims for, among other things, unfair dismissal and sex discrimination. 

The industrial tribunal had no hesitation in making awards for sex discrimination and unfair dismissal against Mr McGrory, who did not appear before the tribunal to defend the case. It concluded that the employer's failure to honour its contractual obligations in respect of Mr Quigley's SMP, and his subsequent attempts to have her join him in fraudulent actions against the social security agency, had fundamentally breached the employment relationship. She was awarded over £27,000 for unfair dismissal. 

The industrial tribunal also accepted that Mr McGrory had treated Ms Quigley less favourably on the ground of her pregnancy, and thereby her sex, by failing to pay her the SMP to which she was entitled. She was hurt, distressed and annoyed by the treatment and this had been exacerbated by the treatment being at a time when she ought to have been enjoying time with her new baby. The tribunal accepted that the treatment displaced that enjoyment and gave Ms Quigley such anxiety and concern that it triggered a period of anxiety and depression, as shown by the medical evidence. Ms Quigley’s compensation for injury to feelings for sex discrimination was £17,500. 

A total sum of just under £46,500 was awarded to Ms Quigley. 

Additional resources

• How to manage statutory maternity pay Ensure you are compliant with the law on statutory maternity pay with our "how to" guide. 
• Line manager briefing on basic maternity rights This line manager briefing covers the basic rights of employees who become pregnant and take maternity leave, including their right to statutory maternity pay. 
• Get more information on maternity pay with XpertHR's FAQs section:
  • How does an employer determine an employee's right to statutory maternity pay?
  • Which individuals are excluded from the right to claim statutory maternity pay?
  • How is statutory maternity pay calculated?

Back to top

Tribunal holds that Acas code applies to dismissals for “some other substantial reason”

Cummings v Siemens Communications Ltd ET/3500013/10

Date added: 4 November 2010

unfair dismissal | varying terms and conditions | some other substantial reason | Acas code

In this case, the tribunal held that the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) applies to dismissals for “some other substantial reason”. 

Mr Cummings was employed by Siemens Communications as a software engineer. In May 2009, the company determined that, due to poor business performance and budgetary issues, it needed to save costs. One of the company’s proposals was that the majority of its staff would be required to take 12 days’ unpaid leave between July and October 2009, which would result in a saving of approximately £2 million. 

The company consulted with an employee forum and the 969 affected employees, 968 of whom consented to the proposal and a change to their terms and conditions. Mr Cummings objected to the proposal on the basis that it would be difficult for him to manage financially if he was forced to take 12 days’ unpaid leave. He suggested to the company that, as an alternative to the proposal, he could save it an equivalent amount of money by working from home and not incurring travel costs. 

Although the company did not deal with Mr Cummings’ suggestion promptly, it ultimately decided for business reasons that this solution was not practicable, and rejected it. The company did agree that Mr Cummings could work from home on an informal basis when it was possible for him to do so. 

Mr Cummings was aware from the company’s consultation with him that, if he did not agree to the proposal, his employment might be terminated. He nevertheless continued to refuse to agree to the company’s proposal, and was summoned, by a telephone call from a manager, to a meeting to discuss the matter. Following the meeting, the company dismissed Mr Cummings on the basis that he had refused to accept the variation. The dismissal letter contained a revised contract, including a new unpaid leave clause in accordance with the company’s proposal, which Mr Cummings could sign and be re-engaged. He did not do so, and the company rejected his appeal against dismissal. Mr Cummings claimed unfair dismissal. 

The tribunal considered whether or not the "Acas code of practice on disciplinary and grievance procedures" applies to dismissals for some other substantial reason, which was the category into which Mr Cummings’ dismissal fell. The tribunal held that the code does apply to such dismissals. It found that, because the introduction to the code states that “a disciplinary situation includes misconduct and/or poor performance”, the code is not limited to only those two situations. The tribunal considered that, if dismissals for some other substantial reason were intended to have been excluded from the scope of the code, the code would expressly state that. 

The tribunal found that the company was in breach of the code by failing to provide Mr Cummings with a letter inviting him to his dismissal meeting. The tribunal stated that such a failure would ordinarily render the dismissal unfair. However, it felt that the company had complied with “the content of the spirit of the code”, in that the company had advised Mr Cummings of his right to be accompanied at the meeting and its subject, and had not “ambushed” him. The tribunal found that Mr Cummings was fully aware that he could be dismissed following the meeting if he did not agree to the company’s proposal. The tribunal also found that the company had acted reasonably in all the circumstances in dismissing Mr Cummings, and held that his dismissal was fair. 

Additional resources

• The XpertHR policies and documents section provides a number of model documents on varying terms and conditions of employment, including:
  • Letter seeking an employee's express agreement to a variation in contract terms Use this model letter when you wish to obtain an employee's agreement to a proposed change to one or more terms of his or her employment contract. 
  • Letter to an employee giving contractual notice of termination of employment and offering re-engagement on changed terms Use this model letter to impose a variation of contract by way of dismissal from the old contract coupled with continued employment on contractual terms as varied. 
  • Letter to an employee in an exercise of a contractual power to vary terms Use this model letter to confirm that a change is being made to an employee's terms of employment within the terms of the employee's contract. 
• Get more information on varying terms and conditions of employment in the XpertHR FAQs section:
  • Can an employer change an employee's hours where there is no contractual clause authorising it to do so?
  • What procedures must an employer follow if it needs to cut employees’ pay?
  • If, as a cost-saving measure, an employer asked its employees to work fewer days or shorter hours, can it require them to revert to their previous working pattern?

Back to top

Bribery: employee fairly dismissed for accepting laptop and printer from contractor

Esam v DSG Retail Ltd ET/2605279/09

Date added: 2 November 2010

unfair dismissal | bribery | inducements, gifts and favours policy

In this case, the employment tribunal found that an employee who breached her employer’s inducements, gifts and favours policy was fairly dismissed. The case is a good example of circumstances that might be covered by the Bribery Act 2010 when it comes into force in April 2011. 

Ms Esam’s job was to dispatch pallets of returned electrical goods that were beyond economical repair to “jobbers”, who were contractors who disposed of the scrap goods. The price of each pallet was determined by her line manager, but Ms Esam had control over which jobber received the goods. 

Allegations were made that Ms Esam received goods from a jobber, Mr Hill, and was selling stock on eBay on his behalf. Ms Esam had mentioned to Mr Hill that she was struggling to pay her mortgage and he said that he might have a job for her selling goods for him on eBay. Mr Hill brought to her home a laptop and printer for her to do the work, and also sold her some other goods at a discounted rate, such as a television. However, no actual selling on eBay ever took place, because of a delay in Mr Hill getting images of the goods to Ms Esam. She claimed that she later had a change of heart because she felt that there might be a conflict of interest, but did not return the equipment for five months. 

An investigation and disciplinary hearing took place that resulted in Ms Esam’s dismissal for gross misconduct, specifically for a breach of the employer’s “inducements, gifts and favours policy”. 

The employment tribunal rejected Ms Esam’s unfair dismissal claim. It found that there was no substance to her claims that the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) had not been followed because of unreasonable delays in the disciplinary process. It also rejected Ms Esam's argument that senior managers who had disobeyed instructions about purchasing goods in the past had not been disciplined. The senior managers’ circumstances were not similar enough to result in a lack of consistency. 

A key issue for the tribunal was whether or not Ms Esam knew that what she was doing was a breach of her employer’s rules. Although the inducements, gifts and favours policy was not incorporated into her contract of employment, Ms Esam conceded throughout that she had been aware that it was wrong for her to accept gifts and inducements. 

The tribunal went on to decide that the employer’s decision to dismiss Ms Esam was within the range of reasonable responses, albeit at the “harsh end” of the scale. The employer had come to the reasonable conclusion during the disciplinary hearing that, when the eBay project did not proceed, the laptop and printer became gifts. The employer’s conclusion that the purchase of goods such as the television from Mr Hill could be regarded as inducements was also reasonable. 

Additional resources

• Policy on accepting gifts Use this model policy as part of the company staff handbook or as part of employees' contracts of employment to set the rules on receiving gifts from customers, suppliers and others. 
• Get more information on bribery issues in the XpertHR FAQs section, which answers the following questions:
  • What are "adequate procedures" to prevent bribery under the Bribery Act 2010?
  • What criminal offences are created by the Bribery Act 2010?