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XpertHR provides summaries of recent employment tribunal
rulings.
“Borat” nickname for Polish employee was discrimination
Employee who attended work drunk was unfairly dismissed
Employees were not entitled to be accompanied at investigation meetings
Shop manager told older supervisor that she was "too old for sex"
Manager unfairly dismissed for saying he "didn't like black people" as a schoolboy
Employee not contractually obliged to drive fairly dismissed for losing licence
Small employer fairly dismissed employee for faking workplace accident
Reinstatement for installation engineer who caused damage after inadequate training
Tribunal orders reinstatement of unfairly dismissed care worker
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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“Borat” nickname for Polish employee was discrimination
Ruda v Tei Ltd ET/1807582/10
Date added: 23 August 2011
sexual orientation discrimination | race discrimination | harassment
This is a classic example of an ill-advised workplace nickname resulting in a successful discrimination claim.
Practical tips
Probably the only reason that Mr Ruda succeeded in his claims was Mr Scott’s honest admission in evidence that he had used the words in question.
Employers should put in place equal opportunities and anti-harassment policies and draw these to the attention of staff.
Such policies will assist an employer in defending a tribunal claim. An employer will be liable for discriminatory acts by its employees unless it can show that it took all reasonable steps to prevent the conduct in question. The policies will also help to prevent discrimination from occuring in the first place. |
In July 2007, Mr Ruda, who is Polish, began employment as a quality assurance engineer for Tei Ltd, an engineering company. In 2010, he brought a number of claims against the company, including race and sexual orientation discrimination.
Mr Ruda made over a dozen allegations about his treatment by the company and colleagues. The tribunal rejected the vast majority of the complaints, including that:
- a colleague had made remarks about “people from abroad”;
- someone had, on the ground of Mr Ruda’s race or national origin, kicked a ladder that he was working on;
- a colleague had described Mr Ruda as a “pig” and said that he hated him;
- someone, as an act of race discrimination and harassment, had thrown small pieces of paper into Mr Ruda’s face;
- a colleague had said to Mr Ruda: “I am not going to listen to this fucking foreigner. Who employed him?”; and
- a colleague had called Mr Ruda a “dickhead”.
With respect to each of these complaints, the tribunal preferred the evidence of the company’s witnesses to Mr Ruda's. It did not find Mr Ruda, for the most part, a credible witness. This was partly because he had been “less than honest” to the tribunal about his ability to communicate effectively in English. It was also partly because of assertions made by Mr Ruda about what proved to be his two successful complaints of discrimination.
Mr Ruda claimed that, in October and November 2007, he had been given the nickname “Borat”, after the television and film character, by one of his subordinates, Mr Scott, who admitted this at the hearing. Mr Ruda claimed that, in response to the nickname, he had taken to addressing colleagues with the phrase “I love you”, as a “personal way of diffusing situations in which he felt uncomfortable”. He denied that he had adopted this phrase because it was associated with the Borat character.
The tribunal did not accept Mr Ruda’s evidence about the phrase “I love you”, preferring Mr Scott’s account that he had suggested that Mr Ruda use this phrase on the basis that it “would be amusing”. This cast further doubt on Mr Ruda’s credibility, as did his claim that another subordinate, Mr Pagett, also called him Borat, a claim that the tribunal found to be false. Mr Ruda also claimed that he had asked Mr Scott “many times” to stop calling him Borat, but the tribunal found that this was also untrue.
Mr Ruda also claimed that, around the same time in 2007, Mr Scott had described him as “gay” and asked him “if he was wanking”, after questioning whether or not he had a girlfriend. Mr Scott admitted using these words, and the tribunal found that he had done so “on occasion”, rather than “every day” (as Mr Ruda’s version went). Contrary to Mr Ruda’s assertions, the tribunal found that Mr Pagett did not speak to him in that manner.
Mr Ruda’s “less than persuasive and less than honest” evidence resulted in most of his claims being rejected, but the tribunal held that he had been harassed on the grounds of race by Mr Scott calling him “Borat”. The use of the nickname created a degrading and humiliating working environment for him. The nickname also constituted direct race discrimination. The appropriate comparator – someone who had all the characteristics of Mr Ruda but was neither from Poland nor perceived to be of Eastern European origin – would not have had the nickname applied to him.
The tribunal considered that, although Mr Ruda had not complained about Mr Scott’s conduct at the time, he had started work with the company only in July 2007. Further, although the majority (if not all) of the company’s other employees had nicknames, the examples given to the tribunal were not in any way connected with the racial or national origins of the employees in question, but were associated only with personal characteristics that were not the subject of discrimination law.
The tribunal also held that Mr Ruda had been subjected to sexual orientation discrimination by Mr Scott’s use of the words “gay” and “wanking” towards him. It was not necessary for Mr Ruda to be gay for this claim to succeed. Further, the tribunal found that the application of the word “gay” was intrinsically associated with the use of the word “wanking”: they were not used separately. Mr Scott’s words created a degrading, humiliating and offensive working environment for Mr Ruda.
The company argued that Mr Ruda’s successful discrimination claims were out of time, the incidents having taken place in October and November 2007. It argued that, since the tribunal had rejected all Mr Ruda’s other discrimination claims, he could not allege that there was a “course of conduct” of discrimination so that the successful claims were in time.
The tribunal had “no doubt whatsoever” that the successful claims were significantly – nearly three years – out of time. However, it believed that it was in the interests of justice to exercise its discretion to extend the time limit for Mr Ruda’s successful claims. Both Mr Scott and Mr Pagett had been able to give clear evidence about the incidents in question, and the tribunal had been able to make findings of fact about the allegations. The tribunal took into account the fact that Mr Ruda was from outside the UK, and had a “degree of vulnerability” to the working practices that might apply in the UK by contrast to those in Poland.
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Employee who attended work drunk was unfairly dismissed
Ricketts v Parson Cross Domestic Abuse Project ET/2802125/10
Date added: 22 August 2011
unfair dismissal | gross misconduct | alcohol
As this case shows, it is not always fair to dismiss an employee for attending work under the influence of alcohol.
Practical tips
Although it is standard to include being under the influence of alcohol at work as an example of gross misconduct in a disciplinary procedure, employers should take time to investigate such an incident properly before making any decisions regarding disciplinary action, particularly where they are aware that the employee in question has an alcohol-related illness or problem.
The employer should obtain information on the employee's medical condition and consider it carefully. If the employee has a genuine problem and is taking steps to resolve it, the employer should consider supporting the employee and issuing a warning rather than jumping straight to dismissal. |
In August 2003, Ms Ricketts began employment at the Parson Cross Domestic Abuse Project, where she was a support worker for victims of domestic abuse. In 2007, she and a number of colleagues raised complaints about her manager, Ms Cox, who was attending work under the influence of alcohol. The project’s disciplinary procedure cites “working…under the influence of alcohol” as an example of gross misconduct, but no disciplinary action was taken against Ms Cox in respect of this.
Ms Ricketts had a history of sickness absence, and around 2008 suffered from stress. She saw an occupational health adviser, who explained to the project that her job was demanding, and that it was essential that the project have a policy on managing stress and the support available to help staff to cope with occupational stress.
In 2008, the project was aware that Ms Ricketts had, due to alcohol difficulties, entered into a detoxification programme. By 2010, Ms Ricketts had also undertaken “community alcohol detoxification”. A letter from her GP around this time confirmed that Ms Ricketts had been attending the surgery with ongoing anxiety, depression and alcohol dependence problems for the previous three years. Ms Ricketts had also told the GP that she felt that her problems were work-related, and that she was being bullied at work.
On 20 January 2010, Ms Ricketts appeared to be drunk while at work. Uncontested evidence from her colleagues stated that she was behaving strangely. When asked if she wanted a drink – meaning tea or coffee – she laughed “quite hysterically”. Her speech was slurred and her movements were very slow and deliberate. One witness remembered Ms Ricketts moving her hand as if to scratch her face, but missing, as if she could not coordinate her movements. The matter was reported to Ms Cox, who required Ms Ricketts to go home.
Ms Cox explained to Ms Ricketts that the company would follow its sickness absence procedure, and might obtain a doctor’s report. She also indicated that disciplinary action was appropriate. On 21 January 2010, the project chair, Ms Marsh, notified Ms Ricketts that she was suspended. Ms Ricketts said that she had an alcohol problem and was getting help. She also said that she was being bullied by Ms Cox, and that this “had been going on for years”.
On 1 February 2010, the project wrote to Ms Ricketts to confirm that, following an investigation, there was sufficient evidence to warrant further action. A disciplinary hearing was arranged for 12 February to address the allegation that Ms Ricketts had brought the project into disrepute by working while under the influence of drink. This meeting was later moved to 26 February.
Another member of the project, Ms Abdulla, emailed Ms Marsh on 9 February, stating that Ms Ricketts had previously raised concerns with her about funding at work. She said that Ms Ricketts had not told her that she was being bullied, but did say that she had had an issue with Ms Cox in the past. Ms Abdulla had advised Ms Ricketts to follow the grievance procedure.
The disciplinary hearing was chaired by Ms Marsh and Ms Abdulla. At the hearing, Ms Ricketts said that she had spoken to Ms Abdulla about being bullied, and gave examples of Ms Cox’s poor behaviour towards her. She said that she had not raised a formal grievance because she thought that she had already done so. With regard to the incident on 20 January, Ms Ricketts said that she had not been sleeping properly, and had drunk a bottle of cava and taken a sleeping tablet before going to bed. She said that she had stopped drinking recently, and that the incident was a one-off.
By a letter dated 26 February, the project confirmed to Ms Ricketts that she was being dismissed for gross misconduct. She appealed, arguing that the decision to dismiss was “punitive rather than…corrective”, and that a warning would have been appropriate. She said that she had not consumed alcohol for nine weeks prior to the incident. The appeal officer rejected the appeal, stating that the project had previously supported Ms Ricketts regarding her health problems, but that the full extent of her alcohol misuse was not made clear to her line manager and colleagues, with the result that the project’s support for that issue was limited.
Ms Ricketts claimed unfair dismissal.
The tribunal found that the project knew that Ms Ricketts had a problem with alcohol abuse that had led her to give up drinking, and that she had been absent due to stress that she attributed to the workplace. The project also knew that Ms Ricketts had issues concerning what she regarded as bullying and a lack of support for her in the workplace. There had been previous allegations against Ms Cox in relation to drinking and its effect on her in the workplace, for which no disciplinary action had been taken.
The tribunal held that the dismissal was outside the range of reasonable responses. The project had effectively singled out Ms Ricketts by comparison with its treatment of Ms Cox, and had not taken into account Ms Ricketts’ personal circumstances. The project should have made enquiries to satisfy itself as to the cause and effect of Ms Ricketts attending work drunk on 20 January, as well as the impact of the medication she was taking. Given the fact that Ms Ricketts’ GP had identified her alcohol difficulties as a medical problem, the project should not have treated the matter as a single act of misconduct.
The tribunal also found that the project’s disciplinary investigation was unreasonable. In particular, the project had failed to investigate Ms Ricketts’ allegations of bullying. The project should also have investigated her medical condition and its potential effects on her, particularly given that it knew that she had a pre-existing condition.
The tribunal upheld Ms Ricketts’ unfair dismissal claim but, on the basis that she had a responsibility to attend work in a fit condition, held that any compensation should be reduced by 10% due to her contributory conduct.
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Employees were not entitled to be accompanied at investigation meetings
Thomson and others v London Underground Ltd ET/3301388/10; ET/3301389/10 & ET/3301390/10
Date added: 17 August 2011
disciplinary procedures | investigation meetings | right to be accompanied
This case concerns three employees who felt that they had the right to be accompanied at investigation meetings.
Practical tips
This case is a useful reminder for employers that employees accused of misconduct do not have the statutory right to be accompanied at meetings that are purely investigatory in nature.
It is advisable for employers to make their position on this clear in their disciplinary procedure, to help avoid any misunderstandings or confusion.
The case also demonstrates that employers should take care when using a third party to conduct disciplinary investigations. The third party should not have any power to make disciplinary decisions – if it does, the company is inviting tribunal claims from employees arguing not only that they did not have the right to be accompanied, but that the disciplinary decision was premature and unfair.
It is acceptable for the third party to make recommendations regarding disciplinary action, but these should go no further than if the investigation was being conducted internally. Essentially, the investigator should recommend only whether or not there is a case to answer at a disciplinary hearing. |
Mr Thomson, Mr Cambe and Mr Faik worked for London Underground Ltd. On 8 December 2009, one of the company’s HR officers, Miss Brown, wrote to the three men to inform them that a formal complaint of harassment had been made against them by another employee. She explained that the complaint had been passed to the company’s external investigators, CMP Resolutions, which had appointed Miss Perkins to conduct an investigation.
Miss Brown’s letter stated that Miss Perkins would need to interview each of the men, and that anything they told her might be used as evidence in the case. She confirmed that, as this was a “fact-finding investigation”, the men did not have the right to be accompanied by a trade union representative or workplace colleague at the interviews with Miss Perkins.
On 16 December 2009, Miss Brown wrote again to the men, informing them that interviews with Miss Perkins had been arranged on 5 January 2010, at different times. The letter reiterated that the men did not have the right to be accompanied at the interviews.
Mr Cambe’s meeting on 5 January was due to take place first. He attended and wished to have Mr Cochrane, a trade union representative, accompany him. At the start of the meeting, Miss Perkins telephoned Miss Brown to ascertain whether or not Mr Cambe had the right to be accompanied, and was advised that he did not. In light of this, the meeting did not take place.
Mr Cochrane emailed Miss Brown to say that Mr Cambe had been denied the right to be accompanied. Miss Brown replied that Mr Faik and Mr Thomson were due to attend meetings later that day, and they were not entitled to trade union representation either. The reason that she gave for this was that the men had not been suspended: the company’s policy seems to be that only those who are suspended are entitled to representation at fact-finding meetings.
When the time came for Mr Faik’s interview, Mr Cochrane telephoned Mr Duncan, the company’s accredited manager for harassment, about accompanying Mr Faik. As a result of this call, Mr Duncan told Miss Perkins that Mr Cochrane should be allowed to sit in on the interview, but without participating. This arrangement was not acceptable to Mr Faik or Mr Cochrane, and the meeting did not go ahead. In light of what happened with these two meetings, Mr Thomson simply did not attend his meeting.
After the failed meetings, Miss Brown sought further advice on the legal position regarding the right to be accompanied. She was informed that the men did not have the right to be accompanied because no disciplinary action would result from a fact-finding interview. Miss Brown wrote again to the men on 11 January, restating the company’s position. She offered each of the men the chance to attend a further meeting with Miss Perkins on 4 February, reiterating that they would not have the right to be accompanied.
All three men attended, unaccompanied, their investigation meeting with Miss Perkins on 4 February. Mr Thomson attended a second investigation meeting on 19 February.
The agreement between the company and CMP Resolutions stated that the latter would, as part of its investigation services for an individual case, provide an indication of the recommended actions for the company after the investigation. Miss Perkins’ investigation report stated that the “weight of evidence” indicated that the complaint should not be upheld.
The three men brought claims alleging that they had been denied their statutory right to be accompanied at the investigation hearings.
The tribunal found that the purpose of the meetings with Miss Perkins was clearly investigatory only. It heard no evidence that Miss Perkins could impose any form of disciplinary action on the men at the end of the meetings: all she could do was make recommendations as to disciplinary action. The tribunal was not shown minutes of the meetings, so there was no basis on which it could conclude that, notwithstanding that the intention of the meetings was to confine them to fact-finding, that purpose had changed during the course of the meetings so that they became disciplinary in nature.
As there was no evidence that the meetings with Miss Perkins could result in the administration of a formal warning or the taking of some other disciplinary action, the men were not entitled to be accompanied at them. The “mere fact that, at the end of a disciplinary process, some disciplinary action might result” did not mean that any such disciplinary action would have resulted from the fact-finding meetings with Miss Perkins.
However, the tribunal noted that it is a "dangerous practice" for a company to allow an independent external investigator, appointed to consider an allegation of harassment, to reach conclusions, even provisional ones. This practice risks conveying to the complainant news that his or her complaint is upheld, despite the fact that there is a further and significant process to establish the guilt or otherwise of those apparently responsible. Such a practice has the further disadvantage of suggesting to the alleged perpetrator that a decision about guilt has already been reached.
The tribunal stated that there was no suggestion in this case that any conclusion reached by Miss Perkins would have been regarded as determinative of the company’s actions, but the tribunal could understand why the men may have thought that this might have been the position.
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Shop manager told older supervisor that she was "too old for sex"
Young v Emerson ET/2801092/10
Date added: 16 August 2011
age discrimination | harassment
In this case, a female employee was harassed on the ground of her age by her younger manager.
Practical tips
In the decision, the tribunal expressly considered alternative, non-discriminatory explanations for the events that took place. On balance, however, it preferred the claimant’s clear and consistent evidence over the respondent’s contradictory account.
The case is also a reminder that managers can be held personally liable for acts of discrimination.
Normally, however, an employee will pursue his or her claim against the employer, which will usually be vicariously liable for the acts of its staff. Employers should provide proper equal opportunities training to managers to reduce the chances of a discrimination claim. |
Mrs Young was employed as a supervisor at Thought Cards Ltd. She started work on 19 October 2009, and was 43 years old at the time. Her manager, Mrs Emerson, was 34 years old, and the rest of the staff were much younger than both women. Mrs Young was experienced in retail management.
Around 26 October 2009, just a week after Mrs Young began work, she failed to inform Mrs Emerson promptly about another member of staff’s absence. Mrs Emerson told her that she was “sick to fucking death” of her, and that she was “making allowances for [her] age”. Later that day, she accused Mrs Young of being “fucking noisy”.
On 4 November 2009, Mrs Young told Mrs Emerson that she had already received instruction in relation to a matter that Mrs Emerson wished to explain to her. Mrs Emerson replied “fuck you then”, and slammed her hand on a desk.
On 8 November 2009, at a staff meeting, Mrs Young completed a questionnaire handed to her by Mrs Emerson. Under a question about what she disliked about her job, Mrs Young wrote: “manager’s attitude when stressed”. Mrs Emerson was unhappy about this, considering it “out of order”. Mrs Young raised the issue of Mrs Emerson’s previous behaviour towards her. Mrs Emerson again told her that she was “making exceptions because of [her] age”.
Things improved somewhat during November 2009. In December 2009, Mrs Young asked Mrs Emerson when it might be appropriate to put herself forward for promotion. Mrs Emerson told her that she was the “oldest supervisor out of all the [company’s] shops”, and said that she would not recommend either her or the other supervisor, Ms Moore (who was 23 years old) for promotion, as promotion for one might upset the other. Mrs Emerson later told Ms Moore that “hell would freeze over” before she would put Mrs Young’s name forward for promotion.
Shortly before Christmas 2009, Mrs Young told Mrs Emerson that she had been to a nightclub. Mrs Emerson replied that Mrs Young was “showing her age”. Around the same time, Mrs Young brought in some music CDs to the shop, and Mrs Emerson told her that the CDs were “rubbish” and repeated that she was “showing her age”. On another occasion, Mrs Emerson told Mrs Young that she was “too old for sex”.
Around 20 January 2010, Mrs Emerson accused Mrs Young of using the business computer for personal use. The tribunal found that this accusation was false and arose out of a complete misunderstanding. Mrs Emerson did not carry out a proper investigation, and suspended Mrs Young within days. On 26 January, the company’s owners dismissed Mrs Young via a telephone call.
Mrs Young claimed age discrimination against the company and Mrs Emerson, but withdrew her claim against the company after it went into administration.
At the tribunal, Mrs Emerson denied most of the allegations against her. She was “adamant” that she had made no remarks to Mrs Young about her age. The tribunal considered whether or not the short working relationship between the parties ended as it did because they simply did not get on, with age having nothing to do with it. However, the tribunal concluded that Mrs Emerson did have a problem with Mrs Young’s age and maturity, and was “less than comfortable” in her presence, because she realised that Mrs Young was more experienced than the staff she was used to managing.
The tribunal found that Mrs Young’s dismissal was triggered by Mrs Emerson, even though the owners “fired the bullet that [she] had placed in the gun”. The tribunal found that Mrs Young’s version of events was the truth. It found that the reason she was dismissed was related to her age, which was an issue for Mrs Emerson, who “harassed and hounded” her from the start of her brief career with the company. Mrs Emerson’s actions constituted a continuing act of harassment on the ground of Mrs Young’s age.
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Manager unfairly dismissed for saying he "didn't like black people" as a schoolboy
Byrne v Warburtons Ltd ET/402304/10
Date added: 11 August 2011
unfair dismissal | racism | personality clash
The employer in this case had a laudable zero-tolerance policy on racism, but failed to take a common-sense view of the background to an accusation that a manager had made a racist comment.
Practical tips
Even when an employer has a zero-tolerance policy on racism, it still needs to look at the background to the comments or actions alleged to be racist and not view them in isolation.
For example, there may be cases where there is a genuine misunderstanding of words said; the accuser may be being oversensitive; or there may be personal animosity between the accuser and accused that could raise the possibility of a malicious complaint. |
Mr Byrne was a hygiene manager at a bakery. He has, as he admitted to the employment tribunal, a managerial style that is "not modern". While working there, he tended to shout and swear at people when he was not happy, irrespective of with whom he was dealing. It was accepted that he was "passionate about hygiene".
Mr Kulisewa, who is black, was seconded to a training position at the bakery. Although Mr Kulisewa was not a manager, he would take unilateral action about the training of Mr Byrne's staff. It was clear to everyone at the bakery that the two men did not get on.
There were a number of disagreements and incidents, including a suggestion from Mr Kulisewa that Mr Byrne was being racist when he told him to "lighten up" (an event that later confirmed to the tribunal that Mr Kulisewa is a man of "tender sensibilities"). There was also some evidence that Mr Kulisewa had waved a Sooty puppet or golliwog at Mr Byrne to provoke him during a Christmas party.
Mr Kulisewa raised a formal grievance in relation to eight complaints that he had about Mr Byrne and one complaint about another worker, Ms Cameron. Many of these complaints related to disputes about how things were done, but several were accusations of racism. Mr Kulisewa's allegations included that:
- Mr Byrne had said to him "Have you noticed that your office is the only one that is always dark?", which Mr Kulisewa claimed was an offensive reference to the colour of his skin;
- Mr Byrne told him "you people are troublemakers" (or perhaps "your people are troublemakers"), which Mr Byrne was alleged to have said a few days after he made a comment about "people from abroad" being allowed into this country after reading about a Nigerian bomber; and
- Ms Cameron had also called him a "troublemaker".
The complaints were investigated, but no action was taken. The disciplinary officer accepted the explanations that:
- Mr Byrne was making a genuine observation about the poor lighting in Mr Kulisewa's office, thinking that a bulb may have gone;
- Mr Byrne had been referring to the training department in general when he said "you people" or "your people" during a heated debate about training; and
- Ms Cameron often uses the colloquialism "How are you, trouble?" as a greeting.
However, the disciplinary officer did observe that Mr Byrne's management style needed to be improved and that he should go on a course for dealing with difficult people.
Shortly after the conclusion of the disciplinary process, Mr Kulisewa wrote to the company claiming that Mr Brennan, a member of Mr Byrne's team, had told him that Mr Byrne had said in the canteen a few months earlier that he did "not like black people".
About six of the members of staff who were said to be present when the comment was made were interviewed in a new disciplinary investigation. Only two remembered Mr Byrne saying something like this. According to Mr Brennan, Mr Byrne had said that he "didn't like black people as they used to beat him up at school". He did not remember thinking it was in any way racist. The testimony of the other witness, Mr Husher, was not altogether clear from the records. At first he said that he was sure that Mr Byrne had said "I don't like black people; they used to bully me at school". Later, Mr Husher said he was sure that Mr Byrne had said that he was bullied at school, but was "not sure if he said the first part".
Mr Byrne was interviewed during what the tribunal later described as an "exemplary" process (with two levels of appeal). Mr Byrne was adamant that he had been talking about "1972 school stuff" that had absolutely no bearing on his views as an adult. He pointed out that Mr Kulisewa had been trying to get him into trouble for eight months. Mr Byrne was dismissed after being allowed two appeals, with the reasons for the dismissal being summed up by the manager who led the second appeal hearing:
"The conversation in question may have been based in the past, but I find it unacceptable that one of my managers would use such insensitive language in the presence of their direct reports and in a public place, and for this serious lack of judgment and the conduct referred to above I am upholding the decision."
Mr Byrne claimed unfair dismissal.
The employment tribunal expressed concern that an entirely proper zero-tolerance policy on racism would, at times, stigmatise entirely anodyne turns of phrase. Mr Byrne was a man to whom colourful language came simply. He did not weigh the nuanced meaning of every word he said. The tribunal wondered whether it was reasonable for the company to expect all those working in an industrial setting to do so and to dismiss someone for gross misconduct for giving offence inadvertently, especially when the complainant was so easily offended.
The tribunal held that it could not be gross misconduct for Mr Byrne to say that, many years before, he had been beaten up by black pupils and so, at the time when he was beaten up, he did not like black people. The company had ignored evidence that Mr Byrne was talking about how he felt as a 12-year-old boy, not about his attitudes now.
The tribunal took into account the strong evidence from all the previous incidents (in relation to which Mr Byrne had been exonerated) that Mr Kulisewa was "out to get" Mr Byrne. Mr Kulisewa had clearly suggested that he was ready and willing to bring a race discrimination case if his grievances were not upheld.
All of these factors took Mr Byrne's dismissal outside the range of reasonable responses.
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Employee not contractually obliged to drive fairly dismissed for losing licence
Reilly v National Car Parks Ltd ET/1308566/10
Date added: 10 August 2011
unfair dismissal | driving disqualification | driving licence
The employer in this case fairly dismissed an employee who lost his driving licence, even though there was not an express requirement in his contract of employment that he be able to drive.
Practical tips
Where an employer views driving as an important or essential part of a job, it is always preferable for it to make holding a valid licence an express requirement in the contract of employment.
There is no specific requirement on an employer to look for an alternative job within the organisation for an employee who has lost his or her driving licence and can no longer do the job.
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A car parking business employed over 125 staff at Gatwick Airport. There were around 100 employees who were customer services assistants, including Mr Reilly. When Mr Reilly was recruited in September 2007, there was no requirement in the job advert for applicants to hold a driving licence, nor was he given a job description when he started. He did tell his employer that he had a licence, but this was on the employer's standard job application form and did not relate to his specific duties.
Soon after Mr Reilly took up his post, the employer began the practice of taking on recruits as customer services assistants only if they could drive. This was in response to pressure from the company's client, Gatwick Airport, to improve its speed of response. By the time of Mr Reilly's dismissal, there were only four or five out of its 100 customer services assistants who did not drive. However, Mr Reilly's contract of employment had never contained a clause requiring him to be in possession of a driving licence and his contract was not varied when it became normal practice for new recruits to meet this requirement.
In February 2010, Mr Reilly was banned from driving for 20 months after a drink-driving conviction. Mr Reilly reported this the day after the conviction to his employer and he was suspended pending a disciplinary investigation. At the subsequent disciplinary hearing, he was dismissed for gross misconduct on the basis that car use was essential to his job and he had lost his licence. On appeal, Mr Reilly argued that driving did not form an essential part of his employment and he did it merely to be helpful to his employer. His appeal was turned down and his dismissal confirmed in April 2010.
The employment tribunal held that it was fair for the employer to treat the loss of the licence as a sufficient reason to dismiss Mr Reilly. It was inconceivable that Mr Reilly was not fully aware that driving was an important part of his job. His argument that driving was not an important part of his job was unsustainable, since there were only a few non-driving customer services assistants working at the company at the time of his dismissal. It could not be said that no reasonable employer would have dismissed an employee in these circumstances.
The tribunal was critical of some aspects of the employer's procedure. It was concerned that the employer did not take Mr Reilly (who has reading difficulties) in detail through the reasons why it was impractical to retain him and why it was reluctant to look for alternative work for him, for example why it did not want to put out a request to other employees to see if it was possible to do a job swap.
In the end, the tribunal did not think that these flaws were sufficient to take the dismissal outside the range of reasonable responses. Mr Reilly had lost his licence, which was important to his job, through no one's fault but his own. The employer perhaps could have done more to keep him in employment, but he had become a noticeably less useful member of staff.
There was no specific requirement on the employer in these circumstances to look for an alternative job for Mr Reilly, as might have been the case in a genuine redundancy situation.
The tribunal rejected Mr Reilly's unfair dismissal claim.
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Small employer fairly dismissed employee for faking workplace accident
Evans v Universal Trade Frames Ltd ET/1303200/11
Date added: 4 August 2011
unfair dismissal | gross misconduct | health and safety | CCTV
In this case, a small employer’s careful disciplinary investigation, using CCTV footage, led to the successful defence of an unfair dismissal claim.
Practical tips
This decision is a good example of how a small employer can establish a successful defence to a potential unfair dismissal claim by conducting a thorough investigation. |
Mr Evans was employed as a UPVC fabricator by Universal Trade Frames Ltd, which manufactures UPVC windows and doors. Since early 2009, the company’s factory has had CCTV cameras that record events on the shopfloor. Mr Evans had a poor relationship with Mr Jones, a manager, and on 27 September 2010 submitted a formal grievance alleging that he had used foul language and aggressive behaviour. The company upheld the grievance and arranged for Mr Jones to receive training.
After two weeks’ leave, Mr Evans returned to work on 8 November, starting at 6am. At around 8.10am, another employee, Mr Owen, brought on to the shop floor some material that had been stored outside. Rain water caught in the material’s wrapping spilled on to the shopfloor, and efforts to mop it up were unsuccessful. Mr Owen placed a piece of cardboard over the water to soak it up.
At around 8.46am there was an incident. Mr Evans, who was carrying a door sash on which he had been working, fell to the floor and landed partly on the cardboard. Mr Kruger, the company’s managing director, arrived a few moments later, and asked what had happened. Mr Evans said that he must have tripped on the cardboard. A record of the incident was made in the accident book, and Mr Evans left for hospital, complaining that he felt unwell. He was off work sick for two weeks with a “neck and back injury”.
While Mr Evans was on sick leave, Mr Kruger contacted the company’s insurer, which advised that he investigate the circumstances of the incident. On 10 and 11 November, Mr Kruger and a representative of the insurer attended the factory and interviewed everyone who might have been a witness. No one had seen the fall, only the immediate aftermath. As a result, Mr Kruger examined the CCTV footage, and developed a suspicion that the alleged accident might not have been genuine.
On 15 November, Mr Evans was interviewed by the insurer’s representative and Mr Kruger, who “remained suspicious”. He gave an oral report to another manager, Mr Vickers, who examined the evidence and decided that disciplinary action should be commenced. He suspended Mr Evans and invited him to a disciplinary hearing to address the allegation that he had “dishonestly staged” the accident. Mr Evans was sent copies of the witness statements produced by the investigation, and a memory stick with the CCTV footage on it.
The disciplinary hearing was held on 7 and 10 December. Mr Evans disagreed with Mr Vickers’ assessment that the CCTV record showed him, shortly before the incident, moving the door sash that he was working on back to the rack from which he had earlier removed it, so as to be close to the scene of the spillage, but in a way that was contrary to the normal progression of the item through the production process. After the disciplinary hearing, Mr Vickers interviewed an experienced employee who trains new workers, whose view of the matter was the same as his.
On 15 December, Mr Vickers wrote to Mr Evans, stating that he had concluded that he was guilty of gross misconduct, and that he was summarily dismissed. The dismissal letter set out the reasoning, based on the CCTV footage, behind Mr Vickers' decision that the accident was not genuine. Mr Evans’ appeal against his dismissal was rejected, and he claimed unfair dismissal, as well as wrongful dismissal on the basis that he had not received his contractual notice. In early 2011, the company made five employees redundant.
The tribunal rejected Mr Evans’ allegations that the real reason for his dismissal was his poor relationship with Mr Jones, or redundancy. The tribunal accepted Mr Kruger’s evidence that the company’s need to make redundancies was not identified until January 2011, and noted that Mr Jones was not a witness to the incident, and had no part in the investigation, disciplinary or appeal procedures.
The tribunal considered that the CCTV footage was of “exceptional clarity" and found that Mr Vickers’ interpretation of the footage was reasonable. Mr Evans’ behaviour before the fall was suspicious, and the fall was not the result of a trip or a slip. The tribunal also found that the company had carried out a reasonable investigation: “the procedure followed by this small employer was rigorously thorough and admirably fair”. The dismissal was within the range of reasonable responses, and was fair.
The tribunal also rejected the wrongful dismissal claim, finding, on the balance of probabilities, that Mr Evans deliberately staged the accident and therefore summary dismissal was an appropriate sanction. There being “no other credible explanation” for the incident, the tribunal was “driven to the distasteful conclusion that this is what occurred”.
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Reinstatement for installation engineer who caused damage after inadequate training
Mehanger v Map Group UK Ltd ET/1308566/10
Date added: 3 August 2011
unfair dismissal | remedies | reinstatement
This is a rare instance, along with the decision in Barlow v Ranc Care Homes Ltd ET/1101527/10, of an employment tribunal ordering an employer to reinstate an unfairly dismissed employee.
Practical tips
Key factors that led to the tribunal deciding to make an order for reinstatement in this case were that: the employee wanted reinstatement; the reinstatement was "practicable"; and the employee had in no way contributed to his dismissal.
Here, the employee was blameless because the problem had been caused by inadequate training and unclear instructions, not by any misconduct or poor performance from the employee.
Employers must ensure that, before dismissing an employee for a mistake, they give the employee suitable training in the first place. |
Mr Mehanger was an installation engineer for Map Group UK Ltd, which installs equipment on premises for the likes of Virgin Media.
The company gave Mr Mehanger no training on what to do if there were problems with installation on a site, including no guidance on what action to take if access could not be gained to dry risers in flats (where the wiring is often located) because they were locked. Engineers were said to be "generally aware" that they would have to refer to the caretaker at the site or telephone their manager.
In April 2010, the company's main client, Virgin Media, informed it of a complaint that it had received about Mr Mehanger causing damage to a dry riser, at a cost of £200 to repair. The owners of the flats had complained to the police, but no action had been taken.
In accordance with the contract with the client, the company's management investigated the matter. Mr Mehanger was shown CCTV footage of him damaging the dry riser to access it and he admitted that he had done this. His explanation was that the concierge had told him to do this, using the words: "Why don't you just break into it; the rest of you fuckers do".
In the record of the disciplinary interview about the incident, there appears to have been confusion as to whether or not Mr Mehanger accepted that the concierge might have been being sarcastic when he said this. What is clear is that Mr Mehanger maintained throughout the disciplinary process that he had reported the problem to his manager after the job, who took no action.
Another engineer and the customer, who were present during the incident, both gave evidence that the concierge had given Mr Mehanger permission to break into the dry riser. The concierge was also interviewed as part of the investigation, but his testimony contained no evidence about his "sarcastic" instruction to break in.
Following a disciplinary hearing, Mr Mehanger was dismissed for gross misconduct, on the basis that he knew that the correct procedure was to call his manager. No account was taken of the testimony of the second engineer or the customer, or of Mr Mehanger's argument that the concierge had told him to break in. Mr Mehanger's appeal against dismissal, which was heard by a subordinate of the dismissing manager, was unsuccessful. Mr Mehanger claimed unfair dismissal.
The employment tribunal concluded that the dismissal was unfair because the disciplining manager failed to take account of key evidence from the second engineer and the customer. The tribunal also noted the inadequacy of the concierge's evidence and the failure to interview Mr Mehanger's manager, who had apparently been informed about the incident, but had not considered it worth reporting or taking disciplinary action over. The tribunal's overall impression was that the company's management knew that breaking into areas such as dry risers occurred, but turned a blind eye to the practice. The tribunal was also unimpressed with the decision to have a junior manager hold the appeal proceedings.
Mr Mehanger asked to be reinstated. The company resisted such an order on the basis that Mr Mehanger had caused or contributed to some extent to his own dismissal by going ahead with the break-in.
The tribunal was not satisfied that any blame could be placed on Mr Mehanger. It was not sure that he understood that the concierge was being sarcastic when he ordered him to break into the dry riser, and this was an issue that was never resolved in the disciplinary interview.
The tribunal ordered Mr Mehanger's reinstatement from 6 December 2010, there being no factors to suggest that this remedy was impractical.
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Tribunal orders reinstatement of unfairly dismissed care worker
Barlow v Ranc Care Homes Ltd ET/1101527/10
Date added: 3 August 2011
unfair dismissal | remedies | reinstatement
This is a rare instance, along with the decision in Mehanger v Map Group UK Ltd ET/1308566/10, of an employment tribunal ordering an employer to reinstate an unfairly dismissed employee.
Practical tips
It is rare for employment tribunals to make orders for reinstatement, where the employer must treat the claimant in all respects as if he or she had not been dismissed, or re-engagement, where the claimant must be engaged by the employer (or a successor or associated employer) in employment comparable to that from which he or she was dismissed or other suitable employment.
Tribunals will normally be reluctant to order reinstatement or re-engagement where the employer argues that the employment relationship has been irreparably damaged, but the tribunal in this case was swayed by the claimant's difficulty in getting further care work after her dismissal. It saw reinstatement as a suitable way to restore the claimant's besmirched name. |
Ms Barlow was a healthcare assistant for Ranc Care Homes Ltd (her main employer) from March 2005. She worked on a second job for an agency and maintained that her main employer had known about this from the start of her employment with it.
Ms Barlow was suspended by her main employer in December 2009 because of allegations that she had been mistreating residents. An investigatory meeting took place in January 2010, followed by a disciplinary hearing in February 2010.
Ms Barlow continued her agency job during her suspension, which lasted around four months. When her main employer found out, she was invited to a further disciplinary hearing in April 2010 to answer the charge that she had been working a second job, contrary to rules in the employer's staff handbook.
Ms Barlow maintained that she told her interviewer in her original job interview that she had a second job and that she was never shown the section in the staff handbook that covered "other employment". In any event, the relevant passage in the handbook merely required the employee to "notify" Ranc Care Homes Ltd if taking, or considering taking, up additional work. It did not prohibit employees from having a second job.
The conclusion of the disciplinary panel was that Ms Barlow should be dismissed for the sole act of misconduct of failing to notify the main employer of her other job. The disciplinary process relating to the allegations of mistreatment of residents was never concluded.
Ms Barlow brought various claims, including a claim of unfair dismissal that was upheld by the employment tribunal. The tribunal concluded that the dismissal was unfair because of:
- the main employer's fundamental lack of investigation into whether or not Ms Barlow had ever had the opportunity to see the relevant section of the staff handbook;
- evidence that the disciplining officer was not familiar with the relevant passage in the staff handbook, as suggested by the officer's belief that it actually prohibited staff from taking second jobs (when in fact there was only a notification requirement);
- procedural defects in the dismissal, particularly the long period of Ms Barlow's suspension; and
- the harshness of summary dismissal for a simple failure to notify the main employer of a second job ("a sledgehammer to crack a nut", as the tribunal described the employer's response).
The tribunal awarded Ms Barlow over £6,000 in compensation. The tribunal went on to consider whether or not an order for reinstatement was appropriate in this case. Ms Barlow argued that there was no evidence that reinstatement was impractical. She had been having difficulty getting a job, which was exacerbated by the main employer's failure to provide her with a reference. The employer argued that the tribunal should bear in mind the nature of the conduct that led to Ms Barlow's dismissal and that she had failed to mitigate her loss by looking for another job.
The tribunal took the unusual step of ordering reinstatement. It expressed surprise that the main employer had made no reference to the "live" allegations from Ms Barlow's original suspension in December 2009, leading it to believe that the mistreatment allegations had "absolutely no foundation". The tribunal saw the only way to correct the damage done to Ms Barlow's career and credibility because of the "unsubstantiated allegations hanging over her without a resolution" to be her reinstatement. The employer had shown no reason why reinstatement was impractical and there was no blameworthy or culpable conduct from Ms Barlow.
The tribunal ordered that Ms Barlow be reinstated from 1 January 2011 and paid her wages from the date of her dismissal, with her pay to continue on her return to work at the rate that she had been getting when she was dismissed, together with any pay increase that had been awarded between the date of her dismissal and her reinstatement.
Additional resources
- Employment tribunals: are unfairly dismissed claimants often reinstated? The case of City of Edinburgh Council v Dickson made the headlines in 2010 because of the claimant's lurid conduct (watching pornography in his employer's public computer suite) and his unusual defence (that diabetes had brought on an episode during which he was not responsible for his actions). But the case is interesting for another reason too: the employment tribunal made an order, opposed by the employer, that the claimant should be reinstated.
- City of Edinburgh Council v Dickson EATS/0038/09 Read the full details of this decision, in which the Employment Appeal Tribunal refused to interfere with the tribunal's reinstatement order. The tribunal had accepted that the employee had not caused or contributed to his dismissal, and on the facts reinstatement was practicable.
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