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XpertHR provides summaries of recent employment tribunal
rulings.
Redundancy after announcing pregnancy two weeks into new job not discriminatory
Intern paid "expenses only" entitled to be paid national minimum wage
Employer bound by six-month notice period after employee signed variation to contract
Age discrimination against teenager dismissed at 18 to avoid national minimum wage increase
Teacher unfairly dismissed after accessing dating website during lesson
Age discrimination: local authority employee's redundancy timed to avoid pension costs
Employee fairly dismissed for single swear word directed at manager
Age discrimination: hard-to-manage contract worker not let go because of his youth
Teacher accused of inappropriate relationship with pupil was unfairly dismissed
Employee who commented on Facebook that she worked "in a nursery" was unfairly dismissed
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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Redundancy after announcing pregnancy two weeks into new job not discriminatory
Stevens v Charles Peters Ltd ET/1310672/2010
Date added: 29 September 2011
sex discrimination | unfair dismissal | pregnancy
An unfortunate situation arose for this small employer when a recruitment consultant was made redundant after she had informed it, just two weeks into her new job, that she was pregnant. She claimed sex discrimination and unfair dismissal after seeing an advert shortly after her redundancy stating that the company was seeking recruitment consultants.
Practical tips
It is automatically unfair and discriminatory for an employer to select a woman for redundancy for pregnancy, childbirth or maternity related reasons.
This does not mean that an employer can never make pregnant employees redundant. Provided that there is a genuine redundancy situation and that the employer has carried out a fair procedure, the employer is entitled to dismiss employees even if they are pregnant. |
Mr Hales set up a small recruitment business in 2009, specialising in recruiting consultants for positions in other recruitment consultancies. After two productive months in November and December 2009, Mr Hales recruited Ms Stevens, who had 13 years' experience in marketing, but little experience in the recruitment market. Despite this, Mr Hales recruited her because he thought that she might have good contacts. When he offered Ms Stevens the job, Mr Hales was aware that she had a nine-month-old daughter.
Ms Stevens started her new part-time employment on 6 April 2010. On or around 21 April 2010, Ms Stevens discovered that she was pregnant and immediately informed Mr Hales. She later gave evidence to the tribunal that she felt guilty about the timing of the pregnancy and suggested to Mr Hales that he did not have to keep her job open for her, given the low chance of her returning to work while caring for two young children.
By the middle of 2010, the business was struggling, and Mr Hales informed Ms Stevens that her position would have to be made redundant. She was dismissed on 3 June 2010 and, as the tribunal later said, there appeared to be no animosity between the parties. However, Ms Stevens saw a series of adverts placed on Mr Hales' LinkedIn account from 9 June 2010 stating that he was "looking for an experienced recruitment consultants [sic], ideally with an IT/sales background to work for us here at Charles Peters". Having seen these adverts, Ms Stevens felt that she had been dismissed because of her pregnancy, and claimed unfair dismissal and sex discrimination.
The employment tribunal believed that Ms Stevens had established facts from which it could conclude, in the absence of an adequate explanation from the company, that the pregnancy was the reason for her dismissal. On the face of it, given that redundancy was the stated reason for dismissal, it was curious for the company to be seeking to recruit to the business immediately after making someone redundant.
The burden of proof shifted to the company to show that Ms Stevens' dismissal was in no sense whatsoever because of her pregnancy. Mr Hales' explanation was that he had placed the adverts to recruit on behalf of several clients and this was a way to generate interest in the posts. Mr Hales argued that any successful candidate would not be working for him, but would be placed with his clients.
The tribunal accepted this explanation. It noted that it is not uncommon in the recruitment industry for one party to place an advert in its own name, when in fact it is seeking to recruit for a third party. The reason for not stating the name of the client is that to do so would alert competitors that a particular company is seeking to recruit, which risks giving the competitor the opportunity to secure the business. The tribunal also noted Mr Hales' argument that, even if he could not place someone with these clients, he was building up a bank of potential candidates for the future.
In addition, the tribunal highlighted the fact that Mr Hales knew, when he took Ms Stevens on, that she had a nine-month-old child and that, once she had become pregnant, she had indicated that she would not be returning to work after the birth of the second child. The tribunal was also aware that, in recruiting Ms Stevens in the first place, Mr Hales had taken "something of a gamble" in recruiting her, given the financial position of the company. The gamble had not paid off.
The tribunal concluded that Mr Hales had been advertising for clients and not for his own business and Ms Stevens' position was genuinely redundant.
Additional resources
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Intern paid "expenses only" entitled to be paid national minimum wage
Vetta v London Dreams Motion Pictures Ltd ET/2703377/09
Date added: 29 September 2011
national minimum wage | unlawful deductions from wages | holiday pay
A company in a highly competitive creative industry that took on a worker seeking to get her foot in the door and paid her "expenses only" was found in this case to have breached national minimum wage and working time legislation.
Practical tips
Anyone who is a "worker" for an organisation must be paid at least the national minimum wage.
Where an intern is obliged to perform work personally, that definition is likely to be satisfied, and he or she will be entitled to the national minimum wage. |
Ms Vetta replied to an advert for a position as an art director's assistant on a film, starting straight away and working for about four weeks. The advert said that the company would pay "expenses only", but went on to say that it would be "a great opportunity to get experience on a feature with a strong budget".
Ms Vetta was interviewed by the production designer, Ms Wyatt, who worked for the company, but not under an employment contract. She chose three assistants to work on the film, including Ms Vetta, who was to work full time. The employment tribunal heard evidence of an email exchange in which Mr Jhaj, a company director, praised Ms Wyatt for having assembled her team so quickly and "dived right into the action".
Ms Vetta, who did not sign a contract of any sort, kept a record of the hours that she worked and the expenses that she incurred. When she submitted her first expenses claim, she received a cheque reimbursing her for these signed by Mr Jhaj on behalf of the company.
It appears that some workers within the team became unhappy at not being paid on time or reimbursed for expense claims that they had submitted. When the Broadcasting, Entertainment, Cinematograph and Theatre Union (BECTU) became involved, Ms Vetta realised that it is illegal for an employer to require someone to work for nothing and to be paid expenses only.
Ms Vetta brought an employment tribunal claim seeking unpaid wages and payment for holiday accrued but not taken. The company argued that she was not an employee or worker of the company and that she had an arrangement not with it, but with Ms Wyatt, and she should seek the monies directly from the production designer.
The tribunal had no doubt that Ms Vetta was a "worker" within the definition of both national minimum wage and working time legislation. Ms Wyatt was working for the company under a contract for services when she recruited Ms Vetta and was clearly assembling a team for the company. The email exchange between Ms Wyatt and Mr Jhaj was evidence that individuals were being taken on for the company and were therefore workers. The tribunal was unconvinced by the company's argument that there was a clause in Ms Wyatt's contract that she should not do anything without its consent.
With the tribunal having decided that Ms Vetta was a worker, the company did not dispute the amount claimed. The tribunal ordered it to pay a total of £2,395 for unlawful deductions from wages and holiday pay, the amounts that the company should have properly paid Ms Vetta.
Additional resources
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Employer bound by six-month notice period after employee signed variation to contract
Moutrie v Public Sector Consultants Ltd ET/2800049/2011
Date added: 22 September 2011
breach of contract | variation of contract | notice period
The employer in this case wanted to make a blanket variation to its workforce's contractual notice periods. However, the employer got itself into the difficult position of varying the claimant's notice period, while the rest of the workforce refused the change.
Practical tips
The employer's approach of simply writing to the employee with a request to sign an agreement to a variation of contract works if the employer is seeking an individual variation.
However, for variations of contract for the whole workforce, employers need to consult collectively, not least to ascertain whether enough employees will agree to the variation in the first place. |
Mr Moutrie worked for Public Sector Consultants Ltd from June 2004 until his redundancy in December 2010. In May 2006, the company wanted to take the unusual step of changing its employees' notice periods (whether it was the company or the employee seeking the termination) from six weeks to six months.
The company sent out individual letters to around 30 staff indicating that the proposed change would take place from 1 July 2006, if the recipient consented to the change. Mr Moutrie's letter said:
"Please be aware that the proposed change will not be implemented without your express agreement and you may request a meeting so that we [can] answer any questions or concerns that you may have...Alternatively you may wish to simply accept the proposed change without the need for a meeting and if this is the case, please could you signify your acceptance to the change detailed above by signing [the] attachment to this letter and returning it to HR."
The attachment to this letter was a consent form for Mr Moutrie to declare that:
"I accept the proposed change to 12.1 of the terms and conditions of employment and await a revised contract incorporating this change."
In the event, only two out of 30 members of staff signed the consent form, one of whom was Mr Moutrie. It was common ground between the parties that no revised contract of employment was ever issued. Although the company argued that Mr Moutrie had returned the letter but not the consent form and it had spoken to him about "revoking" the new notice period, the employment tribunal was convinced that Mr Moutrie had returned the consent form and nothing had been done to undo the agreed changes. The tribunal accepted that he had simply sent back the consent form and the revised contractual terms had been implemented.
In December 2010, Mr Moutrie was made redundant with six weeks' notice. He raised a grievance about the length of his notice. He argued that he was entitled to six months' notice under the changes to his contract of employment that took effect from 1 July 2006.
The company appeared to treat Mr Moutrie's grievance as an appeal against the decision to make him redundant, but eventually it agreed to hold a grievance meeting. Mr Moutrie's grievance was not upheld and the company communicated this in a letter directly to Mr Moutrie's representative. No opportunity to appeal against this decision was offered, and he claimed breach of contract.
The tribunal held that the company had breached Mr Moutrie's contract by giving him six weeks' notice, rather than six months' notice, on his redundancy in December 2010.
There was nothing in the company's May 2006 letter to Mr Moutrie to suggest that the proposal to increase his notice period would be implemented only if a certain number of employees agreed to it. The letter was couched in terms of an individual consultation about Mr Moutrie's terms and conditions, and not a proposal to the wider workforce that was still under consideration. All that the company required was the return of the consent form for the agreed variation to be implemented from 1 July 2006.
The tribunal did not accept the company's argument that it had spoken to Mr Moutrie and the other employee who had returned the signed consent form to backtrack on the agreed variation to their contracts. The company had been unable to produce any direct evidence that these conversations had taken place.
The tribunal awarded Mr Moutrie £12,634 for the 20 weeks' lost pay that he would have received had he been given six months' notice. It awarded him an additional £1,263, which was a 10% uplift for the company's failure to offer him an appeal in relation to his grievance. This was a breach of the Acas code of practice on disciplinary and grievance procedures (on the Acas website).
Additional resources
- Liveflo: varying terms and conditions workflow XpertHR Liveflo, the revolutionary online tool providing interactive flowcharts and guidance on a range of employment law subjects, includes a workflow on varying terms and conditions. The workflow guides employers through the process for varying employees' terms and conditions in accordance with good practice and the obligation to consult on the proposed changes. The workflow provides step-by-step guidance on the procedures to follow, along with relevant documents and additional guidance at each step in the process.
- Procedure on varying terms and conditions Use this model procedure to set out the steps that the organisation will take when it seeks to vary terms and conditions of employment.
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Age discrimination against teenager dismissed at 18 to avoid national minimum wage increase
Greer v Coulter (t/a Alphreso Cafe) NIIT/2750/10
Date added: 22 September 2011
age discrimination | young worker | national minimum wage
In this case, the industrial tribunal in Northern Ireland described a small employer's decision to dismiss a young worker to avoid having to increase her pay from £4.00 to the national minimum wage rate of £4.92, when she reached the age of 18, as "callous".
Practical tips
Employers must increase the wages of workers who have a relevant birthday to reflect the age bands for the national minimum wage.
It is blatant unfair dismissal and age discrimination to dismiss a worker for the purpose of avoiding having to pay an increased rate of the national minimum wage where the worker moves into a higher age band. |
Ms Greer, who was born on 6 October 1992, was employed as a dishwasher in a cafe from 4 October 2008 until her dismissal on 11 October 2010. She worked eight hours per week and was paid £4.00 per hour.
On 5 October 2010, Ms Greer informed her employer, Ms Coulter, that her 18th birthday was the next day and she was entitled to be paid the minimum wage for a person aged 18 to 20. This would amount to £4.92 per hour. Ms Greer was away for a few days and, on Sunday 11 October 2010, she telephoned Ms Coulter to find out her shift hours for the following week. Ms Coulter said that she had no further shifts for Ms Greer as she had been "cheeky" on 5 October.
Ms Greer wrote to Ms Coulter twice asking if she had been dismissed. She received no reply to her letters and assumed that she had been dismissed. Ms Greer felt that she had been dismissed because of her request to be paid the minimum wage. She attempted to raise a grievance and to appeal against her dismissal, but received no reply. The shop closed at the end of the year, about 10 weeks after Ms Greer's dismissal, although Ms Coulter's other shop remained open. Ms Greer brought claims for unfair dismissal and age discrimination.
The industrial tribunal found that Ms Greer was automatically unfairly dismissed for asserting her statutory right to claim the national minimum wage. It was clear to the tribunal that Ms Coulter did not wish to pay the increased minimum wage to Ms Greer and therefore dismissed her without further communication.
The tribunal also found that Ms Coulter failed to follow the statutory dismissal procedure, which is still in force in Northern Ireland under the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919). The tribunal increased the unfair dismissal compensation by the permitted maximum of 50% to reflect Ms Coulter's failure to follow the statutory procedure.
In addition, the industrial tribunal found that Ms Coulter discriminated against Ms Greer on the ground of her age because, as soon as she notified Ms Coulter that she was about to become 18 years of age, she dismissed her rather than have to pay the increased wage to her. The tribunal described this as "a most upsetting turn of events for a young person beginning her working life". It awarded Ms Greer £500 for injury to her feelings.
The total award for unfair dismissal and age discrimination was £1,329.56.
Additional resources
- Get more information on the national minimum wage with the XpertHR FAQs section:
- National minimum wage rates The XpertHR quick reference section provides the current minimum wage payable to adult workers, as well as the minimum level for young workers.
- Letter providing national minimum wage statement Use this model letter to inform workers of the current rate of the national minimum wage. It can be sent to individual workers or placed on company noticeboards.
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Teacher unfairly dismissed after accessing dating website during lesson
Bates v Cumbria County Council and another ET/2510893/09
Date added: 15 September 2011
unfair dismissal | internet use at work | "inappropriate" websites
The employer in this case unfairly allowed personal views of what is an "inappropriate" website for staff to look at while at work to influence its decision to dismiss an employee.
Practical tips
It is impractical for most employers in this day and age to ban entirely personal internet use at work. Most employers therefore allow limited personal internet use, as long as usage is not excessive and the websites visited are not "inappropriate".
Managers should take an objective view of what is "inappropriate" and not allow personal "moral" values to colour their judgment.
Employers that load as many accusations as possible into disciplinary charges risk bias, even if those accusations are later dropped or not upheld. Disciplinary action should be limited to issues where there is evidence of wrongdoing. |
Mr Bates was head of the religious studies department at Dowdales School from 1999. He had an excellent record, but had had several disputes with the head teacher, Ms Moffatt, and another teacher, Ms O'Connor, in his role as a trade union representative, which he assumed from 2008. There were also disputes over Ms Moffatt's failure to inform him that a new recruit would be teaching religious studies and her request for an occupational health report on him without his consent after he had had a period of sick leave for stress.
Shortly after he returned from a period of sick leave, Ms O'Connor made a complaint that Mr Bates was using his school laptop inappropriately during lessons. She said that Mr Bates had become a member of the online dating service, Guardian Soulmates, and that he had been on the website during lesson time. Ms O'Connor told Ms Moffatt that other staff did use their computers during lessons, but that Mr Bates did so more than others.
Ms Moffatt thought that it was inappropriate for a teacher to be a member of a dating website and she noted that anyone aged 18 or over could access the site and see Mr Bates' profile. She believed that Mr Bates' membership of the dating website could bring the school into disrepute. She asked the school's IT technician, Mr Ryder, to check Mr Bates' computer use. The technician found that Mr Bates had accessed the dating website during a class. Mr Bates admitted that he had accessed personal emails and briefly the dating website while pupils had been watching a video. Mr Bates was suspended for a breach of the school's policy on computer use, pending an investigation.
The deputy headteacher, Mr Sinton, investigated. He interviewed Ms O'Connor, who raised doubts about Mr Bates' planning of work, professional behaviour and relationships with colleagues and the appropriateness of some of his actions during a school trip. Mr Bates explained that he had fallen behind with marking, but that this had been caused by his sickness absence and his heavy workload. He said that he generally got on well with other staff except Ms O'Connor, and asked Mr Sinton to look at her accusations in light of the personal animosity between them.
The HR manager, Ms Rees, reviewed the record of the investigation and advised that many of the accusations about Mr Bates' behaviour that had been made during the investigation should be removed because there was no evidence to back them up. Despite this recommendation, the disciplinary hearing went ahead with all the charges.
At the disciplinary hearing, Mr Sinton explained to the four governors who made up the disciplinary panel that Mr Bates had accessed the dating website for a maximum of 15 seconds, but that "reading, writing, scrolling could well have been going on". He said that the rules on internet access at work had been relaxed after a campaign by teachers, who saw websites such as YouTube as a good teaching tool. Mr Sinton spent some time explaining Mr Bates' activities on his computer and his personal profile on the Guardian Soulmates website. Ms Moffatt was keen to link Mr Bates' time spent on his computer to his "neglect of duty" in his marking and link his public profile on the website to potential damage to the school's reputation if it was "made into a major issue by the newspapers".
The disciplinary panel found that the claims of inappropriate use of the internet and lack of planning were made out. Mr Siddal, the panel member who summed up the panel's findings at the end of the hearing, later told the tribunal that the content of the dating site painted a "seedy picture of someone sending sexual messages" and "the potential for damage was enormous". The other complaints were either not upheld or withdrawn or no finding was made about them.
On appeal, Mr Bates was not given information that he requested on the sanctions given to other staff who had breached the school's policy on computer use. The appeal was unsuccessful. Mr Bland, a member of the appeal panel, later told the tribunal that the panel had no objection in principle to a teacher using a dating site but said that, if use of the website cast the school in a bad light, this was unacceptable.
In his claim for unfair dismissal, Mr Bates argued that teachers regularly accessed their home email on their school computer while at work. He said that he frequently worked at home in the evenings and emails would pass between his home and work email accounts. He had never been criticised for accessing his personal emails at work and saw nothing wrong with doing this while his pupils were watching a video. He felt that he had been treated differently to other members of staff, giving the example of one who had been spoken to informally about accessing Facebook while at work, and another who had been given a final warning for looking at an "inappropriate" website while at school. He highlighted to the tribunal the background to his dismissal, with Ms Moffatt and Ms O'Connor using the website issue as "a way to get rid of him".
The tribunal agreed with Mr Bates that he had been unfairly dismissed. It was concerned that a series of allegations that had no basis in fact had been included in the disciplinary charges and that, even though they did not form part of the reasons given for the dismissal, reference had been made to them in the disciplinary hearing. This was despite the HR department having advised that they be dropped. The tribunal found that "Ms Moffatt was seeking to throw as much mud at [Mr Bates] as she could in the hope that some of this would stick".
The tribunal was also concerned about the way in which the disciplinary panel had been influenced by Ms Moffatt's views of dating websites, which had been couched in "very emotive language". Ms Moffatt had very strong personal views about the use of dating websites and had allowed these to colour her view of Mr Bates' actions. Mr Sinton's investigation had in turn been biased by Ms Moffatt's views. The real reason for Mr Bates' dismissal was Ms Moffatt's wish to get rid of him, as well as the individual views of several members of staff that dating websites are "inappropriate" and "seedy".
The tribunal went on to rule that Mr Bates' compensation should be reduced by 15%, given that he was not entirely blameless in accessing the dating website while in the classroom.
Additional resources
- Other employment tribunal cases involving email and internet use include:
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Age discrimination: local authority employee's redundancy timed to avoid pension costs
Walsh v Tewkesbury Borough Council ET/1404614/09
Date added: 14 September 2011
age discrimination | unfair dismissal | redundancy | local government pension
In this decision, the employment tribunal was critical of a local authority that failed to keep an employee at risk of redundancy in employment for six more months during a transitional period. The decision had been taken to avoid a pension payout and constituted direct age discrimination and unfair dismissal.
Practical tips
Although older employees can be made redundant when their role genuinely no longer exists, the timing of their redundancy should not be engineered to avoid their receiving an age-related payment such as a pension (for example, by making them redundant a few months earlier than necessary).
Employers must still go through a proper redundancy procedure, for example consulting fully with employees at risk of redundancy and finding alternative work for them if it is available. |
Mr Walsh was born on 21 December 1959 and worked as a leisure centre manager for Tewkesbury Borough Council from June 1988. He was made redundant on 20 September 2009, when he was three months short of his 50th birthday. At that time, the Local Government Pension Scheme permitted early retirement at 50, with the employer's agreement (although the age limit has since been raised to 55).
A programme of cuts across local government led to the decision in October 2008 to transfer leisure centres out of council control to the schools where they were located. If a leisure centre did not transfer to school control, it would be closed and redundancies made. By November 2008, Mr Walsh was at risk of redundancy and was told that his job was unlikely to continue beyond 31 March 2010.
In a separate development, a management restructure meant that there were to be substantial redundancies among the council's management, making Mr Walsh at risk of redundancy from September 2009. The employer sought volunteers for redundancy from February 2009. Mr Walsh applied for voluntary redundancy, considering that this would look better than compulsory redundancy on his CV. He felt that, if he did not volunteer, he would be selected for redundancy anyway in September 2009.
In March 2009, the council undertook a series of consultations with employees at risk of redundancy, including discussions about possible alternatives to redundancy. The possibility of Mr Walsh taking a leading role in a newly funded project, Healthy Towns, was discussed, although no firm offer was made. The council also discussed whether or not it was necessary to keep Mr Walsh on until 31 March 2010 in order for him to finish his projects off under transitional arrangements. The pension implications of keeping Mr Walsh on were also discussed, with reference in the notes of consultation meetings to Mr Walsh possibly being "just in the window to 50". It was concluded that Mr Walsh's "pension strain costs" (the cost to the council of making someone redundant at or after the age of 50, but before the normal retirement age) were £90,356.
After the consultation concluded in May 2009, a detailed report was produced on the financial implications of the restructure. However, the report failed to mention the leisure centres and no proposal in respect of them was put forward. The restructuring was implemented and the decision was taken to make Mr Walsh voluntarily redundant from 20 September 2009.
Mr Walsh raised a grievance stating that he should have been kept on until 31 March 2010, and that he did not consent to voluntary redundancy before this date. He stressed that the loss of leisure centre managers before this date could cause serious problems for the council. Mr Walsh's redundancy took place as expected on 20 September 2009. His grievance was rejected and an appeal against the grievance was also unsuccessful. He argued in the appeal that his post was not extended because of his age and his reaching the qualifying age for a pension if his employment was extended to 31 March 2010.
Mr Walsh brought claims of direct age discrimination (which can be justified, unlike direct discrimination on the grounds of other protected characteristics) and unfair dismissal. Mr Walsh argued that:
- the council was motivated in the timing of his redundancy by his early pension entitlement, specifically in deciding not to extend his employment beyond 20 September 2009;
- the council decided not to look for alternative employment for him so that there was no possibility that he would be eligible for enhanced pension benefit;
- the reason for dismissal was his age, not redundancy; and
- there were procedural defects in the redundancy process.
The council's managers originally gave evidence that their actions towards Mr Walsh were not motivated by cost considerations. However, the council's pleadings were later changed to include a justification defence. The council argued that the decision not to delay Mr Walsh's redundancy was a proportionate means of achieving a legitimate aim.
The employment tribunal noted that the council had an agreed plan to end Mr Walsh's employment in March 2010, when he would have been dismissed and received his redundancy payment and pension. This plan was scrapped. Mr Walsh was put in the pool for possible redundancy in September 2009, earlier than had been envisaged. On that basis, Mr Walsh would receive a redundancy payment, but not an early pension. The question for the council then became whether or not there was a case for keeping Mr Walsh on until March 2010. The tribunal found that, once the pension implications of keeping Mr Walsh in employment became clear, there was no further evaluation of the business case for extending his employment, despite the fact that the period of transition would be difficult and it was easy to see a role for him in that transition.
The tribunal found that the decision was made because of Mr Walsh's age. His 50th birthday fell between two possible dates of dismissal. Had he been younger, his pension would not have been an issue in the timing of his redundancy. Had he been older, there would not have been a stark difference in the cost to the council. The tribunal concluded that Mr Walsh had proven facts from which the tribunal could, in the absence of an adequate explanation, conclude that there was discrimination on the ground of age.
On the burden of proof passing to the council, it had to show that it acted "in no sense whatsoever" on the ground of age. The tribunal could not accept the managers' original claim that pension costs made no difference to their decision. It was clear to the tribunal that the management restructure was, in large part, driven by the need to reduce costs. The absence of any written evaluation about the merits of redundancy in March 2010, rather than September 2009, convinced the tribunal that the pension strain costs were a significant factor in the decision not to consider an extension to Mr Walsh's post. The decision was tainted by age discrimination. The council's decision was "outside the usual run of difficult decisions", even with the harsh decisions that the council was making at that time.
The tribunal also went on to consider the issue of justification. The tribunal found it difficult to see that the question was resolved on anything other than a cost basis. There was nothing to show that the council had undertaken a balanced analysis of the costs and benefits of retaining Mr Walsh. The tribunal expected an employer such as a local authority to apply a strict standard when considering the discriminatory effect of a policy or practice by reference to cost considerations. If the potential losses of £90,356 were significant to the council, the losses to Mr Walsh were even more significant. He lost an annual pension of £11,456 that would have been payable immediately on his reaching 50 and a lump sum of £31,095. The council had not weighed the costs to it against the disadvantage to Mr Walsh and was unable to justify the discrimination found by the tribunal.
The tribunal concluded that Mr Walsh's redundancy was unfair because a proper procedure was not followed once it became clear to the council that he was withdrawing his offer of voluntary redundancy over the timing and no steps were taken to find him alternative work, at a time when work was available. In addition, the timing of Mr Walsh's dismissal was dictated by his age, not when it was necessary to make him redundant.
Additional resources
- Mayor and Burgesses of the London Borough of Tower Hamlets v Wooster EAT/0441/08 In this case, the Employment Appeal Tribunal (EAT) held that an employer committed direct age discrimination against an employee when it made him redundant at the age of 49 in order to avoid paying an early retirement pension that he would be entitled to if he left employment when he was aged 50 or over.
- Woodcock v Cumbria Primary Care Trust [2011] IRLR 119 EAT In this case, the EAT questioned the current approach adopted by tribunals that an employer cannot justify age discrimination on the ground of cost alone, in the context of making an employee redundant at a particular age to avoid him getting a redundancy payment windfall.
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Employee fairly dismissed for single swear word directed at manager
Doman v Royal Mail Group Ltd ET/2803550/10
Date added: 8 September 2011
unfair dismissal | misconduct | swearing
The employer in this case was entitled to take a stern view of an isolated incident in which an employee lost her cool and swore at a team leader.
Practical tips
Employers are not expected to have to tolerate an employee swearing at a manager or a colleague, even if it is an isolated occurence. However, employers might take a more lenient approach if an employee uses bad language that is not directed at a particular person.
Employers should bear in mind that an uncharacteristic outburst by a normally well-behaved employee might have other factors behind it, for example stress brought on by overwork or bullying of that person. |
Mrs Doman had worked for Royal Mail since 2001. She was a customer service adviser. Her career there was "largely uneventful" and "enjoyable" until 3 February 2009, when she claimed that a dispute over her inability to get to work because of heavy snow changed her superiors' attitudes towards her and "ultimately led to her dismissal". Mrs Doman said that a dispute over how Mr Wynne, her manager, recorded the absence adversely affected her relationships in the workplace. She claimed that she was put on the company's capability procedure because Mr Wynne had "taken against her" after the dispute about her absence.
On 27 April 2010, Mr Wynne was not present and Mrs Doman was reporting to an acting team leader, Ms Brammer. While Mrs Doman was making a phone call, Ms Brammer interrupted her on several occasions because she genuinely believed that Mrs Doman was having difficulties. Mrs Doman became upset by the interruptions and broke down in tears. On completion of the telephone conversation, there was a "frank exchange of views" that culminated in Mrs Doman telling Ms Brammer to "fuck off".
The company suspended Mrs Doman and commenced a disciplinary investigation. All the relevant witnesses to the incident were interviewed and the witness statements were presented to Mrs Doman before her disciplinary hearing, at which the charge was that she had used foul and abusive language towards Ms Brammer. At the hearing, Mrs Doman did not deny that she had sworn at the manager. She confirmed that she regarded her swearing as "out of order", but could not say that she regretted it. The company decided to dismiss her, an outcome that was confirmed on appeal. Mrs Doman claimed unfair dismissal.
The employment tribunal had no doubt that the bad language was directed at Ms Brammer and not "flung out into the ether". It noted that at least one colleague who heard the outburst was "shocked" at hearing this language used in the workplace. The evidence before the tribunal was that bad language was not tolerated in this workplace.
Mrs Doman argued that her swearing was out of character and came after a prolonged period of stress brought on by her treatment since the dispute that started on 3 February 2009. However, the tribunal noted that, although Mrs Doman's actions were probably out of character, she had not told anyone at the company that she was feeling under pressure. She had not at any time raised a formal grievance or used stress to explain her actions.
The tribunal did have some criticisms about a lack of communication during Mrs Doman's suspension and the appeal officer bringing his own "emotive" views on Mrs Doman into his decision. However, the tribunal did not believe that these were sufficient to make the dismissal unfair. It was not disputed that Mrs Doman had told an acting manager to "fuck off".
The tribunal concluded that the company had, by a "very slim margin", shown that the dismissal was within the range of reasonable responses. The tribunal concluded that, even if it had come to a decision that the company was acting outside the range of reasonable responses, it would have drastically reduced any compensation awarded to Mrs Doman. She had contributed to her own dismissal "by a factor in excess of 90%".
Additional resources
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Age discrimination: hard-to-manage contract worker not let go because of his youth
Polat v Governing Body of the Skinners' Company's School for Girls and others ET/3202237/09 & ET/3202243/09
Date added: 7 September 2011
age discrimination | contract worker | performance issues
This unusual age discrimination claim was brought by a contract worker with poor people skills who believed that his contract was terminated because of his youth.
Practical tips
Employers need to remember that discrimination legislation extends to protect contract workers, not just employees.
The tribunal here took the similarities in age between the alleged wrongdoers and complainant as a factor against a presumption of age bias. However, it is quite possible for a perpetrator to commit age discrimination against an individual who is in the same age group. |
Mr Polat, who was born in 1983, is an IT expert and was placed by an agency with a school as an interim network manager. The school was looking for a long-term appointment and arranged for the agency to put forward a number of candidates for the role, including Mr Polat, who was chosen out of the 12 candidates and took on the job under a contract for services (he was not an employee).
While working for the school, Mr Polat came in for some criticism. His line manager, Ms Franklin, had to deal with some performance issues and the ICT teacher, Ms Sutherland, also had difficulties with him. It was alleged that Mr Polat's manner was often unhelpful, with his universal answer to queries being to tell staff with an IT problem to "restart [their] computer".
There also appear to have been problems with Mr Polat's communication, in particular relating to his attendance. On several occasions, he took time off without telling his line manager that he was going to be absent. His failure to turn up to one meeting meant that the school did not have technical information on a virtual-learning project, with the result that the school "looked foolish" when a local authority representative visited to discuss the project.
On another occasion, Mr Polat woke up with flu-like symptoms and slipped into an email sent that morning on another matter "almost as an aside" a statement that he would not be in that day. He did not give a reason for his absence. He logged off and did not respond to any of Ms Franklin's emails. The next day, Mr Polat rang the school administrator to say that he was "ill" and did not ring Ms Franklin directly.
The school contacted the agency a few days later to get a list of alternative candidates and the head teacher, Ms Wilkins, took the decision to terminate Mr Polat's contract.
Mr Polat claimed age discrimination. He relied heavily on an email exchange between Ms Franklin and Ms Sutherland that he said showed their bias against him because of his age. Statements that they made included:
- Ms Sutherland: "I don't like Sait [Mr Polat]."
- Ms Sutherland: "I don't like people who 'knows it all' [sic]."
- Ms Franklin: "Don't worry…he will find out soon enough…he is still young."
- Ms Sutherland: "Yeh, these bloody young boys."
They went on to say that they missed Mr Taylor, the previous interim network manager, who is several years younger than the claimant (although they qualified this by saying that they missed "his brains, not the attitude").
The employment tribunal rejected Mr Polat's age discrimination claim. It was highly critical of his lack of communication, given how important the reporting of absences is in any workplace and for any employee, agency worker or contract worker. In relation to Mr Polat's absence with flu symptoms, it found his explanation to be "frankly bizarre". He said that he did not give a reason because he was afraid that, if he admitted that he felt the flu coming on, the school might be closed down because there was a swine flu outbreak at the time. The tribunal did not understand why he did not simply think of an analogous excuse, even if it was a "white lie".
The tribunal held that, although the email exchange by senior teachers was unwise, age was not a "significant factor" in the decision to end Mr Polat's assignment. While the email exchange was sufficient to shift the burden of proof, the school succeeded in showing that the decision was not because of age. The tribunal was influenced by factors such as:
- the previous person in the post being even younger and Ms Sutherland keeping in contact with him after he left;
- the hiring of Mr Polat in the first place, which did not suggest that the school had something against him because of his age; and
- Mr Polat's successor being around the same age as him.
The tribunal also said that a factor against any inference of age was that the age gap between Mr Polat (who was 27 at the time) and Ms Franklin and Ms Sutherland (both 34) was not significant.
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Teacher accused of inappropriate relationship with pupil was unfairly dismissed
Oram v The Governing Body of Hertswood School and another ET/3302451/09
Date added: 1 September 2011
unfair dismissal | gross misconduct | disciplinary evidence
As this case shows, it is crucial that an employer treats each piece of evidence in a disciplinary hearing carefully and appropriately.
Practical tips
This case demonstrates that employers must give the appropriate weight to each piece of evidence in disciplinary proceedings.
First-hand evidence should, generally, be afforded more weight than evidence from individuals not directly involved in the allegations in question.
If an employer disregards crucial evidence without good reason, it can expect a finding of unfair dismissal even it appears that the employee is guilty of the allegations. |
Mr Oram was employed by the school as a drama teacher. In autumn 2007, he was heavily involved in the school production of Bugsy Malone, in which Ms Curran, a sixth-form student, had a lead role. Rumours began to circulate at the school that Mr Oram was engaged in a relationship with Ms Curran. For example, Mr Oram was spoken to by his head of department about giving Ms Curran a lift home, and was advised of the dangers of being alone with a female student. After the end of the production, Mr Oram gave Ms Curran no further lifts home, although he did take her out for coffee. In March 2008, the school received anonymous telephone calls from someone making assertions about a potential relationship. During the Easter holidays, more anonymous messages were been left on the school’s answer phone suggesting a sexual relationship between Mr Oram and Ms Curran.
At the start of the summer 2008 term, the headteacher asked Mr Kenny, an assistant head, to investigate the allegations. He initially interviewed four students, and Ms Curran and her parents.
Three of the students passed on information that they had heard, from Ms Curran and others, that she was in a relationship with Mr Oram. One said that Ms Curran had told him that the two had, after a drive home, “started kissing and everything”. Another said that Ms Curran had said that she had had sex with Mr Oram. However, another of the students, Ms Wyatt, said that, although she had heard suggestions of a relationship, they were only rumours.
Mr Kenny interviewed Ms Curran and her parents on 9 April. With the consent of her parents, he interviewed Ms Curran alone. According to his version of events, when Ms Curran was alone, she admitted to being in Mr Oram’s car and having his number stored on her phone. After her parents returned, he claimed that Mrs Curran told him that her daughter had admitted a relationship with Mr Oram, although she denied having had sex with him. When asked what a “relationship” meant, Ms Curran said “well, you know”. Mr Kenny then asked if she was talking about “kissing and fondling”, and Ms Curran said “yes”.
According to Mr Kenny, he then spoke to Mr Oram and said that Ms Curran had substantiated the rumours about a relationship. Mr Oram, said Mr Kenny, told him that he felt that he had been stupid, but that the parents knew what was going on.
The following morning, Mr Oram offered his resignation, saying that, although the relationship had become “over-friendly”, there had been no kissing or touching. The school suspended Mr Oram and contacted the local authority, which passed the matter to the police. When interviewed by the police, Ms Curran retracted the evidence given to Mr Kenny about being in a physical relationship. She said that she had admitted to such a relationship to Mr Kenny because she had felt pressured by him and wanted to get out of his office.
The police officer investigating the matter, DC Prior, reported that the students were not reliable witnesses. He told the school that there was no scope for proceedings without more than the circumstantial evidence available, given the non-cooperation of Ms Curran and her parents.
Another assistant head, Mr Wood, began an investigation in autumn 2008. When interviewed, Mr Oram denied an improper relationship. Mr Curran told Mr Wood that he trusted Mr Oram, and that Ms Curran had made her admission to Mr Kenny when he and his wife were not present, and had done so because she was “tired of the rumours and wanted everything to stop”. Mr Curran recalled an argument during the meeting with Mr Kenny, when his daughter had accused Mr Kenny of “trying to put words into her mouth”.
On 18 September 2008, DC Prior emailed the headteacher, saying that he was sorry that he could not do more with the investigation. He said that he “did not doubt that [Ms Curran and Mr Oram] were in a relationship, that the parents knew and [that] they were covering it up”.
A disciplinary hearing took place on 16 March 2009, to deal with allegations that Mr Oram had, “despite warnings and advice to the contrary…engaged in a relationship with [Ms Curran] not commensurate with [his] position as a teacher”. The disciplinary panel came to the conclusion that the students’ evidence could not be given strong weight. However, it took into account DC Prior’s email, which it interpreted as indicating that he believed that a physical relationship had been going on. The panel decided that Ms Curran’s admission had not been given under duress, and that Mr Kenny’s version of events should be accepted.
The panel found that Ms Curran’s retraction did not detract from her original admission to Mr Kenny, and that Ms Wyatt’s evidence was inconclusive. It concluded that there was no evidence that Ms Curran and Mr Oram were having sex, but that there had been kissing and touching of a sexual nature, and dismissed Mr Oram for gross misconduct. The panel did not regard the other conduct – giving a lift to Ms Curran, or taking her for coffee – as sufficient alone to warrant dismissal.
Mr Oram appealed. Before the appeal hearing, Mr Curran and his daughter wrote statements to the school. Mr Curran was upset by DC Prior’s allegation that he and his wife were covering up a relationship, and Ms Curran said she had nothing more than a teacher/student relationship with Mr Oram. Mr Oram’s appeal was rejected, and he claimed unfair dismissal.
Given that the school had admitted that the matters other than the alleged kissing and touching (such as the lift/coffee) were not sufficient grounds for summary dismissal, the tribunal found that the crucial aspect was the physical contact. The tribunal considered the grounds on which the school had concluded that Mr Oram had been guilty of inappropriate physical misconduct.
The tribunal noted that the allegation against Mr Oram was serious and career-threatening. In these circumstances, the tribunal said, a reasonable employer will look for cogent and persuasive evidence. The tribunal found that the crucial question was whether or not the school had acted reasonably in disregarding Ms Curran’s retraction. She was the key witness, and one of only two people – the other being Mr Oram – who knew what had really happened. There was no first-hand evidence from any third party.
The tribunal found that the disciplinary panel and appeal panel's reasoning regarding Ms Curran’s admission and retraction was flawed. The panels had ignored the fact that Ms Curran had said to the police that her admission had been made under pressure. Further, the panels assumed that, because Mr Curran had said that there had been no “deliberate duress” with regard to the admission, this meant that he had not alleged duress, which was a distortion. The panels had also relied on DC Prior’s opinion that there was a relationship and a cover-up, which was “mere speculation”, and had disregarded Ms Wyatt’s statement, which was “highly relevant” and corroborative of the validity of Ms Curran’s retraction.
In light of the above, the tribunal found that the school had acted unreasonably in rejecting Ms Curran’s retraction of her earlier admission and did not have reasonable grounds for its belief in Mr Oram’s guilt. The tribunal held that Mr Oram’s dismissal was unfair but, on the ground that some of his actions were “reprehensible or misjudged”, assessed his contributory fault at 50%.
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Employee who commented on Facebook that she worked "in a nursery" was unfairly dismissed
Whitham v Club 24 Ltd t/a Ventura ET/1810462/10
Date added: 1 September 2011
unfair dismissal | gross misconduct | Facebook
An increasing number of tribunal cases involve employees making work-related comments on Facebook. This case shows that derogatory comments will by no means always justify dismissal.
Practical tips
Cases such as this are increasingly common and, although adverse comments on Facebook will often warrant some sort of disciplinary action, some employers are too quick to dismiss.
A key consideration for the employer in many of these cases is the potential impact that the comments in question could have on the employer’s relationship with clients or other third parties. If there is a negative impact, this will be a key factor in justifying a serious disciplinary sanction, including dismissal.
However, where the employer has investigated and found no evidence of a deleterious impact on relationships with third parties, it should be wary of dismissing the employee unless there are other justifiable grounds on which to do so – for example, where he or she is in clear breach of the employer’s policy on use of social media. |
Mrs Whitham was employed by Club 24 Ltd as a team leader. The company provides customer services for Skoda, which is part of the Volkswagen group. The group is an important client of the company. Representatives of Skoda and Volkswagen worked at the company’s premises, and Mrs Whitham’s line manager, Mr Walsh, reported to a Volkswagen employee, Mr Hough.
Until the events that resulted in her dismissal, Mrs Whitham had a clean disciplinary record. On 14 September 2010, having apparently had a difficult day at work, she posted on her Facebook account: "I think I work in a nursery and I do not mean working with plants." One of her colleagues posted a message, and Mrs Whitham replied: "Don’t worry, takes a lot for the bastards to grind me down. LOL." A former colleague suggested that Mrs Whitham worked "with a lot of planks". Mrs Whitham replied: "2 [sic] true xx."
A number of other comments were made by colleagues. Mrs Whitham had around 50 friends on Facebook, and had arranged her privacy settings so that only they, and no other user or member of the public, could see her daily messages.
The matter was brought to Mr Walsh’s attention, and he saw the messages. He believed that they were "unacceptable", and spoke to Mr Hough. He told Mr Hough that he was going to conduct a disciplinary investigation. Unfortunately, as the tribunal noted, it is not clear if Mr Hough expressed any view on behalf of Volkswagen as to whether or not Mrs Whitham’s conduct had any adverse effect on the relationship between the two companies. The tribunal later heard hearsay evidence that Mr Hough was "concerned" as to Mrs Whitham’s future employment. However, it also heard from Mrs Whitham that she had a good working relationship with Mr Hough and had no reason to believe that he would take a serious view of the matter.
Mr Walsh was seriously concerned that the matter could have a detrimental effect on the relationship between the company and Volkswagen, and suspended Mrs Whitham. When he explained the situation to her, she accepted that her conduct was "perhaps not the most appropriate". Mr Walsh decided that disciplinary proceedings were appropriate, to address not only the Facebook charge, but also an allegation that Mrs Whitham had violated the terms of her suspension by communicating the fact of it to third parties. Mr Walsh decided that no action should be taken against the other employees who had posted responses to Mrs Whitham’s comments, a decision with which the tribunal later agreed.
The disciplinary hearing was heard by Mr Leishman, who considered the investigation notes and a "grovelling" apology from Mrs Whitham. He concluded that there was "extreme embarrassment" to the company, and that the comments put the company’s reputation at risk. At the tribunal hearing, he said that there was a choice to be made between the company’s relationship with Volkswagen and Mrs Whitham’s employment. He took into account a company policy stating that employees’ obligation of confidentiality extended outside the workplace, and that "posting information about your job on the internet (for example, on…Facebook)" might lead to disciplinary action.
Mr Leishman accepted that Mrs Whitham’s second comment was not work-related. However, he regarded Mrs Whitham’s alleged breach of the terms of her suspension as the "main issue", and decided that she should be summarily dismissed. Mrs Whitham’s appeal against the decision was heard by Ms Davies.
Ms Davies "properly and relatively quickly" accepted Mrs Whitham’s argument that she had not been told not to communicate the fact of her suspension to third parties, which left the Facebook comments as the only issue. Ms Davies took HR advice:
- On 13 October 2010, Ms Davies apparently told an HR adviser that the message on Facebook "wasn’t too horrendous", and that "a warning would have been possible rather than dismissal".
- On 20 October, a second HR adviser told Ms Davies that the company perhaps "should have looked at different options to dismissal", such as demotion or redeployment.
- On 21 October, the second HR adviser spoke to Ms Davies and noted that: "[Ms Davies] agreed that if we cannot demote [Mrs Whitham] within [the company] as the contract does not provide for this…the only option [is to] uphold [the] decision [to dismiss]".
Ms Davies found, contrary to Mr Leishman's views, that Mrs Whitham’s second Facebook comment was work-related. She dismissed the appeal, and Mrs Whitham claimed unfair dismissal.
The tribunal found that Mrs Whitham, in her Facebook comments, was not complaining about Volkswagen as such, but about her working conditions and/or the people with whom she was working. It found that Mrs Whitham was a "sacrificial lamb". The tribunal said that it would be a "very strange world" in which a company the size of Volkswagen would terminate an important commercial agreement with the company because of some relatively mild comments – which did not refer to Volkswagen – made by a relatively junior employee of the company.
With regard to the company’s policy on Facebook postings, the tribunal found that this was not a case where Mrs Whitham had used Facebook to provide confidential information to third parties or other employees.
The tribunal considered if the real reason for the dismissal might have been third-party pressure from Volkswagen, which could properly be classified as some other substantial reason. However, it decided that that was not the case. There was not sufficient evidence of any third-party pressure, or even any view that Volkswagen had on the matter. The disciplinary and appeal officers were concerned about the potential for such pressure.
The tribunal found that the company’s failure to obtain any specific views on the incident from Mr Hough, on behalf of Volkswagen, was unreasonable. Further, if Ms Davies had conducted any "proper enquiry" into the second Facebook comment, she would "undoubtedly" have reached the same conclusion as Mr Leishman, ie that it was not work-related. She was "entirely unable" to offer any proper explanation of how her view of the Facebook comments changed from "not too horrendous" to sufficiently serious to warrant dismissal within a week.
The company had entirely failed to understand its own disciplinary procedures, rules and policy. The tribunal found that perhaps the most serious element of the company’s unreasonable approach was its attitude to demotion. Ms Davies’ evidence was clear: she would have demoted Mrs Whitham had she been told that she had the power to do so. She was told that there was no contractual power to demote. Mrs Whitham would have accepted demotion, regardless of whether or not the company had the contractual power to impose it as a disciplinary sanction. The company acted unreasonably by failing to allow Mrs Whitham the option of demotion in circumstances where Ms Davies "clearly thought that [that] was the appropriate result of the appeal".
The tribunal held that, even if all the above failures had not taken place, the company’s decision to dismiss Mrs Whitham was outside the band of reasonable responses open to a reasonable employer. She had the strong mitigating circumstances that:
- she had an exemplary record;
- she had personal problems relating to her son’s death and her husband’s fidelity;
- her comments did not specifically refer to Volkswagen;
- there was no evidence of any embarrassment on the part of Volkswagen or likelihood of actual harm to its relationship with the company; and
- she had immediately apologised.
The tribunal held that Mrs Whitham had been unfairly dismissed, and assessed her contributory fault at 20%.
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