22 February 2008
Expired warnings can be taken into account when deciding whether to dismiss
The Court of Appeal has recently overturned the tribunal decision (upheld by the Employment Appeal Tribunal (EAT)) in Airbus UK v Webb, reported in our update last year, and has confirmed that the tribunal was wrong to find that because the employer had taken into account an expired warning when making its decision to dismiss, it followed that the employee was unfairly dismissed. The Court held that the earlier Scottish case relied on by the tribunal in relation to this point, Diosynth Ltd v Thomson, was not authority for the broad proposition that a previous spent warning should be ignored for all purposes.
The central question to be determined, under section 98(4) of the Employment Rights Act 1996 (which is the applicable law in relation to whether it is fair or unfair to dismiss an employee for misconduct) is whether, in the circumstances, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee. This is determined in accordance with equity and the substantial merits of the case.
The Court held that there is nothing in the wide wording of the provisions laying down a rule that the circumstances of the employee's previous misconduct must be ignored by the employer if the time limited final warning had expired at the date of the subsequent misconduct, which was the reason or principal reason for the dismissal. The fact of the previous misconduct, the fact of the final warning, and the fact that the warning had expired at the date of the later misconduct would all be objective circumstances relevant to whether the employer had acted reasonably or unreasonably and to the equity and merits of the case.
The Court of Appeal also stated that the Diosynth case could be distinguished from this case. In Diosynth, but for the previous warning, the employer would not have shown a reason for dismissing the employee. In this case, however, the reason for the dismissal was that the employee was guilty of gross misconduct, not that he had received a warning for his previous conduct.
By overturning the decisions of the tribunal and EAT, the Court of Appeal has clarified that whilst it will remain unreasonable for an employer to rely on expired warnings as the principal reason for dismissal, it will not be unreasonable for an employer to take into account a previous expired warning and the underlying misconduct where they are not the principal reason for the dismissal. Whilst this decision will undoubtedly be welcomed by employers, it was also noted by the Court of Appeal that the decision should not encourage reliance on expired warnings as a matter of course. Caution should therefore be exercised in these circumstances.
Dismissal not connected to paternity leave
A recent decision of the EAT has shed some light on the statutory right to paternity leave, an area which, to date, has rarely reached the tribunals. Upholding the tribunal's decision, the EAT confirmed that the dismissal of an employee was not due to him being on paternity leave. His dismissal was therefore not automatically unfair and the tribunal had applied the law correctly.
In Atkins v Coyle Personnel plc, Mr Atkin's line manager had agreed that he could take a week's paid leave for paternity leave on the condition that he remained contactable at home. The senior manager was not aware of this arrangement but it was subsequently confirmed to him by Mr Atkins, who advised the senior manager that he would always be contactable at home by landline or mobile.
While Mr Atkins was on paternity leave, the senior manager called him about a client query. Mr Atkins was asleep, having had a bad night with the baby. The senior manager left a message but when he realised that the matter could affect his commission, he asked a colleague to call Mr Atkins to explain the urgency. This led to Mr Atkins sending an email stating that he had had enough and had been pushed too far. A heated telephone conversation ensued and matters escalated, culminating in the senior manager telling Mr Atkins "you're f***ing sacked". Mr Atkins claimed automatic unfair dismissal.
The tribunal noted that although the dismissal took place when Mr Atkins was on paternity leave, the question for the tribunal was whether or not the reason or principal reason for that dismissal was connected with the fact that he took paternity leave. The EAT confirmed that this question was properly posed and was the correct approach. The senior manager was frustrated and annoyed by Mr Atkin's response when he was seeking to do him a good turn in relation to his commission and, as a consequence, in the course of the heated argument, lost his temper and dismissed him. On the face of it, such frustration and annoyance and the response could have arisen irrespective of Mr Atkin's being on paternity leave.
Interestingly, the EAT also expressed some "brief and tentative views" on the issue of whether the appropriate test under the Employment Rights Act 1996 and the Paternity and Adoption Leave Regulations is a causal test or some less stringent text (this argument had not been put before the tribunal and there were no exceptional circumstances which could justify the new point being considered on appeal). The EAT suggested that:
Protection from Harassment Act - bad-tempered conduct does not constitute harassment
The Court of Appeal has recently overturned a decision of the county court in a claim brought under the Protection from Harassment Act 1997 (the Act), which provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.
In Conn v Sunderland City Council, the Court of Appeal held that the county court was wrong to hold that the conduct of a site foreman amounted to harassment of an employee. The two incidents which were considered by the county court to amount to a course of conduct under the Act were examined by the Court of Appeal. The Court initially noted that, following the decision of the House of Lords in Majrowski v Guy's and St Thomas' NHS Trust, what crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. The touchstone for recognising harassment under the Act will be whether the conduct is of such gravity as to justify the sanctions of criminal law.
It was accepted that the second of the two incidents did cross the line to oppressive and unacceptable conduct. This involved the site foreman becoming angry and aggressive with the employee and threatening him with violence. The first incident, however, was not considered to have crossed the boundary into conduct which can be said to be unlawful. This incident involved the site foreman demanding to know of the employee and others who was leaving work early and threatening to smash the cabin windows with his fist. Whilst this incident was no doubt an unpleasant one for the employee, no physical threat was made; it solely referred to property. The remarks were also addressed to three people and the county court had found that neither of the employee's two work colleagues who were present were troubled by them.
In a decision which helpfully elaborates on the scope of the conduct covered by the Act, the Court of Appeal stated that this is the sort of bad-tempered conduct which, although unpleasant, comes well below the line of that which justifies criminal sanction under the Act.
New fines for illegal working from 29 February 2008
From 29 February 2008, a new system of penalties will come into force applying to employers who employ adults subject to immigration control in breach of the terms of entry or stay.
The penalties comprise a criminal penalty which will be triggered against those who knowingly employ illegal migrant workers and a civil penalty relating to negligent recruitment practice. Employers who knowingly hire illegal workers risk an unlimited fine and/or a prison sentence. Those who negligently hire illegal workers will face a civil penalty fine of up to £10,000 for each offence.
Increase in rates of statutory sick pay and statutory maternity, paternity and adoption pay
The following statutory payments are due to increase and will take effect from 6 April 2008:
MPs vote in favour of rights for temporary and agency workers
The Temporary and Agency Workers (Equal Treatment) Bill had its second reading in the House of Commons today, with MPs voting overwhelmingly in favour of the proposals to apply the principle of equal treatment to temporary and agency workers. The private members' bill will now be considered by a House of Commons Committee.
The TUC have welcomed the development, commenting that "this is good news for agency workers as it is an important milestone on the road to achieving fair treatment." The CBI, however, has commented that vulnerable workers would not benefit from the bill and 250,000 jobs would be put at risk.
The government has refused to back the bill. Last week, Gordon Brown offered to set up an independent commission to consider the rights of temporary and agency workers and bring the TUC and CBI together to consider how such workers could be given pay and conditions which are comparable to permanent workers. It is also intended that the commission would arbitrate on contested issues surrounding agency workers and would set out a process for identifying those full-time workers with whom an agency worker could compare wages and conditions.
"Well note" culture?
Attracting significant publicity this week, Alan Johnson, the Health Secretary, has called for all employers to do more to promote the health and well-being of their staff, moving the debate on from work-life balance to "work-health" balance.
Johnson has set out key steps which both employers and the government must take. These include:
Hitting most of the headlines has been Johnson's controversial aim to tackle incapacity benefits and to explore how GPs can help to change our sick note culture into a "well note" culture, potentially offering fitness to work advice to patients and employers. The Chartered Institute of Personnel and Development (CIPD) has welcomed the proposed changes, stating that "all the evidence shows that a phased return to work can play a beneficial role in the recovery of people suffering with this kind of illness. Work has a huge part to play in the early treatment and rehabilitation of people experiencing mental ill health. Employers are willing to do their bit, but they need support and better communication from GPs to facilitate appropriately phased returns to work".
Time to go home!
It may be Work your Proper Hours Day today, but figures released this week by the Chartered Management Institute suggest that, like many employees, UK managers are putting in too many hours, for too few returns.
Based on the views of 1,511 managers, the report indicates that efforts to reduce working hours in recent years have failed to have a positive impact. Some of the key findings of the study include: