Disciplinary hearings and absent companions – to postpone or not postpone?

We have previously covered an employee’s right to be accompanied by a colleague or trade union rep at a disciplinary or grievance hearing. As we explained in our previous article, if an employer fails to allow an employee to exercise this right, the employee could bring a claim for breach of the right, or a claim that they have been subjected to a detriment or dismissed because they have exercised or sought to exercise their right to be accompanied. Unless the employee has suffered particular detriment over and above not having a companion at the hearing, they should only be awarded nominal compensation, such as £2.

A recent case (Talon Engineering Ltd v Mrs V Smith) has, however, highlighted that there are more significant consequences for employers to consider if an employee cannot attend a hearing because their companion is unavailable.

Mrs Smith worked for a motorcycle manufacturer, Talon Engineering (“Talon”). Mrs Smith sent emails which were highly critical of her colleagues to an employee of an external company that had dealings with Talon (she had referred to an unnamed colleague as a “knob head”).

The disciplinary hearing

Following an investigation, Mrs Smith was called to a disciplinary hearing. The hearing was postponed as Mrs Smith was off sick. The hearing was rescheduled, but Mrs Smith’s trade union rep was not available. The rep suggested several alternative dates (the first of which was within 2 weeks), however Talon were not prepared to delay the hearing and so it went ahead in Mrs Smith’s absence. Mrs Smith was found to have committed gross misconduct and was summarily dismissed. She appealed and her appeal was rejected. Mrs Smith brought a claim in the Employment Tribunal for unfair dismissal.

The Employment Tribunal decision

The ET found that Talon had a potentially fair reason for dismissing Mrs Smith i.e. conduct, but concluded that no reasonable employer would have refused a further short postponement of the disciplinary hearing and gone ahead in her absence. There was no misbehaviour on the part of Mrs Smith, and things had not gone on for a particularly lengthy time. The further delay to ensure Mrs Smith’s attendance would have been a short one.

The ET also held that the appeal did not rectify the shortcoming of Mrs Smith being denied, improperly, the chance to have her side of the case heard at the disciplinary hearing.

Contributory fault

Mrs Smith’s dismissal was held by the ET to be unfair. Both her basic and compensatory awards were, however, reduced by 15% as she was found to have contributed to her own dismissal by her actions. The compensatory award was reduced by a further 15% to reflect the likelihood that she would have been fairly dismissed had a fair procedure been followed.

The Employment Appeal Tribunal decision

Talon appealed to the EAT, however the EAT upheld the finding of unfair dismissal.

The EAT also considered the right to be accompanied under section 10 of the ERA 1996, which says that the employer must postpone the hearing to allow the employee’s chosen companion to attend, if the proposed alternative is within 5 working days.

The EAT found that Talon appeared to believe that because Mrs Smith’s union rep suggested dates which did not fall within 5 working days, they were not obliged to reschedule the hearing. The EAT highlighted that the right to be accompanied and the law on unfair dismissal are “two quite different statutory provisions”. If Mrs Smith’s claim were for a breach of the right to be accompanied, then Talon could not be criticised for failing to reschedule the hearing given the union rep’s inability to attend a reconvened hearing within 5 working days. However, in a claim for unfair dismissal, the ET was entitled to find that it was unreasonable of Talon not to postpone the hearing in the circumstances.

We can help with advice on disciplinary proceedings and appeals, and we are also able to assist with handling such matters where appropriate. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Love thy colleague

On average, we spend over 42 hours a week at work. Inevitably, most of us therefore spend a lot of time with colleagues – often more than we do with our families. Most colleagues get on perfectly well, and the work place is the starting point for many lifelong friendships and more than a few romances.

However, spending all that time with people can lead to difficulties, and a recent survey by Vapourcore has identified the 10 things which colleagues did (or didn’t do) which irritated them the most. According to the survey, the 10 most irritating traits were these:

1. Body odour (43%)

Nobody wants to work with smelly colleagues, but it is obviously quite an embarrassing issue to raise with someone. We have advised employers who have had issues with smelly employees, and in one case this led to dismissal and a claim for unfair dismissal in the Employment Tribunal. This claim failed because the employer had behaved sensibly in dealing with the issue, despite the claimant’s wife telling the Tribunal that her husband didn’t smell, and she should know because she slept with him every night!

(Check out our previous article: ‘What should we do about an employee’s poor personal hygiene?’).

2. Ignoring emails (31%)

This was found to particularly annoy women. Certainly having to chase people who have ignored emails is time consuming and frustrating, but sometimes people do tend to send emails far too frequently and to far too many recipients. It sometimes seems that they are touching you with knowledge and covering their backs if anything goes wrong.

3. Not washing up (30%)

This was found to particularly annoy men. I am not sure why – perhaps they are spoilt at home!

4. Messy desks (26%)

Again, this particularly irritated men – perhaps for the same reason.

5. Interrupting people when they are talking (21%)

I suspect we are all guilty of this.

6. Taking too long in the toilet (20%)

This one surprised me – why would anyone choose to spend too long in the loo? If they do, perhaps they should look for a new job.

7. Talking loudly on the phone (18%)

I am certainly guilty of this, but I get annoyed by people who mumble – but that didn’t feature in the survey.

8. Smelling of cigarettes (15%)

I personally find this distasteful, but possibly more of those surveyed were smokers so didn’t notice the smell on their colleagues.

9. Cooking smelly foods in the staff kitchen (12%)

This, and smelling of cigarettes, annoyed men more than women. I have no idea why!

10. Wearing the same clothes day after day (10%)

Perhaps not surprisingly, this annoyed women more than men, especially when it was women doing it.

So there we have it – at least you now have some idea how to annoy your colleagues.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

References – useful guidance for employers

The question of references is still a thorny one for many employers. In a large proportion of the cases we deal with, references tend to be limited to the basic factual information (start date, end date, job title). This is often because employers don’t want to risk being sued for giving a poor reference (or one that’s excessively positive either!). However, the ‘bare facts’ approach doesn’t work in fields where fuller references are expected or required, such as in education, care work or other regulated environments. It is a popular misconception that “you can’t give a bad reference”. In fact, if you don’t give a bad reference when the situation merits one, particularly in a regulated environment, that can cause significant problems.

In the recent case of Hincks v Sense Network, the High Court was asked to consider a situation where a reference specifically mentioned findings from an investigatory process, yet that process had arguably been conducted unfairly. Was the reference negligent as a result? The judgment set out some very useful guidance for employers.

Facts

The case involved a regulated environment, because Mr Hincks’ role was to sell financial products. He was working for a company called CIFS as an independent financial advisor. CIFS didn’t have their own FCA authorisation, but were covered by an umbrella body called Sense Network. A transaction in 2014 was called into question from a regulatory point of view, and Sense Network requested Mr Hincks’ attendance at a meeting. He was not given any details of any charges or allegations prior to the meeting. After the meeting, Sense Network terminated Mr Hincks’ authorisation to act as an independent financial adviser. He was given a right of appeal, but his appeal was not upheld.

When Mr Hincks subsequently applied for roles elsewhere, the firms were required to take up references from Sense Network. Sense Network’s reference was written by the same person who had conducted the investigation meeting and made the decision to terminate the authorisation. It was a particularly negative reference and said (amongst other things) that “it was reasonable to conclude that he had knowingly and deliberately circumvented the agreed process.” Mr Hincks said that the reference had killed off his prospects of finding another job as an independent financial adviser.

Mr Hinks argued that the reference was negligent and that Sense Network should be required to compensate him. He raised a number of points about the fairness of the process, in particular that a proper investigation had not been carried out, he had not had an adequate opportunity to defend himself against the allegations, and the meeting had been carried out in a “harassing manner.” He argued that the reference had to be negligent if the person giving it had not satisfied themselves that the investigation had been carried out fairly.

The Court’s decision – and useful guidance for employers

The Court did not agree with Mr Hincks’ arguments, and said that if his case succeeded in establishing an obligation on writers of references to check the procedural fairness of investigations, it would cause problems for the whole system of the giving and receiving of references.

However, the Court took the opportunity to set out some key features of the duties that fall upon someone who is giving a reference:

“a) to conduct an objective and rigorous appraisal of facts and opinion, particularly negative opinion, whether those facts and opinions emerge from earlier investigations or otherwise;
b) to take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion;
c) where an opinion is derived from an earlier investigation, to take reasonable care in considering and reviewing the underlying material so that the reference writer is able to understand the basis for the opinion and be satisfied that there is a proper and legitimate basis for the opinion; and
d) to take reasonable care to ensure that the reference is fair, by not being misleading either by reason of what is not included or by implication, nuance or innuendo.”

The Court also noted that if there had been a “red flag” that justified further examination of the fairness of the process, that might have put an obligation on the referee to look into things further. However, no such “red flag” had existed in Mr Hincks’ case.

Conclusion

The guidance given by the Court in this case will prove very useful to employers who are required to provide ‘full’ references. My usual rule of thumb is “fair, factual and not misleading”, which is still a useful summary, but the Hincks case breaks that down and expands upon what that means in practice.

By employment law standards it does seem that Mr Hincks was not treated fairly, but of course he wasn’t an employee of Sense Network, and therefore different standards applied, which I think was a highly relevant factor in the Court’s decision.

If you are in doubt regarding a reference, it is always best to take advice. We have years of experience at advising on issues around references and are happy to help.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Even a 5 month gap doesn’t stop TUPE!

As you may be aware, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply when an undertaking transfers from one entity to another. This can be in situations like mergers and acquisitions, outsourcing and insourcing, and changes in contractor.

In the vast majority of cases, TUPE transfers are seamless – the employees are employed by one entity, and upon the TUPE transfer they are immediately employed by the new entity. TUPE means that their terms and conditions of employment transfer with them, and their continuity of employment is preserved.

Sometimes there can be situations where there is a gap. For example, if a restaurant is changing hands and needs to be refurbished before re-opening, there may be a period of time between the end of the employment with the first owner and the start of the employment with the new owner.

TUPE has specific provisions to state that a “temporary cessation of work” will not prevent it from applying. This is to prevent employers trying to play the system by closing a business for a short time in an attempt to avoid taking on liability for the employees.

Over the years the issue of a “temporary cessation of work” has come up in case law, but the courts have always tended to resist giving specific guidance on how long a gap has to be in order to be ‘temporary’, saying that it will depend upon the facts of a particular case.

The issue was dealt with recently by the European Court in the Spanish case of Colino Siguenza v Ayuntamiento de Valladolid. In the case, a music teacher worked at a state school. The running of the school was eventually outsourced to a private contractor, but in 2012/13 the relationship between the contractor and the local authorities deteriorated and the school was no longer profitable. As a result, the contractor dismissed all of the staff in April 2013.

The local authority put out a tender for a new contractor to operate the music school, and the new provider started running the contract in September 2013. The new music school used the same premises, instruments and resources, but with new staff.

A group of employees claimed that they should have transferred under TUPE. The case was referred to the European Court for guidance.

The European Court was asked to consider whether or not the long gap between the contracts had prevented there from being a TUPE transfer. They decided that the fact that an undertaking is temporarily closed, and has no employees, is a relevant factor, but not determinative, therefore TUPE had applied. They found it especially relevant that three of the five months’ closure were school holidays in any event.

Cases involving such a long gap are rare, but this is a good example of the courts interpreting TUPE “purposively”, i.e. bearing in mind the purpose for which it was introduced, which is of course the protection of employment. If employers are involved with buying businesses, or contracting in and out of services, it is definitely something to be aware of so that you don’t get caught out!

Unfortunately for the employees in the case, theirs was a bit of a Pyrrhic victory, as although TUPE applied, the European Court also found that they seemed to have been dismissed for an ETO (economic, technical or organisational) reason and therefore they hadn’t been automatically unfairly dismissed. However, the issue was referred back to the Spanish courts to consider the question of whether there had been a deliberate attempt to avoid TUPE, which would be void.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.