Why appeals are absolutely crucial

Employees often say that they feel appeals are a bit of a waste of time, and it is true that in our experience the vast majority of appeals result in the original decision being upheld. However, a recent case illustrated that whatever the outcome, they can play a very significant part in any subsequent claim the employee may make.

The case was Evans-Nixon v Staffordshire South West Citizens’ Advice Bureau and involved a long-standing CAB employee who had been dismissed for redundancy after a series of funding cuts. A selection exercise had been undertaken to determine who was made redundant, and the Claimant argued that she had been unfairly disadvantaged in the scoring process while less experienced colleagues had been retained. She also argued that her age and her disability (she suffers from a brain disorder called leukoencephalopathy) were factors in the CAB’s decision to dismiss her.

The Employment Tribunal considered her case and found that the individual scores had not been discussed with her, and she also had not been given a chance to dispute the scores before the CAB had taken the decision to terminate her employment. On that basis, the Claimant’s dismissal had been procedurally unfair. However, the Tribunal found that there was no disability or age discrimination.

So far, so straightforward. However, the Tribunal also went on to consider the appeal process that had been undertaken by the CAB’s chief executive. It found that she had not undertaken a ‘rubber stamping’ exercise, but rather had listened to the Claimant and had carefully examined the evidence. As a result of her findings, she had upgraded one of the Claimant’s scores (this did not change the outcome because even with the increased score, the Claimant would still have been dismissed).

The Tribunal concluded that the appeal had been a “comprehensive and detailed reassessment” of the Claimant’s situation. As a result, the Tribunal determined that any compensatory award payable to the Claimant should be reduced by 80%, on the basis that the appeal had been so thorough it had demonstrated that even if the Claimant had been able to dispute her scores before her dismissal, the chance of it making any difference was low. This is known as a Polkey reduction (named after a landmark case) and our previous article on Polkey reductions can be found here.

Obviously employers would prefer not to have an unfair dismissal finding against them in the first place, but if dismissal is found to be technically unfair, this case is a prime example of how crucial the appeal stage can be. Ideally appeals should always be heard by someone with sufficient authority to overturn the original decision, and they should be a genuine examination of the issues being raised by the employee.

If you need help with advice on an appeal process or any other aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk). In some circumstances we can also help with conducting the appeal process – for more information see our Investigations, Hearings and Appeals page.

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.

What Not to Ask at Interview!

A recent survey of 2,000 managers who have responsibility for interviewing found that 85% of them admitted to having asked inappropriate questions of a candidate at interview. Can you be sure that managers at your organisation wouldn’t do the same?

While it is of course important that line managers are involved in the recruitment process in order to find candidates with the right skills and experience for the role, it is important that they are properly trained in putting equal opportunities into practice.

The main topics to avoid at interview are things that relate to a protected characteristic of the candidate. The protected characteristics under the Equality Act 2010 are: sex, race, disability, age, religion or philosophical belief, sexual orientation, pregnancy/maternity, gender reassignment and marital status. An unsuccessful candidate could bring a claim if they feel they have been turned down for the job for a reason relating to any of those characteristics.

Here are some examples that we have come across previously which have got interviewers (and their employers) into hot water:

 – Do you have children? or Are you thinking of starting a family?

Even in 2018 these questions are still asked far more often than you think, and are usually (but not exclusively) targeted at women. Neither of these questions relate to the individual’s ability to do the job, and therefore should be off-limits.

– Are you married? or Are you in a relationship?

Similar to the above, these questions about a candidate’s personal life cannot be relevant to the job and therefore suggest discrimination.

– How old are you?

Although there are some situations where this question might be justifiable, those will be relatively unusual. For most jobs, it is not relevant how old someone is, so there is no need to ask. (In practice, it is usually not difficult to work out someone’s approximate age from their education history anyway!).

– Where are you from? or Where’s your accent from? or Where were you born?

Although some interviewers seem to see these questions as small talk, they could leave them open to accusations of discrimination on the grounds of ethnic or national origin. It is best to leave the topic well alone – again, none of these subjects relates to someone’s ability to do the job.

– Are you fit and well?

This one is a bit more tricky. Employers are entitled to ask candidates whether there may be any reasonable adjustments required, such as for the interview process, but this needs to be handled carefully in case it comes across that the employer is trying to filter out candidates who might be disabled. Employers can also ask pre-employment health questions where they are intrinsic to the role, such as “Do you have any health problems which might prevent you from climbing ladders?” but this will of course depend on the nature of the role concerned. It is generally best to stay away from generalised questions about health.

 

If you aren’t sure whether your managers might ask questions like the ones above, it sounds as if a training session could be in order. In which case, we can help! Over the years we have helped a number of organisations with their equal opportunities training, which is also a key part of a defence against a discrimination claim. Do get in touch to find out more.

If you would like to find out more about employment law training, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

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.

 

 

Don’t let your company vehicle policy drive you round the bend!

The recent Employment Tribunal case of Genus and Kelly v Fortem Solutions Ltd involved two employees who carried out property repairs and who were each given company vans. Both were long serving employees with prior clean disciplinary records, but were dismissed for gross misconduct for using company vans for private purposes.

Fortem had investigated the employees’ use of company vans, looking at the records from the tracking devices fitted to the vehicles. The results of the investigation suggested that the employees were in breach of company policy regarding private use of company vehicles.

One of the employees had used his company van to visit his mother’s house on several occasions, to stop off at shops on the way home, and on one occasion he had driven 20 minutes out of his way for a private errand.

The allegations against the other employee included watching his son play football while he was on call, going to a supermarket on a number of occasions, and going to the barbers on his way home.

The employees were dismissed following a disciplinary process, and their subsequent appeals were unsuccessful. They brought claims in the Tribunal for unfair dismissal.

Fortem’s driver and vehicle policy said:

“Vans are exclusively for company business and may not under any circumstances, be used for private purposes other than for ordinary commuting. Unauthorised use of a company vehicle is deemed to be gross misconduct and may result in dismissal.”

The employees argued that they hadn’t seen the policy, but the Tribunal found that it was the case that the policy was unclear, rather than they hadn’t seen it. The Tribunal also found that the employees had previously received letters stating that “company vans may not, under any circumstances, be used for private travel” and that “private use of a Company vehicle is considered gross misconduct”.

The Tribunal found that the employees had also signed a form when they collected a new company van, which said “I understand that this vehicle has been provided for business use only…”

That all seems pretty clear, doesn’t it? However, the issues that arose included whether company vans could be used for private purposes if the employee was on call, or if they were stopping at a shop on their way home from work.

The Tribunal found that the policy documents did not provide any explanation of what ‘private use’ or ‘business use’ was and that it would have been reasonable for the employer to look into the confusion around whether calling in somewhere on the way home was private use, and whether company vans could be used for private travel while the employee was on-call.

However, the ambiguity of the policy documents did not make the dismissals unfair because, on their own understanding of the rules, the employees in this case did contravene them.

The dismissals were found to be unfair, however, because the Tribunal found that any reasonable employer would have taken the employees’ long service and prior clean records into account. That said, the Tribunal found that the employees’ compensatory award should be reduced because they had knowingly breached the employer’s policy.

Whilst the lack of clarity in the company policy was not the deciding factor in this case, the Tribunal’s comments do highlight the uncertainties that can arise if the rules are not sufficiently clear. We can work with you to draft and review policies to ensure that you have clear documentation which protects your organisation and reduces the risk of dispute – contact us to find out more.

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 enquiries@pureemploymentlaw.co.uk).

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.

The importance of equal treatment

No, I don’t mean equal treatment in terms of discrimination and the Equality Act (although that is important too of course!), but rather the importance of consistency when dealing with disciplinary issues.

Common sense says that if you have more than one person misbehaving in a similar manner then, in the absence of any good reason not to, any disciplinary sanction should be the same. Treating different employees differently for committing the same or similar acts of misconduct has always been one of the factors which an Employment Tribunal will look at when deciding whether or not a dismissal was unfair. As part of considering the reasonableness of the decision it is not necessarily enough to show that the sanction merited dismissal, the sanction also needs to ‘fit’ with the approach the employer has taken in dealing with issues with other employees.

This principle was illustrated quite dramatically in the recent case of Doy v Clays Limited. Mr Doy had been employed by Clays Limited since 2004. He raised issues about how he should be paid for working night shifts, and his queries were answered by his line managers, Mr Smith and Mr Bullen, in a letter which Mr Doy received on 14 April 2016. When Mr Doy arrived for his night shift that evening, he told colleagues that “he hoped that his line managers died” and that “he may have to kill them and he hoped that their children got cancer and died.” Not surprisingly, his employers took this seriously and suspended Mr Doy on full pay pending an investigation. Mr Doy then was signed off with stress.

A disciplinary meeting was scheduled, but before this took place Mr Doy handed in another sick note to an administrator and told her “I will expose this company to the media and on social media. I will show them how corrupt this company is.” He added that he would “find out where Bullen lives and go and tell his missus what kind of a bloke he really is.” When Mr Bullen heard of these threats he decided to move his family out of their family home.

Soon after this encounter a disciplinary hearing was conducted, at which Mr Doy was dismissed for gross misconduct. Mr Doy brought a claim of unfair dismissal, arguing amongst other things that he had been treated more harshly than other employees. His claim was dismissed by the Tribunal. Mr Doy appealed to the Employment Appeal Tribunal (EAT), again on the grounds that he had been treated more harshly than other employees in similar circumstances. He gave examples of an alleged incident where during an altercation between two employees one said: “Who are you going to kill next in your car?” to which the other answered “I hope your next wife”. He also alleged that the same shift manager had seen one woman punch a colleague in the face before hitting another weeks later. Mr. Doy claimed that none of the employees in these alleged incidents had been dismissed.

The EAT held that the Employment Tribunal which had dismissed Mr. Doy’s claim for unfair dismissal had not adequately investigated whether there was a disparity in the way the company had treated him when compared to other employees. They therefore ordered that the case should be reheard by a different Tribunal. It may well be that the new Tribunal will conclude that Mr. Doy was fairly dismissed, but the case is a good illustration of how employers can pay a heavy price for allegedly treating employees inconsistently. Even though they may ultimately be found not to have unfairly dismissed Mr. Doy, the very fact that they had to go through two Tribunal hearings and an appeal to the Employment Appeal Tribunal should be enough incentive to ensure that they can demonstrate that they treat employees consistently.

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 enquiries@pureemploymentlaw.co.uk).

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.

Employment Law Update Breakfast Workshop – 15 November 2018

Join the solicitors at Pure Employment Law for our next update session, bringing you up to speed on all the latest developments in the fast-paced world of employment law. By popular demand, we will update you in a round table format with lots of opportunity to ask questions.

As always, there’s no shortage of topics to cover, and we will bring you our usual down to earth take on topics including the following:

– The increase in Tribunal claims – what does the new landscape look like?

– Employment status – what does it mean in practice?

– Sexual harassment – how should you handle a ‘Me Too’ situation?

Case law update, including cases on unfair dismissal, discrimination and references

– Q&A / surgery session

Don’t miss this opportunity to learn from our friendly team of solicitors, with the chance for discussion both during and after the workshop.

Location & Times

This workshop will be a breakfast event on Thursday 15 November with registration from 8am with refreshments, pastries and fruit available. The workshop will begin at 8.30am and we would expect to finish at around 9.30am.

The event will be held at in our seminar room at our offices, 1 Little London, Chichester, West Sussex PO19 1PH (please click here for a map).

Our office is very close to the Little London public car park, but it is within easy reach of the other city centre car parks too (the city parking map is available here).

How to Book

In order to book your place, please complete the form at the right hand side of this page. There is no charge for this event. Places are available on a first come, first served basis and we will contact you to confirm your booking. As numbers are limited, we reserve the right to limit the number of attendees per organisation. Due to the popularity of our events please note that a place is only guaranteed once we have confirmed your booking by email.

We look forward to seeing you!

Employment Law Update Evening Workshop – 8 November 2018

Join the solicitors at Pure Employment Law for our next update session, bringing you up to speed on all the latest developments in the fast-paced world of employment law. By popular demand, we will update you in a round table format with lots of opportunity to ask questions.

As always, there’s no shortage of topics to cover, and we will bring you our usual down to earth take on topics including the following:

– The increase in Tribunal claims – what does the new landscape look like?

– Employment status – what does it mean in practice?

– Sexual harassment – how should you handle a ‘Me Too’ situation?

Case law update, including cases on unfair dismissal, discrimination and references

– Q&A / surgery session

Don’t miss this opportunity to learn from our friendly team of solicitors, with the chance for discussion both during and after the workshop.

Location & Times

This workshop will be an evening event on Thursday 8 November with registration from 5.30pm with refreshments available. The workshop will begin at 6.00pm and we would expect to finish at around 7.15pm.

The event will be held at in our seminar room at our offices, 1 Little London, Chichester, West Sussex PO19 1PH (please click here for a map).

Our office is very close to the Little London public car park, but it is within easy reach of the other city centre car parks too (the city parking map is available here).

How to Book

In order to book your place, please complete the form at the right hand side of this page. There is no charge for this event. Places are available on a first come, first served basis and we will contact you to confirm your booking. As numbers are limited, we reserve the right to limit the number of attendees per organisation. Due to the popularity of our events please note that a place is only guaranteed once we have confirmed your booking by email.

We look forward to seeing you!

Employment Law Update Breakfast Workshop – 6 November 2018

**This event is now fully booked – if you are interested in coming we can add you to our reserve list in case another person drops out. Otherwise, we still have some spaces available for our evening workshop on 8 November and our breakfast workshop on 15 November**

Join the solicitors at Pure Employment Law for our next update session, bringing you up to speed on all the latest developments in the fast-paced world of employment law. By popular demand, we will update you in a round table format with lots of opportunity to ask questions.

As always, there’s no shortage of topics to cover, and we will bring you our usual down to earth take on topics including the following:

– The increase in Tribunal claims – what does the new landscape look like?

– Employment status – what does it mean in practice?

– Sexual harassment – how should you handle a ‘Me Too’ situation?

Case law update, including cases on unfair dismissal, discrimination and references

– Q&A / surgery session

Don’t miss this opportunity to learn from our friendly team of solicitors, with the chance for discussion both during and after the workshop.

Location & Times

This workshop will be a breakfast event on Tuesday 6 November with registration from 8am with refreshments, pastries and fruit available. The workshop will begin at 8.30am and we would expect to finish at around 9.30am.

The event will be held at in our seminar room at our offices, 1 Little London, Chichester, West Sussex PO19 1PH (please click here for a map).

Our office is very close to the Little London public car park, but it is within easy reach of the other city centre car parks too (the city parking map is available here).

How to Book

In order to book your place, please complete the form at the right hand side of this page. There is no charge for this event. Places are available on a first come, first served basis and we will contact you to confirm your booking. As numbers are limited, we reserve the right to limit the number of attendees per organisation. Due to the popularity of our events please note that a place is only guaranteed once we have confirmed your booking by email.

We look forward to seeing you!

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
enquiries@pureemploymentlaw.co.uk | 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

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