September 2023

What not to do if you are proposing to dismiss an employee

The Watford Employment Tribunal recently heard an unfair dismissal case, the facts of which provide some clear guidance to employers of what not to do when dismissing an employee.

In Kleina v Polish Village Bread the claimant was employed by the respondent as transport manager. There was a dispute between the two owners of the business and the claimant was caught-up in it. He went off work sick for five months with a cardiac issue. Several of his fit notes also mentioned work-related health issues. None of this was investigated by the respondent.

When he returned to work, he was immediately called to a meeting and summarily dismissed for gross misconduct. No investigation was carried out. The respondent alleged that, some five months previously, the claimant had cancelled a contract with a customer without the consent of one of the respondent’s owners. The claimant denied this. He appealed his dismissal and the appeal took a further two months to complete.

The tribunal held that his dismissal was both substantively and procedurally unfair. No investigation had been carried out. The evidence did not show that the claimant had cancelled the contract without the consent of the owner – in fact the owner’s contact details were included on the email to the customer cancelling the contract. The incident occurred five months before the dismissal and the appeal was two months later – the respondent did not act without delay. There was also no investigation and no attempt to ascertain the facts before acting.

This is obviously a fairly extreme case where the claimant was caught in a corporate dispute between two owners of a business. However, some general lessons can be taken from it:

• If you become aware of an allegation of misconduct then it should be raised and investigated without delay. The employer in this case was criticised for waiting for four months to raise the issue.
• Any allegation of misconduct should always be fully investigated before any action is taken. This should include verifying any documentary evidence, looking at surrounding circumstances and speaking to the employee and any other witnesses.
• The employee should be provided with a copy of all evidence upon which the employer proposes to rely in good time prior to any disciplinary meeting.

Government announces flexible working changes

Some changes are being made to the legal rules on flexible working under the Employment Relations (Flexible Working) Act 2023. The Act is likely to come into force next year. The following changes are intended:

• Employees will now be able to make two flexible working requests in any 12-month period (they are currently only able to make one).
• Requests must be dealt-with by employers within 2 months of receipt of a request if no extension is agreed (a reduction from the current 3-month period).
• Employers are not able to refuse a request until they have ‘consulted’ with the employee (although there is no explanation of the level of ‘consultation’ required).
• Employees will no longer have to explain in their application what effect they think agreeing to the request would have on their employer and how any such effect might be dealt with.

Notably the changes do not make flexible working a Day 1 right. The government is still proposing to do this but says that it will use secondary legislation in order to do so. No draft legislation has yet been published. This means that, for now, employees still need to have 26 weeks’ service in order to be eligible to make a request.

Acas publishes updated guidance on sickness absence

As well as their toolkit with tips and resources, Acas have released new and updated guidance on sickness absence which covers:

• checking holiday entitlement and sick pay;
• fit notes and proof of sickness;
• time of for dependants/parents;
• returning to work after absence;
• creating absence policies;
• recording and reducing sickness absence; and
• absence trigger points.

You can view the guidance in full here: https://www.acas.org.uk/holiday-sickness-leave

An introduction to payment in lieu of notice

When an employee leaves employment then, unless they have been immediately dismissed for gross misconduct, their departure will be subject to a notice period. The notice period which applies is usually set out in the contract of employment.

There will be a period of notice which is required to be given by the employee if they resign and a period of notice which is required to be given by the employer if they dismiss. Employees will generally work during their notice period. However, there can be circumstances where the parties would rather end the relationship as soon as possible. This can be done by paying the employee in lieu of what would have been their notice period. How are employers able to do this? We have set out some introductory facts below:

1. Employers only strictly have the right to pay in lieu of notice if there is an express clause in the contract of employment allowing them to do so, known as a payment in lieu of notice (PILON) clause.
2. Employers and employees can always agree that the employee will be paid in lieu of notice even if there is no PILON clause in the contract of employment. Any agreement should be recorded in writing.
3. If you pay in lieu of notice and terminate employment immediately without honouring the notice period when you do not have an express PILON clause in the contract of employment then you will be in breach of contract. The departing employee could rely on this breach to argue that any contractual terms which would otherwise survive termination (for example, restrictive covenants) are no longer binding on them.
4. If you are considering including a PILON clause in your contracts of employment, then you should make sure you make it clear whether the payment you would be making in lieu is of basic salary only or salary and benefits. If the contractual clause is silent on this point, then you are likely to owe salary and benefits which is likely to be more costly.
5. An employee is not entitled to any notice payment if they are dismissed for gross misconduct.
6. If you do not have PILON clause in your contract and you do not want the employee to actively work in the business during their notice period then you should consider whether, as an alternative, there is a garden leave clause in their contract employment entitling you to require them to stay away from work during their notice period.

Working in hot weather

The UK’s historically wet and cool climate means that businesses here are not used to having to worry about hot weather and its impact on employees and workers. However, times are changing. Global temperatures are rising and the UK has seen record temperatures and prolonged hot spells both in June and, most recently, in early August. What do employers need to know about working in hot weather? Here are some handy hints:

• There is no maximum temperature beyond which employees are not required to work in the UK
• The Management of Health and Safety at Work Regulations 1999 require employers to make a suitable assessment of the risks to the health and safety of their employees and take action where necessary and where reasonably practicable. This obligation applies to the risks posed by extreme heat. Employers should assess the risk posed in their workplace and look at what mitigation measures they can put in place.
• Examples of measures which could be taken to reduce health and safety risk include the provision of fans; moving working hours where possible to avoid employees needing to work in the heat of the day; making sure that water is accessible at all times and relaxing rules on uniform.
• Employers should take special care when considering the risk posed by heat to pregnant workers and any employees with disabilities. If hot weather prevents a disabled employee from carrying-out their role then the employer would need to look at what adjustments it could reasonably make to allow that employee to be able to work.

Ofsted inspector who touched a pupil was unfairly dismissed

The Employment Appeal Tribunal has held, in the recent case of Hewston v Ofsted, that an experienced Ofsted inspector who was summarily dismissed after touching a pupil’s forehead and shoulder to remove rainwater, was unfairly dismissed. The conduct itself was admitted by the claimant and an Employment tribunal initially decided that his dismissal was fair. This decision has now been overturned by the EAT for the following reasons:

• The claimant had not been provided with copies of key documents, including a statement by the child which had been seen by the dismissing officer, before the decision to dismiss him was taken.
• The respondent had no clear policy on the subject of touch, did not have a no-touch policy and, against that background “it was not fair to dismiss the claimant when he was not on fair notice that [his] conduct might attract [the] sanction [of dismissal]”.
• The tribunal had been wrong not to look at whether the respondent had considered the claimant’s representations regarding his long and unblemished record of service.

The claimant’s claim for wrongful dismissal was remitted to a fresh tribunal as the tribunal’s original decision had failed to “distinctly and sufficiently address” this claim in its own right (separately from unfair dismissal). HHJ Auerbach in the EAT gave a reminder that the tribunal “must decide whether, in its view, taking account of any findings as to the employee’s intent, the effect of the conduct and/or other relevant circumstances, the employer was objectively entitled to treat the substantive conduct as having so damaged the ongoing relationship as to justify bringing it to an end.”

Maya Forstater awarded over £100,000 following remedy hearing in gender critical belief discrimination case

The landmark case of Forstater v CGD Europe Limited was notable as the first case in which the UK courts confirmed that gender critical views (the belief that sex is biological and immutable) can form a protected philosophical belief under Equality Act 2010. Ms Forstater had succeeded in claiming that she had been directly discriminated against when she was offered no further CGD consultancy work and a visiting fellowship was not renewed after she had made her gender critical views public.

Following a recent remedy hearing she has now been awarded over £100,000 in damages, including loss of earnings, injury to feelings and aggravated damages. The injury to feelings award was £25,000. She was also awarded £2,000 in aggravated damages.

This remedy judgment is useful for employers as it provides a clear guide as to where tribunals are likely to pitch injury to feelings awards in similar cases. A reminder, if one was needed, that failing to treat employees with respect or treating them differently because of their beliefs can be very costly for employers.

Importance of following due process despite very serious allegations against claimant

In the recent case of Ahmed v Nat West an employee who was sacked after running several business websites, including sex work websites, some of which he registered to the office where he worked for the respondent, was found to have been unfairly dismissed. In a startling example of the importance of following due process even where very serious allegations are involved, the respondent dismissed the claimant after discovering he had set up sex work websites offering sexually explicit content which were linked to his LinkedIn page which clearly identified him as an employee of the respondent. He had also set up a business development company which boasted an “airy Brighton office with free car parking” – this office was the respondent’s office! The respondent was found to have unfairly dismissed the claimant as it did not follow a fair procedure – there was no final disciplinary hearing, the claimant did not have the opportunity to respond to the allegations and he was not warned of his possible dismissal in advance. The tribunal did, however, reduce his compensation by 100% for contributory fault. This will have been some consolation to the respondent but will not have spared it the costly process of defending the claim through to a full hearing in the tribunal.

Disclaimer: This post is for information purposes only.  Reasonable steps have been taken to provide accurate information, but no responsibility is taken by the author (Hunter Law Ltd) for any consequences arising from its usage. 

This post is not intended to and does not constitute legal advice and you should instruct a solicitor formally should you require this.