Summer Annual Update

Welcome to the summer annual of The Update – something to read on the beach or by the pool while sipping drinks that, ordinarily, you wouldn’t touch with a barge pole (I’m thinking about the Campari and soda I had a few weeks ago but let us never speak of that again).

The highlight of the summer so far has been the Commonwealth Games and, more particularly, the dancing Tunnock’s Tea Cakes in the opening ceremony (of which I’m a big fan – dancing or not). I’m delighted to say there was an employment law story hidden in amongst the prancing confectionary.

One of the dancing tea cakes, a nursery worker, was spotted on TV cheerfully going about her routine by her bosses. Unfortunately, according to the Daily Record, she had been signed off sick by her doctor and referred to hospital for tonsillitis for a period that coincidentally coincided with rehearsals and the show itself. This heroic display of dancing which paid scant regard to a serious throat condition (or dignity) has not been appreciated by her employers. The Record say the employers were “stunned” to see her “bold as brass” on TV while on paid sick leave and will be “hauling her over the coals” (tabloid speak for disciplinary action). At least her friends on Facebook appreciated her efforts saying she was ‘shining bright like the star that you are’. A little too brightly as it turned out.

In other news:

Contracts and Uneven ‘Custom and Practice’

From 1996 to 2002, Peacock Stores made redundancy payments which were in excess of the statutory entitlement, in that it neither capped the amount of a week’s pay nor the number of year’s service to be applied. However, from 2002 to 2006 the approach taken was more sporadic and there was no certainty that an enhanced redundancy payment would always be made.

Nevertheless, the Tribunal was satisfied that when an employee (Mr Peregrine) was made redundant he had an expectation that the enhanced scheme would apply to him. This was because it was a consistently applied and well understood policy which Mr Peregrine was well aware of even though it wasn’t written down. The Employment Appeal Tribunal agreed on the basis that enhanced redundancy payments had been followed without exception for a considerable period of time and by virtue of custom and practice established a contractual term.

Comment: Employers should be careful not to pay enhanced redundancy terms using the same calculation each time. Using settlement agreements will assist (being sure to include strict confidentiality provisions).

Previous Warnings in Unfair Dismissal Claims

The case of Rooney v Dundee Council is useful in several ways for employers. The Employment Appeal Tribunal (EAT) decided that it can be a reasonable for an employer to dismiss an employee after taking into account a final written warning while an appeal against it remained outstanding.

The employee was given a final written warning (to stay on file for 15 months) following her failure to follow an express instruction from a senior employee. She appealed. However, the appeal hearing did not take place due to severe weather, and she never asked for it to be re-arranged. Over a year later (but while the final warning was still live) there were allegations of inappropriate behaviour made against the employee. These were upheld which. On their own they would have only warranted a final written warning. However, the final written warning was taken into account and she was dismissed.

The Tribunal and EAT held that the dismissal was within the range of reasonable decisions that an employer might take on the following basis:
the Council had taken into account that the final written warning was outstanding; and
the Council had taken into account that the appeal against it had not been heard and held a private review of the basis on which the warning had been issued to satisfy itself as to its appropriateness.

In addition the guidance in the case of Wincanton Group v Stone & Gregory says that a final written warning implies that any further misconduct will usually be met with dismissal. (Wincanton is a useful case because the dismissal was deemed fair where the employer had taken into account a previous warning which was not in respect of similar conduct and was the subject of an on-going dispute).

Disciplinary Sanctions on Appeal

In the case of McMillan v Airedale NHS Foundation Trust the Court of Appeal has held that where a contractual disciplinary procedure is silent on the issue, it could not be interpreted to give the employer power to increase a sanction from written warning to dismissal on appeal.

The employee was subjected to disciplinary proceedings under the Trust’s contractual procedure and was given a final written warning. She appealed the decision. The appeal panel upheld the original decision and proposed to reconvene to reconsider the appropriate sanction. The employee brought proceedings in the High Court seeking to prevent the Trust from reconsidering the appropriate sanction and a permanent injunction was issued restraining the Trust from reconsidering the sanction. The Trust failed in its appeal to the Court of Appeal.

Comment: Perhaps what was most surprising about this case is that Lord Justice Underhill noted that there is nothing wrong in principle with an employer reserving to itself the right to increase a disciplinary sanction on appeal but that right must be expressly provided for in the disciplinary policy. On the face of it employers could have a green light to write this right into disciplinary procedures. However, the Acas Guide to the Code (referred to by employment tribunals) specifically states that an appeal should not result in an increased sanction. Our advice remains that sanctions should not be increased on appeal if an unfair dismissal is to be avoided.

To Conclude …

…The Wales Evening Post recently carried an unintentionally amusing article about the problems with “enormously regular” mistranslation into Welsh of road signs. The sign that caused most concern was one meant to be directing: ‘Cyclists Dismount’. But there is no word for ‘dismount’ in Welsh. Apparently the closest you can get to a translation is along the lines of ‘fall-off area for cyclists’. However, a spokesman for the Welsh language campaign group said “we don’t often get [translations] quite as insane as what the Council has come up with for this one”, which was: Bladder disease has returned…