Welcome!
The political excitement over recent weeks arising from the MP expense scandal is exemplified for us in the headline, "Scottish MP claimed for 5 pence for plastic bag". That's not to overlook the bigger fish to fry - one (English) MP claimed 67 pence for a packet of four ginger biscuits.
Leaving aside trivial claims, usually, fraudulent expenses claims are considered to be an act of gross misconduct. However, several reported cases illustrate that care does need to be taken by employers before dismissing:
Disciplinary Proceedings - Expenses
The case of Brick Services Limited-v- Thompson involved an employee who was accused of submitting a false expenses claim, following which he was dismissed. He claimed that he had a hotel receptionist alter a receipt so as to include £27 for drinks he had bought personally but which were legitimate business expenses. It was established at the Employment Tribunal that for some time the Company had been putting pressure on the employee to agree to a change to less favourable terms and conditions of employment. The employee steadfastly refused to agree to the change.
The Tribunal concluded that they could not have dismissed him fairly on the grounds that he refused to agree to the new terms but that this was the real motivation for the dismissal. This was evidenced by the fact that the Company leapt at the opportunity to dismiss, without carrying out a full and proper investigation such as would have been expected given the size and resources of the Company. The dismissal was held to be unfair, notwithstanding the false expense claim by the employee.
A case reported earlier this year (East Lancashire Coach Builders -v- Hilton) lends support to this approach. Mr Hilton was dismissed for gross misconduct after having taken his wife on a business trip to Mexico and claiming her fare as expenses, as well as his own (having initially agreed to pay for his wife's fare personally). At this time, three directors of the Company were in the process of negotiating a management buy-out of the business. These negotiations did not include Mr Hilton and, while they didn't want to dismiss him, they did want him to step down as Joint Managing Director. Mr Hilton had a three year rolling contract and the costs of a contractual termination would have been very high indeed. The Employment Appeal Tribunal concluded that the real reason for Mr Hilton's dismissal was not misconduct, but, rather was the management buy-out situation and his relationship with the other Directors.
These cases illustrate that Employment Tribunals are quite prepared to look behind the apparent reasons for dismissals and probe deeper to establish the real reasons. It is therefore important for employers who find themselves in this type of situation to ensure that a thorough investigation is carried out and that they are seen to be acting consistently and in a fair and proper manner when they wish to dismiss.
Complaint of religious discrimination
The recent case of Chondol v Liverpool City Council provides a useful example of the limitations in practice of the Employment Equality (Religion or Belief) Regulations 2003 (which protect employees against discrimination or victimisation on the grounds of their religion or belief). Mr Chondol was a social worker for Liverpool City Council, which involved working with vulnerable adults. He described himself as a committed Christian and believed that he should spread God's word. Whilst carrying out his duties, he gave one of his clients a bible, following which a complaint was made that he was imposing his beliefs on others.
This was in direct breach of the Council's policy against the overt promotion of religious beliefs in the workplace. Further similar incidents occurred and disciplinary action was taken against Mr Chondol, following which he was dismissed. Mr Chondol brought unfair dismissal and religious discrimination claims. He was unsuccessful in both claims.
The Employment Appeal Tribunal said that the focus should be on the distinction between an employee's private beliefs, which should be respected, and any conduct in the workplace which may be inappropriate (albeit that the conduct may result from their belief). In this case, the employee tried to impose his religious views on vulnerable clients using his position, as a result of which the dismissal was considered fair and there was no discrimination.
The message to employers is that disciplinary proceedings in this type of situation should focus on the appropriateness of the employee's conduct, and not his religion or belief.
Redundancy: Last in, first out
The Court of Appeal has just handed down its decision in the Rolls-Royce PLC v Unite case in which it was claimed that by taking length of service into account in their redundancy criteria, Rolls Royce had acted in an age-discriminatory manner against younger workers (who were less likely to have accrued long service). It agreed with the High Court's decision that taking long service into account is discriminatory, but that it can be a proportionate means of achieving the legitimate aim of carrying out redundancies "peaceably". In other words, it could be justified.
Employers need to ensure that they have good reasons for using length of service in redundancy situations and, to be on the safe side, that they only use it as part of any selection criteria and not the sole criteria (such as in the case of 'last in, first out').
Pregnant workers
BERR have produced some useful guidance that we recommend to employers who have a pregnant worker or a worker who has recently given birth. The BERR guide to maternity rights is specifically designed to take into account the Maternity and Parental Leave amendment Regulations which affect all employees whose expected week of childbirth began on or after 5th October 2008. The guide can be accessed here:- Employers guide to pregnancy at work.
Employed or Self Employed?
In the case of Lambden -v-Henley RFC and Others an Employment Tribunal decided that a part-time rugby coach who was found to be under the rugby club's control and received, amongst other benefits, holiday pay, could not be classified as an employee. The coach had been paid as an independent contractor through a limited company but was paid a fixed sum regardless of the number of hours that he actually worked and was provided with a car and credit card by the club. Nevertheless, it was held that he had freely chosen to conduct the relationship on the basis that he was an independent contractor and this could not be consistent with there being an employment relationship. The Employment Appeal Tribunal has upheld the Tribunal's decision.
Importantly, the Employment Tribunal noted that this was not a case involving an employment agency and it was a case where there was a written agreement which accurately reflected the parties' conduct. As such, the written agreement prevailed and the relationship was not one of employment.
New 'Fit Note'
The MED3 self certification form (aka 'sick note') is due to be replaced by what is being referred to as a 'fit note'. It is intended that fit notes will come into operation in the Spring of 2010 and the Government is currently carrying out a 12 week consultation on its design. The idea is that, rather than having a simple 'fit' or 'unfit to work' choice, the new fit note will require a Doctor to provide information about the type of work an employee will be able to carry out, taking into account their current illness / disability.
One example given by the Government is where an employee has a problem with mobility. Suggestions would be expected as to whether the employee could work sitting down rather than standing up. The intention is to attempt to get employees back to work sooner than they would normally return wherever possible. It remains to be seen how this will work in practice but, given the CBI's survey statistics that absences that last over 4 weeks make up around 40% of days lost to absence, any assistance in getting employees with long-term absences back to work is to be encouraged.
And Finally...
In every workplace there are those who avoid the office fridge (and kitchen area generally) like the plague. It turns out that their instincts have been spot-on. In San Jose, California (please don't ask the way) an AT&T office worker caused chaos when cleaning out a fridge full of rotten food. The mixture of disinfectant and mouldy food caused a smell so noxious that fire-fighters had to evacuate the building. 28 employees required treatment for vomiting and nausea and seven were taken to hospital.
Surprisingly, the employee who cleaned the fridge didn't need any treatment at all. Authorities said "she can't smell because of allergies"...
|
