Welcome
This edition of the Bulletin brings good news and bad news for employers. First the good news; a CBI survey has revealed that last year saw the number of days of sickness absence taken by workers fall to the lowest on record (the CBI survey began in 1987). The bad news is that ‘sickies’, or bogus absences, show little sign of abating and the CBI estimate that they cost the country £2.5 billion per year. This is concerning at a time when ‘experts' have been busy proclaiming that the UK will experience an "ice cream summer" this year because, statistically, hot summers tend to produce an increase in staff sickness absence.
That said, last year experts predicted a ‘barbeque summer' (is there a subtle difference?) and, if this year’s forecast is as accurate, there’s probably not too much to be concerned about as far as the weather is concerned. Nevertheless, with the World Cup having now started, ‘event sickness’ could be a problem so let’s start by taking a look at what employers can do to combat the problem:-
World cup ‘fever’
High profile World Cup football matches, many of which will be played at 3pm during week days, is causing significant problems for some employers (both on the day of the matches and the following mornings!). Employers may consider some positive approaches backed up by the enforcement of disciplinary policies.
Working with employees to find a happy medium (where practical to do so) has been successful in the past. For example, making ‘important’ matches available for employees to watch at work, allowing flexible working so that lost time is made up and introducing the possibility of taking annual leave on short notice (cover permitting) can have the effect of keeping employees happy while not losing working time to unauthorised absence.
It could be appropriate to remind employees of the sickness absence policy and reporting procedures. They should be told that absence will be carefully monitored during the competition, particularly the days of ‘big games’ (and the day after) and that any unauthorised absence is a serious misconduct issue which could lead to disciplinary action.
A further potential problem is the issue of misconduct during the competition. Past competitions have seen enthusiastic patriotism and support in the workplace tip over into something nastier. Staff should be reminded that they are required to conduct themselves in a reasonable and professional manner at all times and that abusive behaviour (including racist remarks) will be dealt with firmly in accordance with harassment, bullying and equal opportunities policies.
The Government provides more detail of its proposals
Vince Cable, the Governments Business Secretary, has announced the first phase of plans to deal with, what he describes as, “the deluge of new regulations that has been choking off enterprise for too long”. A ‘one-in, one-out’ policy when it comes to new regulations will aim to ensure that new regulation will only be introduced when existing regulation can be reduced at the same time. He also announced that a “Challenge Group” will be created to design alternative approaches to replace over-regulation and “tackle the UK’s social and environmental challenges”.
Both the Federation of Small Businesses and the British Chambers of Commerce have welcomed the new proposals, the latter claiming that new rules set to be introduced over the next four years would have cost businesses more than £11bn.
Failure to follow disciplinary procedures can be breach of contract
The Court of Appeal judgment on a preliminary point in the case of Edwards v Chesterfield Royal Hospital NHS could have interesting implications in that it would appear to allow an employee to sue an employer for breach of contract and future losses if an employer causes an unfair dismissal by failing to follow a contractual procedure. In this case Mr Edwards, a consultant surgeon working for the NHS Trust, was dismissed for gross professional and personal misconduct following a disciplinary hearing. He argued that the Trust conducted the disciplinary hearing in serious breach of its contractual procedures, which caused him to be dismissed and in turn prevented him from finding permanent NHS employment. He claimed this caused him a career-long loss of £4 million. The Court of Appeal was asked to decide on the preliminary point of whether Mr Edwards was restricted to a breach of contract claim for his 3 month notice period entitlement, or if he could claim for all his losses. The Court has decided that he is entitled to pursue damages in the normal way for the breach of contract, without limitations.
The important point for employers to note is that if an employer causes an unfair dismissal by failing to follow a contractual procedure, it could be that potentially there is nothing to stop the employee from suing for damages for future losses based upon that breach. There would be no cap to the compensation and it would be a way to circumvent the statutory unfair dismissal cap.
Unfair dismissal - seriousness of the consequences for the employee
In the case of Salford Royal NHS Foundation Trust v Roldan, Ms Roldan, a Filippino nurse, was recruited from Singapore and employed from July 2003 until she was summarily dismissed in October 2007 for mistreating a patient. The Court of Appeal ruled that in deciding whether a dismissal for reasons of alleged misconduct was fair or unfair, one of the factors to be taken into account is whether the employer carried out as much investigation into the matter as was reasonable "in all the circumstances of the case". "All the circumstances" included the fact that there would be a real risk that her career would be blighted by the dismissal if it was found to have been fair. A finding that the dismissal was fair would certainly lead to her deportation and destroy her opportunity for building a career in this country. In an unfair dismissal misconduct case, an employment tribunal should take into account the seriousness of the consequences for the employee of a finding of unfair dismissal in deciding whether the employer's investigation into the alleged misconduct was fair and adequate.
Intention to give notice does not amount to dismissal
In the case of Mitie Security (London) Ltd v Ibrahim the Employment Appeal Tribunal (EAT) overturned an employment tribunal decision which had found that communicating an intention to dismiss in the future, combined with subsequent events, was effective notice of dismissal. Mr Ibrahim, a security guard, was removed from a customer’s site following complaints. The employer wrote to Mr Ibrahim informing him that if an alternative position could not be found in four weeks “the company could have no alternative other than to issue you notice and terminate your employment”. No alternative employment was found, Mitie Security stopped paying Mr Ibrahim after four weeks and he didn’t return to work. The EAT held that while the employer’s letter made it clear that notice might be given in the future, this was not the same as actually giving notice. In short, notice to terminate employment must state the date of termination or contain material from which the date can be positively ascertained.
Dismissal – range of reasonable responses
In the case of Enable Care & Support Home Ltd v PearsonI, Mrs Pearson, who had worked for the Company as a Human Resources Adviser, brought a claim of unfair dismissal after she was summarily dismissed. The Company believed she had sided with a line manager and had accused her of changing the line manager’s holiday record; passing on confidential information concerning the line manager’s grievance; confirming the line manager’s attendance on training when in fact she was suspended; and passing on confidential information regarding the identity of the employer’s solicitor.
The Employment Tribunal concluded that the Company had carried out a fair dismissal procedure in that it believed Mrs Pearson to be guilty of misconduct, it had reasonable grounds for sustaining that belief and in the circumstances it had carried out a reasonable investigation. But it also concluded that the Company’s decision to dismiss did not fall within the range of reasonable responses and that a reasonable employer would have viewed her ‘offences’ as relatively minor, and given her a final written warning instead. It therefore found the dismissal was unfair.
The Employment Appeal Tribunal found that “if across the spectrum of reasonable employer's sanctions some would dismiss and some would impose a sanction short of dismissal, then dismissal falls within the band and is fair. The dismissal will only be unfair if dismissal is a sanction outside that spectrum; that no reasonable employer would have dismissed the employee for the employer's reason”. The Employment Tribunal had fallen into the trap of substituting its own judgment for that of the employer after having separated out the accusations and effectively "watered them down".
And Finally…
It appears that ‘sickies’, or ‘event absence’ is not a uniquely English problem. During the European Championships in Portugal in 2004 tens of thousands of Dutch workers phoned in sick and there was a 20% rise in sickness levels on the days when Holland played. As a consequence of this a Dutch insurance firm is offering employers insurance against employee ‘World Cup Sickness'. It says that during the World Cup it will waive its usual two week absence proviso and will pay out even where employees are absent for only one day. It will pay out regardless of the excuse given and says “obviously nobody will phone in and say they’re ill because they want to watch the match or because they drank too much”….
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