Gordons Employment Update - 10th October 2018

Wednesday 10th October 2018

Unfair Dismissal: Who ended the contract of employment?

The Employment Appeal Tribunal (EAT), in East Kent Hospitals University NHS Foundation Trust v Levy, found that a letter from an employee giving one month’s notice, did not amount to her resignation, and that she was in fact dismissed by her employer.

Ms Levy worked in the Records department, and received a conditional offer of employment from another department within the same hospital. The next day she handed in a letter stating ‘please accept one month’s notice from the above date’. This was accepted by her manager. The conditional offer of employment was subsequently withdrawn, and when Ms Levy attempted to rescind her notice, her manager refused. Ms Levy claimed unfair dismissal.

The EAT agreed with the earlier Tribunal findings that there was ambiguity in both Ms Levy’s letter of notice, and the circumstances surrounding it. It said that it was not clear whether she had given notice to end: (a) her role in the Records department, or (b) her relationship with the employer. The question was therefore how the statement would be understood by a reasonable recipient. Applying this test, the EAT held that given the circumstances of the case, Ms Levy had not resigned.

Comment

This case is quite fact specific, and generally speaking notice will be given in an unambiguous statement. An employer will then be able to rely on the principle that its employees cannot unilaterally withdraw notice once given. However, if there is any doubt the employer should seek to clarify the employee’s intention.

Employers should also remain vigilant where the employee ‘resigns’ in the heat of the moment or, as in the present case, where ‘notice’ could have more than one meaning. In particular, employers should look for clarity over the reasons for the resignation, the notice being provided, and when the employment will end.

As Clear As Day: Shifts can constitute night work

Under the Pregnant Workers Directive (PWD) an employer may be obliged to alter the working conditions or hours of work for a worker who is pregnant or breastfeeding. It may also be required to provide her with alternative work, or suspend her from work (on full pay) in order to avoid risks that she could be exposed to as a result of work being done in the workplace.

In Gonzalez Castro v Mutua Umivale, ProsegurEspana SL, Instituto Nacional de la Seguridad Social, the claimant, a Spanish security guard, worked a variable pattern of 8 hour shifts. These included various shifts between midnight and 8am. In 2014 she gave birth to her son, and subsequently breast-fed him. Her employer deemed that her duties and working conditions did not affect breast-feeding and so refused to alter her job role or suspend her.

The case found itself before the European Court of Justice (ECJ) at the appellate stage from the Spanish courts. The ECJ ruled that the PWD should be construed alongside the provisions of The Working Time Directive (WTD), which applies, in particular, to certain aspects of night work, shift work and patterns of work.  The ECJ found that a worker who performed shift work, only part of which is at night, still comes within the definition of ‘night work’ for the purposes of the WTD and PWD, and so should be afforded the above protections.

Comment

The ECJ did not make clear whether it was the fact that the claimant was classed as a ‘night worker’ under the WTD (the claimant satisfied the requirement to work at least 3 hours between midnight and 5am), or whether it was making a more general point that any amount of time spent working during ‘night time’ would qualify for protection.

However, it is likely that employers will have to suspend from work relevant workers (including those for whom only part of their shift falls at night time) if they produce a medical certificate, unless the employer is able to offer a suitable alternative employment.

Failure to adjourn a disciplinary or grievance hearing may render a dismissal unfair

Any worker required to attend a disciplinary or grievance hearing may be accompanied by a companion, being a colleague or trade union representative. Under the Employment Relations Act 1999, if the worker requests a postponement to accommodate a companion who is unable to attend then this must be granted, provided the alternative date is: (a) reasonable, and (b) within five working days of the date originally proposed by the employer.

In Talon Engineering Limited v Smith the claimant requested a postponement from 29 September 2016 to a date after 9 October 2016 (i.e. more than 5 five working days) for this reason. With disciplinary proceedings already having been afoot for some 2 months, Talon refused. In turn, Ms Smith declined to attend the hearing without her companion and in her absence was dismissed on 30 September 2016. Ms Smith appealed, but the dismissal was upheld.

The EAT recently found that while there may have been a potentially fair reason for Ms Smith’s dismissal, the decision to dismiss was nonetheless procedurally unfair. The above right to accompaniment therefore needs be considered separately from the provisions for unfair dismissal.

Comment

During disciplinary proceedings an employee may try to delay in order to extend any period of suspension for as long as possible, particularly if they are still being paid. Following the same commercial rationale, employers are likely to try to progress matters. Indeed, employers are encouraged to deal with a disciplinary process promptly and without unreasonable delay. Failure to do so is more likely to render a subsequent dismissal unfair.

This decision has the potential to place employers firmly between a rock and a hard place in having to decide between either slowing proceedings at the request of its employee, or pressing on and risk facing a subsequent claim. Of course this should not be overstated, as it would be a brave claimant who deliberately missed their disciplinary hearing and placed all their eggs in the basket of procedurally unfair dismissal.

While Ms Smith appealed, the EAT found that the approach of Talon did not amount to a rehearing. It would be worth employers bearing in mind that it is possible for procedural defects in an initial disciplinary process to be remedied by an appeal that is sufficiently comprehensive.

Employers should also note that the requirement to act reasonably when asked to postpone will apply even where the requested postponement goes beyond the statutory five working day extension. How much further beyond would appear to now be a question for the Tribunal.

Tribunal Statistics: Claims Rise, Awards Fall

The Ministry of Justice has published its annual employment tribunal statistics for 2017/18. Since the abolition of tribunal fees in July 2017 there has unsurprisingly been a sharp increase in the number of claims making their way before a tribunal.

Single claim receipts (e.g. unfair dismissal, sex discrimination) brought in the quarter April-June 2018 rose 165% against the same period last year. Across the year 1 April 2017 to 31 March 2018 a total of 109,685 employment tribunal applications were received. The figure in 2017 was 88,461, representing an increase of 24%.

Interestingly, the number of claims awarded compensation by the tribunals fell almost 10% from 745 to 672 with the average value of awards also falling. In what we trust is unrelated news, the percentage of unrepresented claimants was down to 74% in 2017/18, from 86% in 2016/17.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.