Employment Heads Up - January 2014

30 January 2014

Outstanding appeals against final written warnings
Rooney v Dundee City Council (EAT)

Is it unfair to dismiss an employee who had a previous final written warning for the same misconduct, which was still live, when the appeal against that written warning had not been heard, or withdrawn? 'No' said the Employment Tribunal, and the EAT upheld that decision.

This was despite the fact that had the previous final written warning not been taken into account, Ms Rooney would not have been dismissed, and would instead have just received a final written warning.

The Employment Judge was aware of the outstanding appeal and that the Respondent’s evidence was that they could not speculate as to what the outcome of the appeal might have been, had it been heard. The Employment Judge reviewed the previous case law concerning how an outstanding warning should be dealt with. If the first warning was not issued inappropriately or in bad faith, then it will be valid. The Tribunal has to take into account the warning and any proceedings, such as an internal appeal, which may affect the validity of that warning.

The Employment Judge stated that he would not have acted as the Respondent did. However, it was not for him to substitute his own view, even though he found that the Respondent’s decision had been harsh and many employers might not have dismissed an employee in these circumstances. However, he had to apply the “range of reasonable responses” test and the outcome was within the “range of reasonable responses” open to an employer.

The EAT upheld the Employment Tribunal’s decision on the basis that the Employment Tribunal took into account both the formal written warning and the fact that the warning was subject to an appeal, which had not been determined.

On the basis of this case, it appears that employers can take into account a previous final written warning when dealing with a fresh disciplinary matter concerning the same type of misconduct, even where there is an outstanding appeal against that final written warning, and the employee would not be dismissed if a final written warning was not in place.

However, this is a harsh decision and best practice for employers would still be to hear the outstanding appeal before making a decision in relation to a second disciplinary offence. This is particularly so if the outcome would be the difference between an employee being dismissed, or retaining their employment and being given a final written warning instead.

It seems contrary to the principles of natural justice for an employee to have been deprived of the opportunity to state their case at an appeal hearing in relation to the issuance of the final written warning and for a decision to have been made solely on the basis of a review of the papers in private. On the specific facts of this case, it is likely that the Employment Tribunal and the EAT had sympathy for the employer, because the employee was difficult to manage, as she did not like authority or having to comply with reasonable management instructions.

Employment status is not necessarily “what it says on the tin” – it is defined by the reality of the situation, rather than the contractual terms

In the Employment Appeal Tribunal case of Boss Projects LLP v Bragg the Claimant, a scaffolder, signed an employment contract with the Respondent which, amongst other things, explicitly stated that he was an independent subcontractor, with no right to receive sick pay or holiday pay. On the face of the contractual terms the claimant was not a worker or an employee. However, the claimant claimed he was a worker as defined by Regulation 2(1) of the Working Time Regulations 1998 and he claimed the right to receive holiday pay.

The EAT applied the established case of Autoclenz Ltd v Belcher & Ors and held that employment status is determined by assessing the reality of the circumstances, rather than by accepting what is provided in the contractual terms.

In this case, the EAT assessed the reality of the situation and found that in fact the Claimant was a worker in practice, despite the terms of the written contract. He was therefore awarded the holiday pay to which that status entitled him. In particular, the EAT noted that the Claimant did not bring any equipment with him or take any business risk, he had been personally selected to carry out the work and in reality he could not substitute himself for another, despite the contract stating that he could do so.

This case serves as a useful reminder that written contractual terms, no matter how watertight, do not provide a complete or reliable definition of the nature of the relationship between the parties to the contract. An employer cannot rely on the contractual terms alone for the purposes of establishing employment status. Tribunals will look behind the written contractual terms to investigate the facts and will aim to make a decision as to employment status based on the reality of the situation.

'Reasonable' requests to be accompanied by a companion at disciplinary or grievance hearing

Under current legislation, a worker is entitled to be accompanied to a disciplinary or grievance hearing by a “companion” provided that the worker in question has:

  1. reasonably requested to be so accompanied; and
  2. their chosen “companion” falls within one of the three categories specified in the Employment Relations Act 1999 (as amended by the Employment Relations Act 2004), namely s/he:
  • is employed by a trade union of which s/he is an official;
  • is an official of a trade union whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a companion at disciplinary or grievance hearings; or
  • is a colleague of the worker concerned.

Whilst the definition of a “companion” is clear, what amounts to a “reasonable” request to be accompanied is more difficult to determine.

The ACAS Code currently states that:

“…[w]hat is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing, nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site”.

The question of reasonableness has recently been considered by the Employment Appeal Tribunal (EAT) in Toal & another v GB Oils Limited UKEAT/0569/12 and Roberts v GB Oils Limited UKEAT 0177/13. In these cases, the EAT held that an employer cannot take into account the identity, nature or qualities of the worker’s chosen companion when assessing the reasonableness of that worker’s request to be accompanied. Instead, it is the reasonableness of the request itself which must be considered.

Practically, this means that if a worker wishes to be accompanied by a colleague who is a notorious troublemaker, for example, the employer may not be able to prevent the said troublemaker from attending the relevant disciplinary or grievance hearing. Yet this seems to be wholly inconsistent with the wording of the ACAS Code as set out above and appears to overlook the express need, as stated in the current legislation, for any request to be “reasonably” made.

In the GB Oil cases, the EAT suggested that the remedy for breach of a worker’s right to be accompanied by a companion of their choice should be limited where the Tribunal is satisfied that the worker has not suffered any loss or detriment. In such cases, the EAT concluded that any award made to the worker concerned should be “of nominal compensation only, either in the traditional sum now replacing 40 shillings—£2—or in some other small sum of that order”.

So, what to do? If an employer is particularly concerned about a problem companion’s presence at a disciplinary or grievance hearing, they could refuse to allow that companion to attend and ask the worker to elect another companion. The employer could then accommodate a (hopefully more suitable) alternative companion of the worker’s choosing and continue the disciplinary or grievance hearing on this basis. In such cases, the employer will have side-stepped the issue of having the problem companion present at the relevant hearing. Further, if the worker chooses another companion to accompany him/her, they will waive the employer’s breach. In any event, unless the worker is able to argue that their initial choice of companion had specialist skills or knowledge which were critical for their role as a “companion” at the hearing, it is highly unlikely that the worker will be able to prove that s/he has suffered any loss or detriment by not having that individual present—they will still have been accompanied to the hearing, just not by their first choice of companion.

If a worker refuses to elect an alternative companion, one option for an employer will be to press ahead with the hearing anyway. If the worker is capable of stating their case coherently themselves, then it is difficult to see what loss or detriment they will suffer by not being accompanied (although employers: expect arguments to be raised as to the integrity of the process, non-compliance with the ACAS Code etc.). Of the two evils (problem companion versus nominal compensation being awarded), employers will not be too concerned about the latter. Nonetheless, in the event of an employer refusing to allow a chosen companion to attend any hearing, it is important to recognise that the worker may issue proceedings for breach of the implied term of trust and confidence, constituting constructive unfair dismissal, in order to achieve greater compensation.

Ultimately, it is a matter of assessing where the balance of risk lies, but it is worth noting that ACAS intends to publish new guidance in light of these cases shortly, so watch this space.

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