Unfair dismissal 2018 update

Siobhan Bishop: Hello and welcome to this podcast where we are discussing some of latest developments in unfair dismissal. I am Siobhan Bishop a Principal Associate in the Employment and Equalities team here at Gowling WLG and I am joined here today by James Hall an Associate in the team. In this podcast we are focusing on some of the recent cases on unfair dismissal and what they mean in practice.

So James, just going back a stage to the point before dismissal where there is an allegation of misconduct the employer may want to suspend that employee in order to investigate the matter. However, the employer should not just suspend the employee as a knee jerk reaction and should consider whether that suspension is reasonable.

James Hall: Yes, that is right. There is a recent case of Agoreyo v Lambeth which was a High Court case which involved an experienced primary school teacher. There were a number of incidents that took place where Miss Agoreyo was alleged to have used unreasonable force towards two children in her class. Essentially she was suspended following a third allegation and the letter setting out her suspension stated, "this suspension is a neutral action and not a disciplinary sanction, the purpose of the suspension is to allow the investigation to be conducted fairly" and I am sure that is the sort of thing that many of us will have seen in suspension letters.

However, the High Court found that suspension is not a neutral act and that essentially it changes the status quo from 'work' to 'no work' and casts a question over the employee as to their competence. The Court held that alternatives to suspension should be considered and that it should not be a knee jerk reaction. In particular Miss Agoreyo's previous allegations were not taken into account and there was miscommunication between the executive head and the head teacher at the school when considering whether to suspend an employee. Even in the wake of alleged misconduct even where it is very serious, it should not be a knee jerk reaction.

Any alternatives to suspension should always be considered and where that is done a record should be kept of that consideration. It is also best practice to include a statement in the suspension letter that explains why the suspension is taking place and simply stating that it is a neutral act will not be a substitute.

Siobhan: So looking at the investigation itself, it is obviously important that there is a proper and reasonable investigation and there is an interesting case recently relating to social media posts which is an area where employees seem to forget that they tend to incriminate themselves. So, for example, employees have been known to post pictures of themselves at a sporting event when they have allegedly been off work sick or, as in this case, there was an old social media post which indicated that the employee had been drinking on shift.

James: Yes, that is exactly what happened in the case of British Waterways Board v Smith and this is a case in the Employment Appeal Tribunal.

Mr Smith was employed as a manual worker on a rota where he was required to be on standby for one week in every five and while on standby he was not allowed to consume alcohol. Copies of Mr Smith's historic facebook page were provided as evidence during the investigation which clearly showed that he had been drinking while on standby. The EAT held that there is not special case relating to social media.

This was also a case where the Tribunal was found to have submitted its own views for that of the employer. It had made its own finding of facts about the existence of risk and it had substituted its own views in relation to problems with employees drinking when on standby and the lack of risk to the public. The tribunal should have considered the employers views about what had happened and asked itself whether this was within the range of reasonable responses.

Siobhan: Okay so there has been another recent case looking at what the employer can take into account when there is an allegation of gross misconduct, which is misconduct which is so serious that it justifies dismissal. So the question was is it just this incident which matters for gross misconduct or can the employer take into account details of previous similar incidents?

James: In the case of NHS 24 v Miss Pillar, the EAT held that there is no rule against a thorough investigation or indeed whether one can be too thorough. In this case Miss Pillar had previously made two serious errors when triaging patients and she made a third one which led to her dismissal. She claimed that it was unfair for the previous two incidents to be included in her investigation report as they had not led to disciplinary action. However, the EAT held that these could be included and this was not a case where there had not been an opportunity for material to be placed before the decision maker or any allegations that was bias. The decision to dismiss was also within the band of reasonable responses.

Siobhan: Ok, so that is the point we touched on earlier, because when we consider whether dismissal is fair one of the most well-known tests is whether the dismissal was within this band of reasonable responses, the so called 'Burchell test'. However there has been a recent case where this test has been questioned.

James: Yes that is right in the case of Reilly v Sandwell in the Supreme Court. This case involved a head teacher who had failed to notify the school of her close personal relationship with a sex offender and she was under a contractual duty to do so. It was reasonable for the panel to have concluded that Ms Reilly's non-disclosure of her relationship amounted to a breach of duty and merited her dismissal and her refusal to accept that she had been in breach of duty suggested a continuing lack of insight.

However, as you mentioned Siobhan, there were some interesting comments from Supreme Court Judge Lady Hale on the Burchell test. She questioned whether the test is actually correct? However Lady Hale expressed no view as to whether the law is in fact correct and she did touch on the thousands of cases that have been decided using the test over the last 40 years and for now the Burchell test stands but we may well see a challenge to it in the near future.

Siobhan: Great, thank you James for that update and some very good points to remember from the initial stages of suspension right through the investigation and ultimately to dismissal and particularly interesting those comments about what the correct test is in terms of whether dismissal is fair but, for now, the law is clear and thank you very much for that.

If you have any questions on these issues please do feel free to contact us.

James: Thank you.