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Employment Cases Review
Rebecca Mansell reviews recent Employment Cases.
Mr CW Parsons v Burworth Estates (a firm)
UKEAT/0547/08
The Claimant was employed by the Respondent as a caretaker for a block of flats. He had written a grievance letter complaining about various matters and a subsequent meeting was held which failed to resolve the grievances. The Respondent consequently sent a letter setting out their responses to the grievances and they also served a statutory notice of retirement on the Claimant. A number of months later the Claimant sent the Respondent a letter making reference to further grievances. Shortly thereafter the Claimant resigned without specifying his reasons. In his claim, the Claimant particularised some 14 incidents which he relied on to support his assertion that the Respondent had repudiated his contract of employment. The Respondent alleged that six of the incidents had not been the subject of written grievances for the purposes of section 32 of the Employment Act 2002. The Tribunal held that of the 14 incidents alleged, only one had been the subject of a prior complaint. In citing Cyprus Airways Ltd v Lambrou Unreported May 1, 2007 EAT, the Tribunal found that it was not possible to sever the one incident from the other 13, for which it found no grievance had been lodged, meaning that it had no jurisdiction to hear the claim.
The EAT stated that there was no rule that every individual incident relied upon had to have been the subject of a previous grievance, reference was made to Shergold v Fieldway Medical Centre (2006) ICR 304 EAT and Step In Time Ltd v Fox Unreported November 3, 2008 EAT (SC). What was of importance was that the conduct alleged had been raised as a compliant against the Respondent. Further, there was no need to raise a separate grievance in relation to the grievance meeting as this would only add an unnecessary layer of technicality to the 2002 Act procedure. In relation to the retirement notice the EAT held that looking at this in context, it did not require a separate grievance complaint as the Claimant relied on the service of the notice being on the same day as the response as a further example of the Respondent’s unreasonable conduct. The fact that an incident comes after the grievance statement does not prevent reliance on it provided that it falls within the terms of the general complaint about the employer’s behaviour made in, or necessarily implied from, the prior complaint. By way of guidance to the Cyrus Airways decision the EAT stated that it did not enunciate any general principle about "severance". Where a Claimant relied on a number of quite distinct breaches, but failed to lodge a grievance in respect of some of them, there was no reason in principle why he could not pursue his claim insofar as it was based on the remainder. There would be a difficulty if he was unable to establish that the breaches on which he was entitled to rely were those in response to which he had resigned.
Compass Group UK and Ireland Ltd (T/A Eurest) v Miss N Okoro
UKEAT/0055/08
The Claimant was employed by the Respondent as an assistant catering manager. She stated that she had a good working relationship with her line manager and they would share jokes with each other. The Claimant took a corporate gift given to the Respondent which her line manger had previously prohibited her from doing. The Claimant was later questioned about the matter and stated she knew who had taken the item and where it was. Some two weeks or so later, the Claimant was informed that there was to be a formal investigation into the matter, at which stage she admitted that she had taken the gift as a joke. The Claimant returned the item in the condition it was when taken. The Claimant was suspended on full pay and invited to a disciplinary meeting. The invitation letter stated that the reasons for the meeting included the fact that the Claimant had withheld information about the whereabouts of the gift and that she had removed company property without permission. At the disciplinary meeting, the Claimant explained that the nature of her relationship with her line manager included jokes and pranks. This matter was only considered cursorily. She was summarily dismissed on the grounds that her removal of the gift amounted to gross misconduct. The Claimant was informed of her right to appeal, but did not do so.
The tribunal held that the Claimant's dismissal was automatically unfair as she was not given the basis for the charges against her prior to the disciplinary meeting, contrary to the requirements of the second step of the standard disciplinary and dismissal procedure under Schedule 2 Employment Act 2002. It also held that the Claimant's dismissal was substantively unfair as the Respondent did not look into the context in which the gift was taken, by considering the relationship between the Claimant and her line manager and therefore it failed to properly investigate the matter, contrary to section 98(4) Employment Rights Act 1996. She was awarded compensation, but the tribunal made three adjustments; a 15% reduction under section 31(3) of the 2002 Act for contributory fault; a 20% uplift also under section 31(3) for the Respondent's failure to comply with the statutory dismissal and disciplinary procedure and a 10% reduction under section 31(2) for the Claimant's failure to appeal.
The EAT concluded that on the facts of the case the dismissal was not automatically unfair as the Claimant had been informed of the basis of the charges against her, those being that she knew she had taken company property without authorisation and had withheld information about the issue. In applying the case of Alexander v Bridgen Enterprises Ltd (2006) ICR 1277 EAT the EAT noted that the statutory procedure could be fulfilled at any time prior to the disciplinary meeting and did not need to be fulfilled in writing. The EAT did find that the dismissal was substantially unfair. As a general rule an employer would be expected to carry out a reasonable investigation prior to dismissing an employee for gross misconduct, British Home Stores Ltd v Burchell (1980) ICR 303 EAT. There was no rule that where an employee had made admissions of behaviour that could be treated as gross misconduct, an investigation was unnecessary. It was also well established that the labelling of a particular disciplinary breach as gross misconduct did not necessarily justify dismissal for the purpose of section 98(4) Employment Rights Act 1996, the EAT referred to the cases of Ladbroke Racing Ltd v Arnott 1981 SC 159 IH (2 Div), John Lewis Plc v Coyne (2001) IRLR 139 EAT and Compass Group UK & Ireland Ltd (t/a ESS Support Services Worldwide) v Baldwin Unreported January 5, 2006 EAT. The EAT acknowledged that there would be cases where gross misconduct had been admitted, there may be no need for further investigation. However, the EAT warned that there would be cases that would require a reasonable employer to investigate further in order to address the seriousness of the conduct or any mitigating circumstances.
In relation to the three adjustments made by the Tribunal the EAT held that the percentage finding of contributory fault was a matter of fact for the tribunal, Foster v Somerset CC (2004) EWCA Civ 222 and Hollier v Plysu (1983) IRLR 260 CA (Civ Div) applied. Whilst it was noted that the element of contributory fault was relatively low, it was not perverse. In light of the EAT’s finding that the dismissal was not automatically unfair, the increase in the award under section 31(3) of the 2002 Act had to be set aside.
Mrs BK Carl v University of Sheffield
UKEAT/0261/08
In this case the EAT provided some guidance on the issues arising out of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The Claimant was a part-time teacher and brought a claim on the basis that she was treated less favourably than a named full time teacher in that the latter was paid for preparation time, whereas she was not. The Claimant’s alternative comparator was a hypothetical "generic teacher" on a full-time contract. The Tribunal held that there was no less favourable treatment when the Claimant compared herself to a hypothetical comparator. It also found that, in relation to training, any difference in treatment was not on the grounds of the Claimant's part-time status. The Tribunal had regard to Gibson v Scottish Ambulance Service Unreported December 16, 2004 EAT (SC) in that the expression "the treatment is on the ground that the worker is a part-time worker" in regulation 5(2)(a) of the Regulations meant the less favourable treatment had to be solely on that ground. The Claimant averred that Directive 97/81 required a hypothetical comparator to be available to a part-time worker complainant. She argued that, in any event, the Tribunal had been wrong to find that the named full time teacher was not a true comparator for the purposes of the Regulations. She further submitted that by relying on the decision in Gibson, the Tribunal had misdirected itself in law on the issue of causation.
The EAT held that a hypothetical comparator was not available to a Claimant bringing a complaint under these Regulations and considered the cases of Wippel v Peek & Cloppenburg GmbH & Co KG (C-313/02) (2004) ECR I-9483 ECJ and Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) UKHL 11, (2003) 2 All ER 26. Contrasting section 1(1)(a) Race Relations Act 1976 and section 1(1)(a) Sex Discrimination Act 1975, the definition of a comparable full-time worker in regulation 2(4) did not include the "or would treat" formula. In a claim brought under the Equal Pay Act 1970, the comparison must be with an actual male comparator, not a hypothetical male. The language of regulation 2(4) shared similarities with the language of section 1(6) of the 1970 Act. Regulation 3(2) and regulation 4(2) provided for a hypothetical comparator, but only in those two exceptional and specific categories. The EAT further clarified that for the purposes of regulation 5(2)(a) it would be enough if the Claimant's part-time worker status was an effective and predominant cause, albeit not the sole cause, of the less favourable treatment complained of, O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School (1997) ICR 33 EAT and Sharma v Manchester City Council (2008) ICR 623 EAT applied. The cases of Gibson and McMenemy v Capita Business Services Ltd 2007 SC 492 IH (Ex Div) were doubted. In order to succeed, the Claimant had to show that she had been less favourably treated than an actual full-time comparator on the ground that, but not solely because, she was a part-time worker before the Respondent was required to show that the treatment was objectively justified.
In respect of the Tribunal’s findings, it was held that the Tribunal had been entitled to take into account particular facts of the case such as the differences in what the Claimant and full time teacher taught, how they taught and their job specifications. The differences in their respective skills, qualifications and educational achievements were properly taken into account in accordance with regulation 2(4)(a)(ii). The Tribunal’s conclusion that there was no true comparison between them was evidently permissible and so the Claimant's claim failed.
Rebecca Mansell
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