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Dear Peter,
Since 2004 employers wishing to dismiss an employee have had to follow detailed procedures that are laid down in law. Failure to follow the procedures to the letter results in tribunals finding dismissals to be "automatically unfair" when claims are brought. The procedures are written in such a way as to appear to be related to cases of misconduct only but they also have to be followed in the case of most other types of dismissal, including redundancy dismissals and dismissals of employees on the grounds of ill-health. As you will see below, this has led to a number of cases where employers, who have had perfectly fair reasons for dismissing someone, have got the steps wrong and suffered the consequences. The good news is that a recent review has concluded that the statutory procedures should be removed; the bad news is that this is unlikely to happen within the next year or so!
Feel free to contact me if would like any more information about any of these news items.
Why not forward this email to any of your contacts who might find it of benefit?
Regards
Peter Etherington  Tel: 01664 430373
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| How do you make someone redundant fairly? |
| Failure to follow statutory procedure = unfair dismissal |
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A recent Employment Appeal Tribunal (EAT) case has made clear that an employer needs to follow the very inflexible statutory dismissal procedures in the case of a redundancy dismissal. In Davies v Farnborough College of Technology Mr Davies was selected from a pool of three to be made redundant. He had been notified in advance of the need for redundancies, had been invited by letter to a meeting to discuss it and had been told in that letter the selection criteria that were to be applied. At the meeting he was informed that he had been selected because he had the lowest score when the selection criteria had been applied. There was an internal appeal, at which Mr Davies challenged the scoring, but after consideration of the arguments put forward his dismissal was confirmed.
The reason the dismissal was found to be unfair is that the Tribunal believed that Mr Davies had not been given sufficient information in advance of the first meeting to prepare his response. They reached that decision because Mr Davies had been informed of the selection criteria in advance but not his scores. Even though the internal appeal meeting had considered this aspect, the EAT concluded that the damage had already been done in terms of the application of the statutory procedures. A case of procedure getting in the way of common-sense I think! |
| When will maternity rules change yet again? |
| Statutory Maternity Pay increase delayed |
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Statutory Maternity Pay was increased from 26 weeks to 39 weeks in April this year. This was supposed to be the first step towards ultimately increasing it to 52 weeks, to correspond with Statutory Maternity Leave. Originally the Government had been working towards implementing the next increase, to 52 weeks, in April 2009 but it has recently announced that this will now be put back to April 2010.
Watch this space! |
| Can you deal with a problem employee who won't cooperate? |
| Common-sense applied in disability discrimination case |
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If it always seems that the odds are stacked against the employer when claims are brought against them by disgruntled employees, then the case of Jama v Alcohol Recovery Project, which was recently heard in the Employment Appeal Tribunal, shows that common-sense can and does sometimes prevail.
In this case Mr Jama, a Somalian, suffered post traumatic stress disorder (PTSD) as a consequence of the violence he witnessed as a young man in war-torn Somalia. PTSD is a disability as defined under the Disability Discrimination Act. He had been dismissed by his employer after nearly two years of very poor attendance through a high level of sickness absence and persistent lateness. This was after he had already been given a final written warning. The employer had tried very hard to find out what was wrong with Mr Jama - they had referred him to their occupational health service, had asked him to provide medical notes from his doctor and had tried to get him to explain why his attendance was so poor. Mr Jama, however, did not cooperate. He did not attend appointments made for him with the occupational health service or supply any medical evidence. In effect, whilst the employer suspected that he had some very debilitating illness, they were unable to establish what it was and were unable, therefore, to consider any adjustments or ways of mitigating its impact on his work.
The Employment Tribunal and the Employment Appeal Tribunal both found that the employer was not guilty of disability discrimination in this case on the basis that it did not know that he was suffering PTSD at the time of dismissal and that it had made every effort to get to the bottom of the problem before dismissing him. Unfortunately the Tribunals also found that Mr Jama had been unfairly dismissed, and ordered the employer to pay compensation, because they had not followed the statutory dismissal procedures properly! However, had the disability claim been upheld the employer would probably have had to pay a few thousand pounds more in compensation. This case demonstrates, I think, that if an employer is careful in following the proper steps when managing poor attendance, and keeps copies of any documentation, it will be in strong position to defend itself should a claim be brought. It also demonstrates how important it is to try to obtain good medical evidence when dealing with someone whose poor attendance is purportedly sickness-related, and to keep records of all the attempts made to get hold of that evidence.
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