A wealth of recent unfair dismissal decisions

by Dentons


Seasonal businesses can have a tough time if they try to sell ice cream in the UK in the winter or turkeys in the middle of summer. Conversely, when seasonal businesses are at peak time, employees and businesses are faced with additional pressure to provide goods and services, often within very short timeframes. This article summarises three recent unfair dismissal cases, including a tricky situation faced by such a seasonal business.

Christmas hamper gate

The busiest time of year at food company, Bramble Foods Ltd (Bramble), is the two-month period from mid-September each year when they produce Christmas hampers. Bramble's employment terms include a standard provision that employees are required to work additional hours when required by the business. Bramble took the decision to formalise its overtime arrangements with its employees by requiring employees to choose four to eight Saturday mornings that they could work during this busy period. Mrs Edwards was the only employee who refused to work any Saturdays at all.

Bramble was extraordinarily patient in attempting to get Mrs Edwards to agree to this management instruction to work some Saturday mornings. Bramble had several informal discussions with her explaining that, if all the employees split the workload between them, the business could meet its tight supply deadlines. In response, Mrs Edwards continued to refuse to work additional hours, as she wanted to spend her weekends with her husband and boasted to her colleagues that, while they would be working, she would be enjoying a lie-in.

Mrs Edwards was ultimately dismissed by Bramble, following several complaints from her colleagues. One of the principal reasons that Bramble dismissed her was because of its belief that a number of its other employees would renege their consent to weekend-working and Mrs Edwards was a real threat to fulfilling its Christmas orders.

Mrs Edwards brought an employment tribunal claim which she lost. Despite a number of minor procedural flaws, the tribunal found that she was fairly dismissed, as she had no legitimate reason for refusing what she accepted was a reasonable management instruction. Dismissal was therefore within the range of reasonable responses. While this is only a first instance decision, it will come as some relief to employers who bend over backwards to manage difficult employees. It is noteworthy, however, that Mrs Edwards had no good reason for refusing to work on Saturday mornings. The outcome might have been different if, for example, she had family or religious commitments which could give rise to arguments around indirect discrimination. (Edwards v. Bramble Foods Limited ET/20610556/2015).

Effect of "manifestly inappropriate" disciplinary action

Our second case deals with the situation where an Employment Tribunal has held that disciplinary action taken by an employer is "manifestly inappropriate", and whether it is in the Employment Tribunal's remit to further determine whether, if different disciplinary action had been taken by an employer, the employer could have dismissed an employee.

Mr Bandara had an exemplary record at the BBC, where he had worked for 18 years. On 23 July 2013, Mr Bandara decided to put a story on the birth of Prince George on the backburner, partly because that day was also the 30th anniversary of Black July (a remembrance day in his native Sri Lanka). Although Mr Bandara later published the story, he was subjected to disciplinary action and given a final written warning. The BBC then commenced further disciplinary investigations into Mr Bandara's behaviour (including allegations that he had bullied junior colleagues) and summarily dismissed him a short while later. Mr Bandara brought claims in the Employment Tribunal for unfair dismissal, racial and religious discrimination.

At first instance, the Employment Tribunal decided that the decision to give Mr Bandara a final written warning was "manifestly inappropriate" and that the final written warning had been taken into account by the BBC when dismissing him. The Employment Tribunal then directed itself to consider whether, if Mr Bandara had instead been given a written warning (which it considered to be a legitimate disciplinary action in the circumstances), the decision to dismiss Mr Bandara would have been fair. The Employment Tribunal held that, in all the circumstances, Mr Bandara's dismissal would indeed have been fair.

Mr Bandara appealed to the EAT, which found that the Employment Tribunal had gone too far in considering whether it would have been appropriate to have dismissed Mr Bandara for a hypothetical written warning. The correct approach would have been for the Employment Tribunal to decide how much weight the BBC had given to the final written warning when deciding to dismiss Mr Bandara and the actual reason why Mr Bandara was dismissed.

On that basis, the EAT remitted the case to the Employment Tribunal for reconsideration. Mr Bandara was ultimately successful in his unfair dismissal claim (although his discrimination claims were dismissed), as the Employment Tribunal was satisfied that the dismissing manager was significantly influenced by the fact that Mr Bandara did not have a clean disciplinary record. Mr Bandara was subsequently awarded £50,000, which was halved due to his own contributory fault.

While Mr Bandara contributed to his own dismissal, it is not surprising that a final written warning in these circumstances was not appropriate for an employee with many unblemished years of service. We encourage employers to always consider, among other things, an employee's current disciplinary record and length of service in context before making any decisions to discipline an employee. (Bandara v. BBC UKEAT/0335/15/JOJ).

How will a "perfunctory and insensitive" redundancy consultation effect a dismissal?

This decision is a useful reminder to employers to take care if they are considering carrying out a sham redundancy process, and to point out the dangers of getting it wrong.

Mr Thomas had been employed by BNP Paribas since 1972, most recently as a Director in its Property Management Division. BNP Paribas decided to make Mr Thomas redundant and made a catalogue of errors in the process. For example, BNP "insensitively" got Mr Thomas's first name wrong in correspondence, and suggested alternative vacancies which did not exist. When Mr Thomas was made redundant, he appealed the decision on the basis that the process was a sham. Mr Thomas subsequently brought claims for unfair dismissal, age discrimination and disability discrimination.

Mr Thomas's claim for unfair dismissal was surprisingly rejected by the Employment Tribunal, even though it also found that BNP Paribas's redundancy process was handled in a perfunctory manner, with a lack of sensitivity. On appeal to the EAT, the EAT was concerned that the Employment Tribunal found that Mr Thomas's dismissal was within the range of reasonable responses even though it identified material flaws in the process. The Employment Tribunal should have explained why it had reached its decision, and so the EAT remitted the case to a differently constituted tribunal. (Thomas v. BNP Paribas Real Estate Advisory & Property Management UK Ltd UKEAT/01344/16/JOJ).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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