A wealth of recent unfair dismissal decisions

by Dentons
Contact

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.

© Dentons | Attorney Advertising

Written by:

Dentons
Contact
more
less

Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.