There is a common misconception that a current or former employee is entitled to a ‘good’ reference or, more accurately, that an employer cannot make any negative comments about an employee. This is simply wrong. In the education sector a useful starting point is the School Staffing (England) Regulations 2009 (SI 2009/2680) which states that where a candidate applies for employment at an academy or maintained school in England then the governors of the previous school must, if asked, advise in writing whether the candidate has been the subject of capability proceedings within the last two years and, if so, give written details of how the concerns arose, for how long they lasted and the outcome of any proceedings. In addition, the new DfE non-statutory guidance on ‘Staffing and employment – Read More…
Employee unfairly dismissed for failing drugs test
In Ball v First Essex Buses Limited ET 3201435/2017 an Employment Tribunal decided an employee was unfairly dismissed for gross misconduct when he failed a routine drug test. The Law An employer must hold such investigation as is “reasonable in all the circumstances” when investigating a potential misconduct issue (Sainsbury’s Supermarkets Ltd v Hitt [2002] EWCA Civ 1588). An employer will need to investigate sufficiently and the more serious the allegation the more detailed an employer should be. The allegations put to the employee must be sufficiently clear so that the employee can respond in a meaningful manner. When an employer dismisses for misconduct, the Burchell test requires that, at the time of dismissal, the employer has:- 1. A reasonable belief in the employee’s guilt which is, 2. based on – Read More…
Workers do not automatically lose right to payment in lieu of untaken holidays
Summary In two German cases relating to the right to a payment in lieu of accrued but untaken annual leave the European Court has ruled that, under the Working Time Directive, a worker does not automatically lose their accrued but untaken holiday entitlement at the end of a holiday year in when they have failed to seek to take their holiday entitlement for that period. However, holiday entitlement can be lost if the employer can show that it took steps to encourage the worker to take the holiday before the end of the holiday year. If the worker has not lost their holiday entitlement, they are entitled to a payment in lieu of that entitlement on termination, or to carry the entitlement forward into the next holiday year. – Read More…
Managing Director assaults Employee at hotel drinks after Christmas party – Appeal
Firstly, it is important to note that cases involving vicarious liability depend heavily on the facts. Vicarious liability in employment terms is where an Employer is held responsible for the acts or omissions of an Employee in the course of employment. The test used in these cases asks the question, were the torts so closely connected with the employment that it would be fair and just to hold the Employers vicariously liable? In the case of Bellman v Northampton Recruitment Ltd an incident took place after a Christmas party. The Managing Director (the MD) of the Respondent company physically attacked an employee leaving him with severe injuries. The Christmas party took place at a golf club and following the party, around half of the guests moved on to the hotel – Read More…
Appeal against a finding that the Claimant had not resigned but had been dismissed by the Respondent. Appeal dismissed.
Ms Levy was employed by East Kent Hospitals University NHS Foundation Trust since 29 March 2006 as an Assistant Administrator. Ms Levy had experienced various issues during her employment and had a difficult relationship with one of her colleagues. She had also been spoken to regarding her absence record. As Ms Levy became unhappy in her role, she applied for a different role within the trust. She was informed she was successful on 9th June 2016 subject to pre-engagement checks. On 10th June 2016, an issue occurred between Ms Levy and a colleague and this led to Ms Levy handing a letter to her Manager stating “Please accept one month’s notice from the above date. Her manager responded by letter on the same day accepting her resignation and confirmed that – Read More…
Parents who lose a child to be entitled to bereavement leave.
A new workplace right to paid leave for bereaved parents has been officially enshrined in law on Thursday 13 September 2018 as the Parental Leave and Pay Bill achieves Royal Assent. The first law of its kind in the UK will support those affected by the tragedy of childhood mortality and is expected to come into force in 2020. The new Parental Bereavement Leave and Pay Act will give all employed parents a day-one right to 2 weeks’ leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. Employed parents will also be able to claim pay for this period, subject to meeting eligibility criteria. The leave must be taken within 56 days of the child’s death. Source: BEIS: UK – Read More…
Where a contractual disciplinary appeal is successful, there is no dismissal (Court of Appeal)
It was originally decided by the Employment Appeals Tribunal (EAT) that there was no dismissal where an employee was successful in his appeal addressing only one of two disciplinary allegations against him. The employee had a right to appeal under a contractual disciplinary procedure and after his successful appeal the decision to dismiss was revoked. In Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689 the Court of appeal has now also agreed with the decision of the EAT. As part of the leading judgement, Sales LJ stated “I consider that …it is clearly implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of dismissal that, if an appeal is lodged, pursued to its conclusion and is successful, – Read More…
Employee dismissed for failing to evidence his continued right to work should have had the right to appeal (EAT)
Mr Afzal was employed by Dominos Pizza. since October 2009 He was obliged to make an in-time application by 12 August to remain in the UK legally and Dominos Pizza asked for evidence that he had done so. Mr Afzal emailed documentation very late on 12 August but his employer could not open the documents and therefore, because they were concerned to avoid any risk from continuing to employ him illegally, posted notice of dismissal to him on 12 August. No right of appeal was given. The Employment Tribunal found that the dismissal was fair and on the grounds of some other substantial reason, namely that Dominos Pizza genuinely believed that his employment was prohibited by statute. It had been reasonable for Dominos to hold this belief (given the lack – Read More…
Written warning after 60 days absence was disability
The Employment Appeal Tribunal decided that the employer had not justified its decision to issue a disciplinary warning to a disabled employee. The Claimant in the case, Mrs O’Conner, had a high level of sickness absence, over a number of years, relating to her disability. She had exceeded the trigger points contained in her employer’s sickness absence procedure. It was accepted that the employer had adopted a very careful and sensitive approach to managing her absence and had allowed a much longer period of absence than the policy would have allowed. Ultimately, however, in 2016 she was disciplined and issued with a written warning after taking 60 days absence in the previous 12 months. The Claimant claimed discrimination arising from her disability contrary to Section 15 of the Equality Act – Read More…
Plumber Wins Workers’ Rights Battle Against Pimlico Plumbers in Supreme Court
On the 13th June 2018 the Supreme Court dismissed the appeal of Pimlico Plumbers and agreed with the Court of Appeal decision that Mr Smith was a worker and not a self-employed contractor. Mr Smith worked as a plumber, carrying out work for Pimlico Plumbers between 2005 and 2011. In 2011 Mr Smith suffered from a heart attack and claimed he had been unfairly dismissed even though for VAT and income tax he presented himself as self-employed. Pimlico Plumbers had a business model which presented those carrying out work as working for the business itself. At the same time Pimlico Plumbers maintained that the relationship was self-employed independent contractors, not Employer and Employee. The Employment Tribunal, the Employment Appeals Tribunal and the Court of Appeal all reached the decision that – Read More…
