Recent Employment Tribunal Findings
London Borough of Brent v Fuller - Dismissal Mrs Fuller was employed as an administrator at a school under the London Borough of Brent. Unlike teaching staff, her role had no contact with children. On two reported occasions however she intervened when teaching staff were trying to control children’s behaviour. On the first occasion no formal action was taken against her although she was told not to intervene in such events. For the second occasion disciplinary action was taken. She did not attend the disciplinary hearing and was dismissed for gross misconduct – “repeated and inappropriate intervention into behavioural management issues” and “failure to follow reasonable management instructions”. Mrs Fuller appealed against the decision yet did not turn up for the meeting. She then raised a claim to an ET. The ET found in Mrs Fuller’s favour and said the action should have resulted in a verbal warning as it was a “one-off” incident thereby disregarding the previous event where Mrs Fuller had intervened. The school appealed and the EAT found in favour of the Borough and overturned the ET’s ruling. It stated that the ET should not have substituted its own view to that of the school, that the school had specific issues and that the previous incident was relevant despite no formal action having been taken. Mitie Security (London) Ltd v Ibrahim – Client request to remove from site Mr Ibrahim was employed as a security officer for Mitie Security (London) Ltd. He was removed from site as he did not bond with management colleagues. This was at the request of the client with whom Mitie had the contract. A meeting was held to discuss this removed and a letter subsequently sent confirming the meeting. The letter stated that a four week consultation period would take place and during this time alternative employment would try to be found for Mr Ibrahim. If not position was found his employment would end for “some other substantial reason”. No alternative employment was found. During the consultation period Ibrahim raised a grievance related to harassment and discrimination. A meeting was held to discuss this however Ibrahim did not attend. One month later he submitted a claim to an ET. At an ET pre-hearing it was found that a dismissal had taken place at the end of the consultation period and Ibrahim’s grievance was dismissed. Mitie appealed and the EAT found that Ibrahim had not been dismissed as the letter Mitie had sent to Ibrahim was in fact a warning that he could be dismissed. Lawless v Print Plus – Penalty for failure to follow statutory dispute regulations When employers fail to follow the disciplinary or grievance procedure an additional penalty can be enforced by an ET. In this case the ET stated that the size of the penalty should be dependant upon: · Whether the procedures were ignored totally or applied to some extent · Whether the failure to comply with the regulations was a deliberate or inadvertent act · Whether there are mitigating circumstances · The size and resources of the employer Hotelcare & Omni Facilities vs 13 rooms attendants 13 rooms attendants working ata five-star London hotel part of Park Plaza Hotels claimed they were paid below the minimum wage. They worked on average more than 40 hours a week and were paid by the room. The room attendants won back the pay and damages after it was found that Hotelcare was breaking the law. The settlement figure is unknown but has been reported to have been substantial. Optician prosecuted by HM Revenue & Customs (HMRC) B. Gains failed to pay his employees the national minimum wage. He falsified employee records by altering pay rates and failed to produce the necessary documentation required by the HMRC. He was fine by HMRC at total of £3696. John de Belin v Eversheds LLP – Redundancy selection criterion John de Belin faced redundancy along with his colleague, a female employee who was pregnant at the time. Both employees were graded according to Eversheds redundancy programme points system. De Belin lost ½ point against his female colleague and after later discovering that her score had been “unfairly inflated” he brought a unfair dismissal and sex discrimination claim against Eversheds. The ET ruled that an automatic score awarded to the female employee for “lock-up” client payments was unfairly applied. John de Belin won £123,000 in damages. Eversheds is to appeal the decision. Salford NHS Trust v Rolden – Dismissals Rolden was a Filipino nurse. She was summary dismissed for misconduct related to mistreating a patient. It was found that the dismissal was unfair related to: · The fact that the allegations were so serious that a more careful investigation should have taken place. Rolden faced deportation. · Conflicting evidence of two witnesses. The employer is not obliged to believe one witness and not the other in such circumstances. Rolden could have been given the benefit of the doubt in this situation. She was awarded £20,000 after the case went to an EAT and then to the COA. Bradford & Bingley v McCarthy –Redundancy Bradford & Bingley merged two employment positions into one. The employees of both positions were considered to be appropriate for the role however B&B chose one employee over the other. McCarthy was dismissed as a result. The EAT found that the dismissal was unfair because the selection process in the redundancy process was unfair. A selection pool where objective selection criteria is applied is necessary in such situations. In Stringer v HMRS (previously Ainsworth versus HMRC), the House of Lords ruled that the right to 4 weeks statutory paid holiday under the Working Time Regulations 1998 continued to accrue whilst an employee is on long term sickness absence. However in the recent case of Kahn v Martin McColl the ET has ruled that a claim for holiday pay related to previous holiday years was out of time. This has now created some confusion and it is highly probable that more will be written about this recent ruling. | 
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