Statutory Dismissal Procedures

The EAT has decided two interesting points on the statutory dismissal procedure - one on liability, one on quantum - in Aptuit Ltd v Kennedy.

First, it held that the statutory dismissal process does not require notification of the right to appeal to be given in writing. Verbal communication is sufficient (see paras. 35 and 44).

Second, it overturned an uplift of 40% which the tribunal had assessed because (a) it was a large employer; (b) there had been a general lack of consultation; and, (c) the Claimant had been treated in a 'shoddy' manner. The EAT stated that these were all irrelevant factors; in calculating the uplift, tribunals should only have regard to the failure to follow the statutory procedure (para. 47). This second point is likely to prove controversial, as there is nothing in the wording of the statute prohibiting tribunals from having regard to the surrounding circumstances.

Acas e-Learning module on Age Discrimination

Acas has issued a new e-Learning module on Age Discrimination. You can access it here (free registration is required).

I particularly recommend the flowcharts, specimen letters and case studies for retirement dismissals - they're very comprehensive but easy to follow.

Statutory Procedures: Adjustments to awards

Almost three years on, and we still haven't had any guidance on when awards should be increased by 10%, 50%, or somewhere in between, for failing to comply with the statutory dismissal procedures.

In Cex Ltd v Lewis, the EAT refused to lay down general guidelines but commented that it was appropriate for a tribunal to take into account the employer's ignorance of the statutory dismissal procedures when deciding to impose the minimum uplift of 10%.

The lack of guidelines is leading to inconsistent results; I have seen cases where a 50% uplift was awarded precisely because of the employer's ignorance of the law (rationalised as 'if they can't be bothered to learn how to act fairly...'). However, if the dismissal procedures are abolished, as the government intends, this may be a (relatively) short-lived problem.

[Thanks to Richard Linskell of Dawsons LLP, who acted for Cex Ltd. in this appeal, for telling me about the case]

Time-Limits

The EAT has upheld a decision not to accept an unfair dismissal claim which was presented 88 seconds late.

The Claimant tried to present his claim electronically about 15 mins before midnight on the last day for presentation. However, he mistyped the web address (typing 'qsi' instead of 'gsi'). He then sent a test message about 3 mins before midnight, and sent his actual Claim Form 1 min 28 secs after midnight.

The EAT upheld the ET's decision that the claim was out of time. It stated that it was reasonably practicable for the claim to have been presented within time (ie before midnight), and although the result seemed harsh, time limits are there to be followed.

Practice Statement on Citing Authorities in the EAT

The EAT has handed down a short practice statement (unusually, within the body of a judgment) on citing authorities.

The EAT reminds litigants and advocates that they should not rely on transcripts of authorities printed off from the internet, when the cases are reported in the IRLRs or ICRs.

The Practice Statement appears within the decision in Sage v Bacco at paras. 14-17.

Agency Workers

BANG!

The sound of another nail in the Dacas coffin. This time, it's the EAT sitting in Scotland, which repeats Elias P.'s comments in recent cases that it will not be necessary to imply an employment contract between worker and end-user when the relationship is explained by tri-partite (ie through an agency) contractual documentation - see para 15 of the judgement.

Wood Group Engineering v Robertson

TUPE

HHJ McMullen has handed down an interesting TUPE decision, Compass Group v Burke.

In it, the EAT reminds practitioners of the principles for establishing whether there has been a TUPE transfer, and whether particular employees were assigned to the undertaking (para. 9).

The EAT also held that, once the primary facts are established by the tribunal, the question as to whether a TUPE transfer took place is a matter of law (para 10), and thus susceptible to review by an appellate court.

Stress at Work

The Court of Appeal has handed down a decision dealing with contractual liability for stress at work.

After 30 years' good employment, the Claimant developed depression after an allegation of sexual harassment was made against him (and the investigation was, in part, bungled). The Court of Appeal, overturning the High Court's decision, held:

• a policy requiring the employer to handle complaints of harassment "sensitively" was aspirational and did not form part of the Claimant's contract of employment (paras. 17-18)
• although the covening of a panel with two, rather than three, members was a breach of a contractual term, it was not reasonably foreseeable that the Claimant would suffer a psychological reaction as a result (paras. 22-23)
• it was not negligent of the employer to inform the Claimant of its decision "by leaving a bald letter on his desk" - it is the content of the decision, not the manner of transmission (presumably, without more), which is important (paras. 41-42)

This case is another example of the tendency since Sutherland v Hatton in 2002 to limit the scope of stress at work claims.

Deadman v Bristol City Council

Dismissals following Bullying Induced Stress Absence

The Court of Appeal has upheld the EAT's decision in McAdie v Royal Bank of Scotland (see bulletin 30/11/06).

The case considers the fairness of a dismissal where the employee was on long-term stress-related sick absence, caused by bullying and mismanagement at work.

The Court of Appeal ratified the EAT's reasoning, holding that:-

• the fact that the employer has caused the incapacity in question, however culpably, does not preclude it from fairly dismissing the employee
• the real question is whether the employer acted reasonably "in all the circumstances" - and the circumstances include the fact that the employer was responsible for the original absence
• where the employer is responsible for an employee's incapacity, it should normally be expected to "go the extra mile in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable" (this is a quote from the EAT judgment, with which the Court of Appeal agreed).

[Thanks to Jane McNeill QC and Damian Brown of Old Square Chambers, who acted for the successful employer, for telling me about this judgment]