A round up of the latest HR and Employment Law updates and related stories.

MANAGING UNFAIR DISMISSAL – THE IMPORTANCE OF FOLLOWING PROCEDURE

The recent case of Carter v Aulds Bakeries Ltd UKEATS/0018/15/SM illustrates the importance of following procedure when considering a dismissal for any reason.

Mr Carter had been employed with a “clear disciplinary record” since 2005 until 9 September 2013 when he was sentenced to six months’ imprisonment (dangerous driving and public disorder offences) but was released from prison on remission on 5^th November 2013.

When Mr Carter reported back to work he was told that he could not return and was later given a letter of dismissal. He appealed to his employers who advised him that his imprisonment had “frustrated” his contract of employment so he was not entitled to any appeal.

Mr Carter then made a claim to the Employment Tribunal (ET) which was postponed because Aulds did then decide to have an “internal appeal.” As this was unsuccessful the case proceeded to the Employment Tribunal (ET).

The dismissal

Mr Carter’s employment contract with Aulds included provision for an inability to work such as:

• employee contact to inform managers
• a “return to work” discussion when absent for a full day
• “failure to attend work would involve disciplinary proceedings”

Mr Carter’s dismissal letter said his employment was terminated because there was a lack of “clarity” about his length of absence and return and that he:

1. Was “unable to attend work to do the job you were employed to do”
2. Failed to adequately inform them about the absence.
3. Did not request a leave of absence (such as holidays)

Actually, Ms Shaw, Mr Carter’s partner, had:

• visited the Managing Director for a frank and open discussion on 9^th September (day of sentencing)
• spoken to Mr Carter’s supervisor
• kept in contact with Aulds on a weekly basis.

The Tribunal

Although the ET accepted that the later “internal appeal” was fair, it could not “cure the defects of the original dismissal” because:

• “Aulds “followed no procedure whatsoever” for the original dismissal and merely regarded Mr Carter’s termination as a frustration of the employment contract, so there had not been any proper investigation before dismissal  and

• there were also “unreasonable failures” by Aulds “to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.”

The ET found the dismissal unfair and determined that reinstatement was unfair, but that damages awarded were reduced by 100% (so Mr Carter received no money) because they considered him “wholly to blame for what caused and contributed to his dismissal.”

Mr Carter appealed to the Employment Appeal Tribunal (EAT) who agreed with the ET’s decision that the dismissal was unfair. However, the EAT did find that the ET had not given “sufficient reasoning” why there should not be a reinstatement and why it was “just and equitable” to make the deduction and so the matter was referred back to enable them to do this.

What is clear from this case is that any dismissal could potentially be unfair even if the employee “wholly contributed” to it. Therefore, whatever the circumstances regarding a potential dismissal, employers must always follow their own disciplinary and grievance procedures procedure or the ACAS guidelines for dismissal.

—————-

Trending topics in the forum:
Ex Practice Manager keeps popping in…
8 Pictures that will give Practice Managers intense flashbacks
How much should PMs get paid
Working from home one day per week