UK Employment Law case updates - October 2017

Latest UK Employment Law case updates - October 2017

  1. Can a misconduct investigation be too thorough?
  2. Where on earth are your employees based?
  3. Are employees expected to work through discriminatory treatment?

Can a misconduct investigation be too thorough?

(Employment Appeal Tribunal)

The EAT has rejected a claim that an employer's disciplinary investigation was unreasonably detailed, and held that the employee's subsequent dismissal for gross misconduct was fair.

Ms Pillar was a nurse practitioner, whose role involved triaging members of the public to determine their medical priority. She was dismissed for gross misconduct following an incident where she sent a patient who had experienced a heart attack to an out of hours GP, rather than calling 999. Ms Pillar brought proceedings in the ET, alleging that her dismissal was unfair because the investigation report, on which the employer had principally based its decision, included reference to two previous incidents which had not been treated as disciplinary matters. The Tribunal agreed with Ms Pillar, finding that those prior incidents should have been excluded from the investigation report. NHS 24 appealed.

The EAT found the ET's approach to be inconsistent. It held that a too-detailed investigation would not fail the test of whether the investigation had been adequate unless it were overzealous or otherwise unfair. The judge emphasised that disciplinary procedures should involve a two-stage process: the investigatory officer's task is to gather all relevant material to enable the disciplinary officer to reach a decision based on all pertinent factors. In this case, excluding material relevant to Ms Pillar's competence (and public safety) would have been a serious omission. Whilst Ms Pillar had not been subject to prior disciplinary proceedings, this did not on the evidence create any expectation that future incidents would be treated less seriously.

Although the facts of this case were unusual, the decision both clarifies the extent to which previous conduct can and should be taken into account in a disciplinary hearing; and reiterates the rule that employers remain subject to the "range of reasonable responses" test when deciding whether a disciplinary investigation was reasonable.

Where on earth are your employees based?

Nogueira and Ors v Crewlink Ireland Ltd and Moreno Osacar v Ryanair

Employees carrying out work in two or more Member States may bring their claims before the courts of the Member State in which they perform the essential part of their duties, the CJEU ruled last month.

The claimants were cabin crew and a cabin services agent, employed by Crewlink and Ryanair respectively. Their employment contracts were in English, subject to Irish law, and included a clause providing that the Irish courts had jurisdiction in the event of any disputes between the parties. There was also a clause in the contracts which stated that the Claimants' services were deemed to be performed in Ireland, although their home base was a Belgian airport. When the claimants brought proceedings in Belgium in respect of their employment rights, their case was referred to the CJEU for a decision on whether the Belgian court had jurisdiction to hear the claims.

The CJEU held that, in a situation where an employee works in several States with no obvious centre of activity, the place where the employee habitually carries out their work, and thus the place where they are able to bring an employment claim, is defined as where the employee performs the essential part of their duties. The exclusive jurisdiction clause within the employees' contracts was also found to be unenforceable.

Since the court has consistently emphasised that the definition of the place where an employee habitually carries out their work should be interpreted broadly, this decision will not come as a surprise to employers. The judgment emphasised that the weaker party in a dispute – usually the employee –should be protected by ensuring jurisdiction rules are more favourable to their interests. It is also important to note that the case concerned the matter of where claims may be brought, not which law should apply to the contract. Contrary to some reports, the decision does not prevent Ryanair from insisting on Irish law applying to the employment contracts of foreign workers: this case relates to a court's jurisdiction to hear claims, and not governing law.

Are employees expected to work through discriminatory treatment?

Brian Rochford v WNS Global Services (Court of Appeal)

The Court of Appeal has decided that an employer's discriminatory conduct towards a disabled employee following an extended period of sick leave did not entitle the employee to refuse allocated work. A misconduct dismissal on the grounds of insubordination may be substantively fair even if the refusal to work is in response to discrimination.

Mr Rochford had a back injury, and required almost a year off work to recover after undergoing spinal surgery. When he returned, his employer decided to narrow his role (albeit on full pay) and failed to provide a date on which his previous remit would be reinstated. Mr Rochford refused to work, raised an internal grievance alleging disability discrimination (which was not upheld) and was subsequently summarily dismissed for misconduct on the grounds of insubordination following a disciplinary procedure.

At first instance and on appeal to the EAT, it was accepted that Mr Rochford's 'demotion', combined with his employer's failure to indicate when he would return to his 'full' role, constituted unlawful discrimination 'arising from' his disability. However, it was also found that his subsequent dismissal for insubordination was substantively fair (even if executed unfairly on procedural grounds). The Court of Appeal agreed, commenting that whether an individual is justified in refusing to work will be a matter of fact and degree in each case; in this case the employer's actions were aimed at supporting Mr Rochford's return and the revised scope of work was consistent with both Mr Rochford's contract and abilities. In this case, Mr Rochford was not entitled to do nothing until his employer yielded to his point of view, notwithstanding the fact that his treatment had been discriminatory.

Employers should be cautious not to interpret this decision as facilitating the dismissal of employees who raise concerns regarding discrimination. It is clear that an employee may sometimes be justified in refusing to work (such that it would be unreasonable to dismiss), but that the specific facts of this case meant that this was not so here. The decision also highlights the care with which employers should approach any changes to a disabled employee's role on their return to work. While reasonable adjustments should be considered, they should always be discussed openly and consistent with both an employee's contract and abilities.

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