UK Employment Law Update - February 2014

By Ian Hunter, Warren Wayne, Elizabeth Lang, Colin Kendon


Our experts analyse four recent UK Employment Law cases, along with key points to note against each.

Unfair dismissal

When is it fair to dismiss on grounds of ill-health?

Under the Employment Rights Act 1996, ‘capability’ is one of the potentially fair reasons for dismissal. However, an employer must show that it was reasonable in the circumstances to dismiss the employee for reasons relating to capability.

In BS v Dundee City Council, the Scottish Court of Session considered the case of an employee who had been dismissed following a period of sickness absence lasting over a year. The dismissal occurred nine days after the employer was presented with a medical report for the employee which estimated that he should be fit to return to work within one to three months.
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A reasoned discussion of the 'range of reasonable responses'

In HCL Safety Ltd v Flaherty, Flaherty was dismissed by his employer for misconduct after working on a roof without a safety harness, despite instruction not to do so. The Employment Tribunal held that in this instance, the dismissal was ‘within the range of reasonable responses’. However, the ET held that the dismissal was procedurally unfair; it was not convinced that there had been a proper investigation of the incident. During the disciplinary meeting at which the employee was dismissed, the decision regarding his dismissal appeared to have already been made. Further, the employee was not supplied with written witness statements or written notification of the meeting.
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Agency workers

Regulations only apply to ‘temporary’ workers

In Moran and others v Ideal Cleaning Services and Celanese Acetate, the EAT considered the case of several claimants who were employed by the first Respondent but were placed to work as agency workers at the premises, and under the supervision of the second Respondent. This arrangement continued for many years. When the claimants were made redundant, they argued that they qualified for protection under the Agency Workers Regulations 2010 (‘the Regulations’) as 'agency workers' and so were entitled to the same basic working and employment conditions as the employees of the second Respondent.
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Disciplinary proceedings

Right to be accompanied

In Roberts v GB Oils, the EAT considered the case of an employee who made a request to be accompanied at a disciplinary hearing by a trade union official who had been banned by the employer from entering any of the employer’s sites.

Was this a ‘reasonable’ request by the employee?

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