Latest UK Employment Law case updates - November 2016
- Christmas parties: When is an employer liable for drunken antics?
- Disciplinary sanctions and dismissal: When can employers rely on earlier warnings?
- Employers must give workers the opportunity to take breaks.
- Disciplinary investigations and handling serious allegations.
Bellman v Northampton Recruitment Ltd  EWHC 3104 (QB) (01 December 2016)
The High Court has ruled that a company was not vicariously liable for the assault on a manager, by a director, after the Christmas party.
Following the company Christmas party half of the guests went on to a hotel and continued drinking. A heated discussion ensued resulting in one of the directors punching the manager twice and knocking him out. He sustained brain damage and brought a claim for damages against the company on the basis that they were vicariously liable for the acts of their employees.
The High Court rejected the claim. Even though the company had paid for the taxis to the hotel, had paid for some of the additional drinks and the discussion had been about work, the Court held that the assault was committed after, not during, a work social event. The Court concluded that the after party had become an entirely independent, voluntary, and discreet early hours drinking session of a very different nature to the company Christmas party and unconnected with the Defendant’s business. If the assault had happened earlier on in the evening, the Judge said that the company could have been liable.
The decision is a surprising one but serves as a timely reminder of the risks to an employer where employees behave inappropriately at work events. It may also provide some relief to employers during Christmas party season by apparently raising the bar (no pun intended) for when a social function will be viewed as employer "sponsored".
Bandara v British Broadcasting Corporation ("BBC")
In this case, the Employment Appeal Tribunal ("EAT") confirmed that an employer cannot rely on a manifestly inappropriate final warning when dismissing an employee.
The claimant worked as a senior producer for the BBC and had an unblemished disciplinary record going back 18 years. However, in 2013 the claimant was charged with abusive behaviour and failing to follow editorial guidelines. The BBC considered that both incidents potentially constituted gross misconduct and a final written warning was imposed. Shortly after, the claimant was subject to further disciplinary proceedings regarding allegations of bullying and intimidation. At the conclusion of the disciplinary process, the claimant was dismissed. The claimant pursued claims of unfair dismissal.
The Employment Tribunal ("ET") rejected the claimant's claims but noted that the BBC's final written warning was "manifestly inappropriate". On appeal, the EAT confirmed that the final written warning was inappropriate, because according to the BBC's own policies, the claimant's acts did not justify a final written warning. The EAT also held that the correct test to apply in this case is whether the employer's decision to dismiss fell within the range of responses a reasonable employer may have adopted in the circumstances. The case has been sent back to the ET for a decision on this point.
This case is seen as a warning to employers as it shows the importance of ensuring that disciplinary codes and internal policies are up to date and accurate. If an employer intends to rely on earlier sanctions when dismissing an employee, it should carefully consider whether the earlier sanctions were sound before proceeding to dismiss.
Grange v Abellio London Ltd
The Working Time Regulations 1998 ("WTR") provide that if a worker's daily working time exceeds six hours he is entitled to a rest break. In this case, the EAT held that an employer has an obligation to allow workers to take a break, however if the workers choose not to take a break, the employer's obligations are satisfied.
The Claimant's working day lasted eight and a half hours and the intention was that he would take a half hour unpaid lunch break. In reality, it would have been very difficult for him to take this break due to the volume of work. In July 2012 the Company then informed their employees that they could work straight through the eight hours and go home half an hour earlier. The Claimant then submitted a grievance in July 2014 complaining that he had been forced to work without a break and it had negatively impacted his health. When the grievance was rejected he took his claim to the Employment Tribunal which again was dismissed and he finally appealed to the EAT.
The EAT allowed the appeal, stating that an employer "cannot withdraw into a passive role and grant rest periods only to those workers who ask for them."
The lesson from this decision is that employers must be proactive in ensuring that working arrangements allow for workers to take breaks. Clearly in reality, a large amount of workers do not take rest breaks due to the volume of work; however it is important for employers to consider what working arrangements are in place and whether workers are given the opportunity to take a break.
Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust UKEAT/0081/16/JOJ
The seriousness of the allegation will impact the duty of investigation to be imposed on the employer.
The Claimant was employed by the Respondent as a Healthcare Assistant. Allegations were made by a patient that the Claimant had been abusive and effectively assaulted the patient when she had asked for a morphine top-up for her pain. An investigation was launched, which lead to a disciplinary hearing and an appeal against the decision to dismiss the Claimant. There were flaws with the initial investigation, for example, evidence was not obtained from the nurses on duty at the time of the incident.
The Claimant brought a claim for unfair dismissal to the ET. The ET was satisfied that the dismissal of the Claimant was fair, on the basis that the Respondent had carried out a reasonable investigation of the incident and that this constituted reasonable grounds for the belief in the Claimant's misconduct.
This was appealed and the EAT overturned the decision on the basis that the ET had failed to give weight to the flaws in the Respondent's investigation, particularly the Respondent's failure to undertake a standard of inquiry that reflected the gravity of the allegations made against the Claimant. This impacted the ET's decision as to the overall fairness of the investigation and process, which might, in turn, have impacted upon whether the Respondent was reasonable in accepting this allegation as true.
Employers should be alive to the fact that they will be held to a higher duty of investigation where the allegations against the Claimant are serious. This will be particularly important in financial services cases where an allegation of dishonesty could mean the individual is no longer able to work in that industry.