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Constructive Dismissal

adrian_fryer

A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract on the part of the employer. A fundamental breach may, if it is serious enough, consist of a single act. It may also be made up of a number of more minor incidents culminating a ‘final straw’.

In Williams v Aderman Davies Church in Wales Primary School a teacher resigned and claimed constructive dismissal over the way in which the employer had handled a complex disciplinary case against him. He was concerned that evidence had been withheld and that this was part of a pattern of unfair treatment towards him and a failure take account of his mental health condition.

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Continuity of Employment

adrian_fryer

Only employees with two years’ continuous service have the right not to be unfairly dismissed. This qualifying period is measured to the day – so it is important to be clear about precisely when an employee started work.

In O’Sullivan v DSM Demolition Ltd, Mr O’Sullivan claimed unfair dismissal from his role as a Demolition Safety Supervisor. He said that he had been employed from 19 October 2015 to 21 October 2017. In replying to his claim however the employer said that his start date was 2nd November 2015. That was the date given on his written statement of terms and conditions. It was also consistent with the employer’s payroll records.

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Laddish culture

adrian_fryer

An Employment Tribunal has dismissed a claim that an employer discriminated against the only female member of its leadership team by talking about football all the time. In Liebenberg v DS Smith Packaging Ltd the employee argued that she was regarded as ‘not being one of the lads’ because she could not take part in their sporting discussions over boozy dinners.

The Tribunal did point out that the gender imbalance in the leadership team was ‘unacceptable’ – although that is not the same thing as ‘unlawful’ – but it rejected her claim.

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Marriage Discrimination

adrian_fryer

One of the least often claimed grounds of discrimination is marriage and civil partnership. Prejudice against married people is hardly widespread and there are few circumstances in which an employer might treat an employee less favourably because they were married. The case of Gould v St Johns Downshire Hill demonstrates how difficult it is for an employee to make a successful claim of direct discrimination on the grounds of marriage.

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Transfer of Undertakings – changing contracts

adrian_fryer

The Transfer of Undertakings Regulations (known as TUPE) provide that an employee’s terms and conditions cannot be changed because of the transfer of their employment from one employer to another. It has been argued in the past that this provision only applies to negative changes and that actual improvements in terms and conditions can be valid even though a strict reading of the Regulations themselves suggests otherwise. The issue was tested in Fergusen & ors v Astrea Asset Management Ltd in which an asset management company lost the contract to manage a high-value area of real estate in Kensington and Mayfair belonging to the Abu Dhabi Royal Family.

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Right to Work

adrian_fryer

An employer must be careful to avoid employing someone who does not have the right to work in the UK. Doing so knowingly is a criminal offence and inadvertently employing someone who is working illegally can lead to a civil penalty of up to £20,000 for an employer who has not carried out a proper documentation check.

At the same time it is important not to react too hastily in assuming that an employee’s permission to work has expired. A genuine but mistaken belief that an employee is not entitled to work in the UK can be a fair reason for dismissal, but the employer still needs to behave reasonably. Tribunals will understand that an employer needs to behave promptly, but that will not excuse a failure to examine the situation calmly and make proper enquiries – as the case of Sanha v Facilicom Cleaning Services Ltd shows.

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Unfair dismissal – gross misconduct

adrian_fryer

In considering a wrongful dismissal claim, the Tribunal needs to decide whether or not the employee is guilty of gross misconduct. When it comes to unfair dismissal that is precisely what the Tribunal should not do – at least until it comes to assess compensation. It should ask whether the employer reached a conclusion that was reasonably open to it – not whether it agrees with that conclusion.

A good example of the wrong approach is the case of Tai Tarian Ltd v Christie. Mr Christie was a maintenance worker for a housing association. He was dismissed when a tenant complained that he had made a series of homophobic remarks when working on her property, making her feel uncomfortable. He denied the allegations completely and argued that his dismissal was unfair.

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Wrongful dismissal

adrian_fryer

An employee dismissed without notice will often claim both unfair and wrongful dismissal. These are two distinct claims. Unfair dismissal is concerned with the reasonableness of the employer’s decision to dismiss the employee. Wrongful dismissal is a contractual claim centred around whether the employer was entitled to dismiss the employee without giving the full contractual notice required. That in turn depends on whether or not the employee was actually guilty of gross misconduct.

An employer might reasonably believe that the employee committed gross misconduct and successfully defend the unfair dismissal claim, but lose on the issue of wrongful dismissal because the Tribunal believes in the employee’s innocence. In such a case the employee would be entitled to damages covering the notice that should have been given.

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Redundancy

adrian_fryer

It is now common practice for employers to select employees for redundancy based on their performance at an interview. Often this process appears to be similar to a recruitment exercise, with the employer selecting those who will be offered a place in the new structure.

In Gwynedd Council v Barrett the employees concerned were teachers who were made redundant when the local authority closed the secondary school at which they were employed and opened a new school – on the same site – accommodating both primary and secondary pupils. They applied for posts at the new school but, following a selection process based on an interview, were unsuccessful and made redundant.

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Covid-19: The Return to Work

Rob Maddocks

This article outlines the ramifications, in terms of employment law, of a return to the office workplace and offers some practical steps that can be taken.

The main issues that we plan to cover are employer considerations in preparing for the return of workers to the workplace, communicating information about new working procedures to staff and employee rights on the return to the workplace.  There are some tips on employees travelling to and from work and the issues this may cause. We will also provide details of the Governments latest Furlough advice, including the Flexible Furlough Scheme and how this can be implemented.

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