Employment Law Update - July 2020 - Vista
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Employment Law Update – July 2020

Hello and welcome to this months employment law update.

Today, we are pleased to announce the launch of our Redundancy Resource Hub for employers and HR professionals.

In other news, this month we also cover:

  • An in depth look at two cases from the tribunal that highlight the importance of making good quality decisions at the disciplinary stage
  • A new discrimination case which raises some questions about unconscious bias and its effects on decision making
  • Constructive dismissal in Williams v Aderman Davies Church in Wales Primary School 
  • New guidance from us on managing employees overseas holiday plans in light of new quarantine rules
  • Our new HR Masterclasses for those planning a collective redundancy consultation exercise

For the full update, please sign up below.

Making Good Quality Decisions at Disciplinary Stage

This month we look at a couple of cases that take our thinking right back to the ‘day to day’ of managing ER issues (remember those!).  Whilst there is not necessarily any ‘new news’ here, the cases are some good reminders of the importance of process and clear decision-making that managers need to demonstrate when managing disciplinary issues.

East Coast Mainline Company Limited v. Cameron

When an employee is dismissed for gross misconduct, they have two potential claims:  Unfair and wrongful dismissal.

  • 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 to them at the time they were dismissed.

Click here for the facts of the case

What can we learn from this case?

This is a case where the ET itself got itself mixed up, applying the mitigating and aggravating factors evidence to the test of wrongful dismissal. What is clear is that a single act of carelessness could amount to gross misconduct if the lapse was serious enough – and it was certainly so in this case where it had very nearly led to a loss of life.

So, the EAT found that the employer had been entitled to dismiss without notice, so the wrongful dismissal claim failed.

Remember, at the heart of a good quality disciplinary decision is a great quality investigation. As investigators, or HR teams supporting managers, you can use the structure in this matrix when planning your investigation.

Tai Taran Ltd v Christie

This next case focuses on the quality of decision-making to establish that the disciplinary chairperson’s decision was ‘within the range of reasonable responses’:  This is the test at the heart of an unfair dismissal claim.

Click here to read the facts of the case

What can we learn from this case?

Whilst this is an example of the ET falling in to error by substituting its own view rather than deciding whether the employer’s view was reasonable, it does highlight the importance of the disciplinary chairperson ‘showing their workings’ in terms of explaining why they made their decision (i.e. ‘what actually happened’ in the matrix above) particularly when it comes down to one person’s word against another’s.

It also shows the importance of the chairperson making sure the employee sees all the relevant evidence.

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See you next month!

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