Employment Law E-Bulletin

Cases: April 09

This month has seen yet another interesting case dealing with the Employment Equality (Religion and Belief) Regulations 2003 (the Regulations).  In the case of Nicholson v Grainger Plc, Mr Nicholson argued that his strength of feeling about the state of the environment amounted to a philosophical belief, which should enjoy protection under the regulations.  The issue was considered as a point of law at a pre-hearing review and an Employment Tribunal found in favour of Mr Nicholson. 

Mr Nicholson was Head of Sustainability at Grainger Plc until he was made redundant.  He is claiming that his belief about the environment and his attempts to bring environmental concerns to senior management, led to his dismissal. The case may be fact specific in that the judge found that Mr Nicholson’s personal belief went “beyond mere opinion”.  However, this ruling could effectively expand the impact of the Regulations to include those who have a genuine conviction that the planet is under threat and live their life in accordance with that belief.

It is worth bearing in mind that this is only an Employment Tribunal decision and is therefore not binding in future cases.  However, the case is worthy of note in that, if followed (and if not successfully appealed by Grainger Plc) it shows that the scope of the Regulations could be even more wide ranging than previously thought.

The next two cases are less headline grabbing but raise important points in relation to negotiating with employees. 

In Radecki v Kirklees Metropolitan Borough Council, Mr Radecki, a teacher, had been suspended by his employer on full pay after a number of concerns had been raised about his work and the way in which he communicated with other staff members.  At a very early stage in the disciplinary process, Mr Radecki entered into negotiations with a view to a possible departure under a compromise agreement, rather than continuing with the disciplinary process.  An agreement was drafted which stated that Mr Radecki’s employment would terminate by mutual consent on 31 October 2006.  Although the negotiations on the exact terms of the agreement were not finished by that date, the school removed him from the payroll anyway.

The negotiations about the terms of the agreement then continued for a considerable period until, eventually, on 22 February 2007, Mr Radecki wrote to his employer to advise them that he was still unhappy with the terms of the compromise agreement and would not sign it.  The Council then wrote to Mr Radecki advising him that his employment had been terminated as of 31 October 2006, the date on which he had been removed from the payroll.  Mr Radecki immediately lodged a claim for unfair dismissal but the Council challenged the claim arguing that his claim had been presented beyond the start of the three-month period from dismissal within which such claims must be made.

Unfortunately for Mr Radecki, the Employment Tribunal agreed that Mr Radecki’s employment had terminated on the date that he was removed from the payroll even though the agreement naming that as the termination date was marked, “Without Prejudice and Subject to Contract”.  The EAT disagreed with this analysis and felt that his employment had not ended until the negotiations regarding the compromise agreement had collapsed in March. 

However, the Court of Appeal has sided with the employer.  The Court of Appeal felt that the fundamental point was that Mr Radecki had not been paid from 31 October 2006.  The fact that both parties thought that the proposed compromise agreement would eventually result in a settlement was not relevant to the question of when the employment relationship had been severed.  Mr Radecki’s employment had effectively terminated from the moment that he was taken off the payroll and the three-month time limit for him to bring the claim therefore ran from that date. 

Although this was to the employer’s advantage in this case, it is worth noting that taking the employee off the payroll will amount to a dismissal.  As a result, employers should not take this step until a compromise agreement is signed by the departing employee because the employee could rely on this act for a constructive unfair dismissal claim if they later decide not to sign a proposed agreement: always provided that they presented the claim within three months.

The final case for us to consider this month is one which touches upon concepts which will become more relevant in the coming months as employers try to follow the new ACAS Code on disciplinary and grievances. 

The ACAS Guidance which accompanies that Code stresses that mediation should be considered as part of the disciplinary process.  In the case of Westland Mental Health NHS Trust v Sarkar, the Trust attempted to do just that. 

Following a number of complaints from colleagues about Dr Sarkar’s behaviour, an investigation was started and Dr Sarkar was warned that disciplinary procedures may be commenced against him if the investigation found that he had acted as alleged.  When the nature of the complaints were disclosed to Dr Sarkar, he agreed to cease clinical work and to move to a different site so that he was not working with those who had complained about him, but he also raised counter-grievances against some of the colleagues who had complained about him.

Following the counter-grievances, the Trust tried to resolve both Dr Sarkar’s complaints and the complaints against him using its “Fair Blame Policy” which was a mediation type process.  The Trust accepted that if this process had been followed through to a successful conclusion, despite the seriousness of the allegations, Dr Sarkar would have received a first written warning, at worst.  However, during the mediation process someone suggested that Dr Sarkar’s behaviour was so serious that, whatever the outcome of the mediation, he should be referred to the General Medical Council for further disciplinary action.  Dr Sarkar, offended by this suggestion, withdrew from the mediation so the Trust then started disciplinary action against him;  the end result of which was that he was dismissed for gross misconduct.

An Employment Tribunal found the dismissal to be unfair.  It found that the decision to dismiss was not within the range of reasonable responses of a reasonable employer because the Trust had been prepared to consider and resolve the issues using mediation.  The Tribunal felt that the Trust would only have been prepared to do that if it considered the misconduct to be relatively minor.  In the Tribunal’s view, the Trust could not then change its mind and decide that the conduct was so serious that it amounted to gross misconduct when the mediation failed. 

The EAT has disagreed with this reasoning.  In the EAT’s view, while parties should be encouraged to try and use mediation, it is perfectly acceptable for an employer to revert to disciplinary proceedings if that mediation failed.  Although the EAT did not believe the use of mediation would preclude dismissal, the EAT did reiterate that the dismissal would only be fair if dismissal was a reasonable sanction and was proportionate to the allegations being heard during the disciplinary process.  In this case, the EAT ruled that dismissal was within the range of reasonable responses and that the attempts to mediate the matter before engaging the disciplinary process should not be seen as fundamentally undermining the disciplinary process. 

It is clear from the EAT’s judgment that attempts to mediate will be supported but the case is encouraging for employers who choose to explore the mediation route, particularly in the counter-grievance scenario, because it seems to establish that unsuccessful mediation will not prevent an employer from proceeding to dismissal in appropriate circumstances.  Although this case was decided before the new ACAS Code came into force, it does perhaps provide some guidance as to how mediation, when used in conjunction with disciplinary proceedings, will be viewed.

Back to Employment Law E-bulletin April 09

Read main article on repetitive short term absence

April 09