Employment Law Case Update - November 2015
Burnetts' employment law & HR team provides a summary of the latest employment law cases including employee dismissals and long term sickness.
Two employees in a fight – can you sack just one?
Possibly said the Employment Appeals Tribunal (EAT) in MBNA Limited v Jones.
Mr Jones and Mr Battersby were both employees of MBNA Limited and attended a corporate event, held by the bank in November 2013.
Both Mr Jones and Mr Battersby started drinking alcohol before the event began and continued to do so throughout the evening.
At one point, Mr Battersby kneed Mr Jones in the back of his leg; Mr Jones retaliated by licking Mr Battersby’s face. Staff who witnessed this incident described it as “fun/banter”.
Later in the evening Mr Jones put his arms around Mr Battersby’s sister, who was also attending the event. Mr Battersby came over and kneed Mr Jones in the leg again. This time Mr Jones’ reaction was to punch Mr Battersby in the face.
Mr Jones left the event with some other colleagues and went on to a nightclub. Mr Battersby followed him to the club and sent a series of text messages to Mr Jones threatening him with violence and suggesting that he come outside so that the matter could be settled. However, Mr Jones didn’t receive the messages until the next morning. He stayed inside the club and Mr Battersby eventually gave up waiting.
When the incident came to light, both men were suspended and disciplined.
Mr Jones was dismissed. MBNA accepted that Mr Battersby had kneed him, but said that this was not done with any force or aggression and had not been sufficiently serious provocation so as to warrant the punch in the face in response. Mr Battersby, on the other hand, was not dismissed. He was given a final written warning for sending text messages of an "extremely violent" nature but it was accepted in his case that the texts had only been sent after and as a result of having been punched in the face.
Mr Jones brought a claim for unfair dismissal. The Tribunal found that the decision to dismiss Mr Jones but not Mr Battersby was unreasonable. The Tribunal did not think that it was fair to draw a distinction between the behaviours of the two men.
MBNA appealed and, in a positive decision for employers, the appeal has been upheld by the EAT. The EAT recognised that there may be a range of reasonable ways in which an employer may react to a particular event and stated that, for a decision to be classed as inconsistent, the circumstances surrounding the different disciplinary matters needed to be “truly parallel”. The EAT felt that, in this case, there was a distinction between a deliberate punch in the face and a threat that was never carried out. As a result the EAT decided that the employer had been entitled to come to a different conclusion in each case.
This case doesn’t create any new law but it is a helpful reminder that, while it is important to be consistent in decision making, dismissal decisions won’t be found to be inconsistent (and therefore unfair) unless the circumstances are almost identical.
Long term ill health – how long do you have to wait?
The answer still isn’t clear but the EAT decision in Monmouthshire County Council v Harris seems to suggest that, as long as the employer has given some thought to the question, a decision that the employer can’t wait any longer is likely to be upheld.
Mrs Harris had been employed by Monmouthshire County Council since 1992. She suffered from a range of chronic conditions and was considered to be disabled. As a reasonable adjustment, the Council had agreed to allow Mrs Harris to work from home during early mornings and late afternoons and all day on Friday.
At the end of August 2010, Mr Austin became Mrs Harris’ new line manager. Mr Austin and Mrs Harris did not get on. Matters came to a head in January 2013 when Mr Austin called a meeting at short notice on a day when Mrs Harris should have been working from home. Mrs Harris went off sick, never to return.
An Occupational Health advisor was instructed but felt unable to give any clear indication as to when Mrs Harris might be able to return to work.
The Council maintained appropriate contact with Mrs Harris during her absence and at the beginning of May 2013 began to suggest that it would be unable to support an “indefinite” absence. The Council failed to state clearly that Mrs Harris was at risk of dismissal but a month later, after just 6 months of absence, Mrs Harris was dismissed on the grounds of ill health capability.
The Employment Tribunal found this to be an unfair dismissal and felt that the decision to dismiss had been discrimination arising from a disability.
The Council appealed and, in another positive outcome for employers, the EAT overturned the Tribunal’s findings deciding that, when making its decision, the Employment Tribunal should have considered whether the employer could reasonably be expected to wait longer for the employee’s health to improve before deciding that the decision was unfair. In circumstances such as this, where up-to-date medical evidence provided “an uncertain and pessimistic prognosis”, the EAT felt that the employer was entitled to decide that it had reached the end of the line.
The EAT also felt that the finding of discrimination had been unfair. In the EAT’s view, the Council had established a legitimate aim (the safeguarding of public funds and the need to consider the stress on the remaining Educational Welfare Officers) and had shown that it did not have the resources to pay for cover for Mrs Harris during a sustained period of absence. The EAT felt that dismissal in such circumstances was a proportionate means of achieving the legitimate aim identified.
For employers the case is a reminder that you don’t have to wait forever. Provided there is a rational explanation as why the decision to dismiss is taken at a particular time, and there is medical evidence which says either that the employee is unlikely to return to work, or that it is unclear as to when a return might be possible, then the dismissal will be fair. Furthermore, the dismissal won’t be discriminatory as long as the employer is able to show that it cannot keep a post open. The larger the employer, the more difficult it might be to do this but the Harris case shows that it can be done.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Friday 13th November 2015