Employment Law Case Update - October 2014
Burnetts' team of employment law solicitors examine the latest case law developments.
Is it always OK to investigate?
When a potential disciplinary matter comes to light, suspension and investigation are often the first responses but in the case of Coventry University v Mian, the employee argued that the University’s decision to investigate was so unreasonable that it amounted to a breach in their duty of care towards her.
In 2007 the University received a complaint about a bad reference that had been given for a former employee. The reference in question appeared to have been written by Dr Mian. The University accepted that the reference provided had been flawed in some important respects including the fact that it significantly overstated the ex employee’s qualities and qualifications. An investigation was launched.
The reference request had been sent to the University in the correct way, but a senior colleague expressed reservations over whether Dr Mian’s signature was genuine. However draft references were found on Dr Mian’s computer which contained similarly inaccurate and misleading information to that which had been included in the reference which was now being challenged.
Dr Mian denied writing the reference. She claimed that the versions on her computer were drafts produced by the ex employee but that she had refused to use them. The investigating officer wasn’t persuaded by this and recommended disciplinary proceedings be initiated.
Dr Mian was then signed off sick and the disciplinary hearing, which was taken by an independent assessor, Professor Noon, was delayed by several months. Dr Mian did not attend the hearing but provided a written response to the allegations. Her union representative argued that while she had been "guilty of stupidity and naivety", she had not been complicit. Professor Noon stated that he had found the case "not easy", but dismissed the allegations against Dr Mian. However, by this stage Dr Mian had found a new job elsewhere. Nevertheless, she brought a claim against the University arguing that, in commencing disciplinary proceedings, the University had been in breach of contract and/or negligent.
At first instance, the court decided in Dr Mian’s favour. However, the University has now successfully appealed against that decision.
In the view of the Court of Appeal, the judge had confused the question of whether the allegations made in the disciplinary proceedings were true with whether there were reasonable grounds to suspect that they were at the point that the disciplinary proceedings began. The test that the judge should have applied was whether the decision to instigate disciplinary proceedings had been "unreasonable" in the sense that it had been outside the range of reasonable decisions open to an employer in the circumstances. The Court of Appeal specifically pointed out that reasonable people could reach different judgments on the same question and it was possible to be wrong without being negligent.
The Court felt that, in this case, a reasonable employer could have concluded at the end of the investigation that there was a case for Dr Mian and that, although the University ultimately decided that Dr Mian was “not guilty”, the University had not been negligent in moving from one stage to the next.
Although the Court ultimately sided with the employer in this case, it is another example of the dangers inherent in taking disciplinary action. That it not to say that disciplinary action should be avoided but this case does highlight the need for thorough and reasonable investigations first. Any employers looking at whether their investigation is good enough, or who want independent assistance with an investigation, should contact Natalie Ruane at Burnetts Solicitors on 01228 55 22 22.
Reasonable adjustments and warnings
In the case of General Dynamics v Carranza, the Tribunal was asked to consider whether ignoring a warning was a reasonable adjustment that should be made to assist someone with a disability to remain in employment.
Mr Carranza suffered from abdominal problems which the employer accepted was a disability, and which caused many of the absences. Although adjustments had been made, including disregarding most of the disability related absence when assessing whether absence triggers had been reached, Mr Carranza had enough sickness absences for other reasons to trigger the his employer’s absence management process. He received a warning, and then, in September 2011, a final written warning. By that stage his absence over the last three years had amounted to more than 41 weeks of which nearly 37 weeks were disability-related.
Mr Carranza had two further short disability-related absences (which did not prompt any action by the employer) before suffering a shoulder injury which caused him to be absent for three months. This once again triggered the formal procedure and a hearing. The employer took into account advice from occupational health, which was that the shoulder injury would last only a few months, but also considered evidence relating to the disability condition, concluded that similar patterns of non attendance were likely in the future and dismissed Mr Carranza. Mr Carranza brought claims of disability discrimination and unfair dismissal.
The tribunal found that the employer had failed to make reasonable adjustments. It identified the relevant "provision, criterion or practice" (PCP) as a general requirement for consistent attendance at work, which put the claimant at a substantial disadvantage compared to non-disabled persons because his condition made it more likely that he would be absent. The Tribunal decided that the employer should have disregarded the final written warning. It had disregarded disability-related absence in the past and it would have been reasonable for it to do so again so as to keep the employee in work.
The employer has now successfully appealed against this decision.
The EAT was happy with the PCP which had been used. However, the EAT thought it was too difficult to identify the "step" which it was reasonable for the employer to have to take to prevent the disadvantage caused by that PCP. The EAT went on to specify that leniency (ignoring certain absences) shouldn’t create any obligation to ignore future absence and drew parallels with recent conduct cases, noting that there are limits to the extent to which an employer can be expected to revisit what took place at an earlier stage in the process. The EAT saw no reason in this case for the employer to doubt the rational for the Final Written Warning and so saw no reason why it should be discounted just because Mr Carranza was disabled. The EAT felt that the employer had been entitled to dismiss in this case.
For employers, this decision is positive but it does highlight the ever present danger involved in dismissing disabled staff on ill health grounds. Extra caution should always be taken in such cases and employers should consider getting legal advice at an early stage. Burnetts Solicitors would be happy to help any employers in this situation. Call us on 01228 55 22 22.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Monday 27th October 2014