REWARD
shows that any dismissal still needs to be carried out fairly. The claimant, in the case of Difolco v Care UK Community Partnerships Ltd, was employed as a care assistant working with vulnerable adults. She was arrested on suspicion of murder and placed in police custody. The claimant’s daughter called the respondent to say that the claimant would not be in work because they had Covid-19. News of the arrest, including the claimant’s name, age and hometown, was reported in a national newspaper; however, the identity of her employer was not. Following this, the claimant’s daughter reported to the respondent that the mother had been arrested and charged with murder. The claimant was suspended on full pay, pending an investigation into what the respondent referred to as “a breakdown in trust and confidence and potentially bringing the company into disrepute following your arrest and appearance in court for facing murder charges”. At the investigation meeting, the claimant disclosed that she had previously been arrested for murder, but the formal charge didn’t take place until ten months later. The claimant also admitted at this time that when her daughter called in sick for her, she was in fact in a police cell and didn’t have Covid-19. A disciplinary hearing was arranged to discuss the allegation that there had been a “serious act causing a breakdown in trust and confidence and potentially bringing the company into disrepute including failure to report circumstances concerning arrest and court appearance for serious charges including murder”. Despite the allegation relating to “bringing the company into disrepute”, there was no discussion in the hearing of the risk of reputational damage resulting from the claimant’s arrest and murder charge. The claimant was dismissed with notice and brought various claims including unfair dismissal. The tribunal found that there had been no actual assessment of the risk of reputational damage at any point during the proceedings. Nor had there been any discussion with the claimant on this risk. This, the tribunal held, meant there was no adequate “exploration” of the risk, which should have taken place even if
the risk were “reasonably obvious” and alternatives to dismissal should have been part of that discussion. It was held that no large employer with a dedicated human resources function (as was the position of the respondent) acting reasonably in the circumstances would have dismissed by reason of the risk of reputational damage without having first discussed the matter with the employee, and as such the decision to dismiss fell outside the range of reasonable responses and was therefore unfair. The claimant was awarded a basic award of £1,862.07 but the compensation element was reduced to nil. This was because it was found that had the risk of reputational damage and alternatives to dismissal been discussed with the claimant, the dismissal would have been fair. “The tribunal found that there had been no actual assessment
When the role of detective inspector needed filling, instead of following a recruitment process, it was given to a police sergeant from an ethnic minority group. The ET had to decide whether it was lawful positive action or whether it was discriminatory. In the case of Turner-Robson and others v The Chief Constable of Thames Valley Police, a job advert for the role of detective inspector in the priority crime team was due to be advertised but before it was, the decision was made to move a police sergeant from an ethnic minority group into the role, without any competitive process. The claimants, who were white British, were interested in the role but weren’t offered the opportunity to apply. They brought claims for direct race discrimination. The respondent stated that it had in place a Positive Action Progression Program (PAPP) for candidates at the substantive rank of sergeant who belong to an ethnic minority group and met certain other conditions. It arranged additional courses to be provided to officers to enable them to achieve the rank of inspector and subsequently chief inspector. The respondent argued that the decision was an act of positive action pursuant to s.158 of the Equality Act 2010. It claimed that its actions were a proportionate means of achieving a legitimate aim of enabling or encouraging persons from minority ethnic backgrounds to reach senior ranks. The tribunal concluded that the decision to move the police sergeant into the detective inspector role without undertaking any competitive exercise was positive discrimination. It went beyond mere encouragement, disadvantaging those officers who didn’t share the sergeant’s protected characteristic of race and who were denied the opportunity to apply for the role. The claimants were treated less favourably than the police sergeant because they weren’t afforded the opportunity to apply for the role having expressed interest in doing so. The tribunal held that it was not a proportionate means of achieving a legitimate aim. It was, therefore, direct race discrimination and the claim succeeded. n
of the risk of reputational damage at any point during the proceedings”
This was as a result of the ET finding that the risk of continuing to employ the claimant couldn’t be mitigated by transferring their employment to another role, and the cost implications of continuing to leave the claimant on suspension pending the outcome of the trial. This case is a timely reminder for employers not to jump straight to dismissal. While it’s understandable that employers would be concerned by such events this doesn’t override the need to follow the principles of natural justice and the requirement to be fair and reasonable, as set out in the Employment Rights Act 1996. Promotion of sergeant from ethnic minority without competitive process was discriminatory
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| Professional in Payroll, Pensions and Reward |
Issue 105 | November 2024
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