The EAT overturned that decision and held that the dismissal was fair. The EAT said that such cases fall to be determined according to the ordinary principles of law, agreeing with Game Retail Ltd v Laws . Having found that the procedure was fair, the employment tribunal must have concluded that the Claimant's mitigation was taken into account (which the EAT thought it had), and the employment tribunal had substituted their view for that of the employer.
Choice of Companion at Disciplinary Hearing 28 August 2015
Was the denial of choice of representative for disciplinary investigation beyond statutory or contractual entitlement a breach of the implied term of trust and confidence?
Yes, on the facts, held the High Court in Stevens v University of Birmingham .
With thanks to Daniel Barnett’s Employment Law Bulletin for the following case summary:
The Claimant academic at the Defendant University was the subject of allegations regarding his role as Chief Investigator to clinical trials of patients suffering with diabetes. He was later invited to a disciplinary investigation. His employment contract entitled him to the statutory minimum choice of representation (trade union representative or colleague). However, he was not a member of a union, nor did he have colleagues employed by the University suitable to accompany him. He had, however, from the date of the allegations been assisted via the Medical Protection Society ('MPS') by a representative, Dr Palmer. The court held that the University was breaching the implied term of trust and confidence by failing to permit Dr Palmer to represent him due to (a) the objective perception of inequality of arms in the circumstances, (b) the seriousness of the allegations, (c) that the MPS served a similar function to a union and (d) the Claimant had been permitted the assistance of Dr Palmer to that point. The court went on to grant a declaration to that effect.
Reed recruitment agency loses travel expenses appeal 1 September 2015
Readers may recall the case about recruitment agency Reed due to the huge tax bill involved. Reed was found liable for a tax bill in excess of £150 million after it lost a tribunal appeal over a salary sacrifice scheme for its temporary workers. The case concerned travel and subsistence payments Reed made to 500,000 agency staff between 2001 and 2006, through a salary sacrifice scheme that the tribunal ruled was not valid. In 2012 HMRC were pursuing £158 million in unpaid taxes and interest – although Reed disputed this figure and appealed the decision. Reed claimed that their temps were employed on a single contract, covering them to work at multiple client locations, and qualifying them for travel contributions that were not taxable. But HMRC argued that each assignment constituted a separate workplace, and temps would therefore incur “ordinary commuting” costs that were not tax-deductible expenses. It also maintained that a salary sacrifice scheme was not “an effective one” if an employer reduced salaries but paid the remainder in another form, such as ineligible expenses. The first tier tax tribunal subsequently ruled in HMRC’s favour. It agreed that each assignment represented a separate contract of employment, and that the salary sacrifice scheme was not a valid one as workers could opt out. The tribunal also noted that many Reed temps would have been unaware they were giving up part of their salary through the arrangement, because of the confusing description in their staff handbooks.
Reed appealed against the tribunal’s ruling and the appeal was dismissed following a hearing in July 2015.
CIPP comment This case should act as a reminder to those employers who have entered into salary sacrifice arrangements with their employees, of the importance of amending contracts of employment to accurately reflect any new agreements. And importantly to avoid any form of litigation, employers should ask HMRC to confirm the tax and NICs implications, after the salary sacrifice arrangement has been put in place.
CIPP Policy News Journal
25/04/2016, Page 75 of 453
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