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dereliction of duty was “so grave and weighty” as to amount to a justification for summary dismissal. Applying this to the case, the Court of Appeal decided that because the claimant was responsible for the success of the procedure, once it became known to him that the integrity was being undermined it was his duty to remedy this and the steps he did take were not sufficient. As the respondent placed so much significance and importance on the integrity of the procedure, the High Court was entitled to find this was a serious dereliction of duty capable of constituting gross misconduct. Arnold Clark Automobiles Ltd v Spoor Most employers are aware that a fair dismissal requires an employer to act reasonable in all the circumstances. The employment appeal tribunal (EAT) have considered whether a fair dismissal was reached when dismissing for an act of gross misconduct. The claimant worked for the respondent for over 42 years as a motor vehicle technician. In April 2015, there was an incident where the claimant lost his temper with a colleague and momentarily grabbed his colleague in the vicinity of his neck. The claimant apologised but the colleague reported the incident to their manager. The manager called them both in to a meeting to discuss the incident. It was decided that the claimant would be issued with a letter of concern under the employer’s informal disciplinary procedure. A copy of the letter was sent to the HR department along with an email saying there had been some “handbags” and the letter would be issued to the claimant. After seeing that the letter contained an incident of physical violence, the HR adviser decided to commence a formal investigation. After an investigation interview, the claimant was suspended and informed the company viewed the incident as gross misconduct. At the end of the disciplinary hearing, the claimant was informed that he was being dismissed without notice because physical violence of any nature was not acceptable within the business. The claimant appealed against his dismissal but the decision was upheld; the company disciplinary procedure listed physical violence as gross misconduct so the outcome was fair and reasonable. The
claimant claimed unfair dismissal. The employment tribunal found that the investigation was not one which could be said to be within the range of reasonable responses open to a reasonable employer in all the circumstances. They failed to speak to the manager or carry out an assessment of the level or degree of physical violence. The tribunal judged that the claimant was unfairly dismissed because no reasonable employer would have dismissed him having proper regard to all of the circumstances, including his previous record. ...assertion that his religious belief required five weeks’ leave to return to Sardinia was not genuine... The employer appealed on the grounds that the tribunal had substituted its own view. The appeal was dismissed. The EAT concluded that there was physical violence that amounted to gross misconduct under the disciplinary procedure, but there was a failure to have regard to all the surrounding circumstances. The EAT also decided that there was no evidence that the employer operated a zero-tolerance policy towards physical violence; in fact, the disciplinary procedure was expressly stated in the contrary as it said employees would “normally” be dismissed in cases of gross misconduct showing there was discretion. Gareddu v London Underground Ltd The EAT has looked at whether a refusal to grant an employee five weeks of annual leave to attend religious festivals constituted indirect discrimination. The claimant was a roman catholic originally from Sardinia. He said that his religious beliefs required him to return to Sardinia every year in August to attend religious festivals with his family over a five-week period. Between 2009 and 2013, the claimant’s holiday requests for five weeks of annual leave were accepted. In 2013, after a change of management, the claimant was told that he would not
be able to take five weeks’ continuous leave in the following year because it was unfair to other members of staff in his small team, especially during the school summer holiday period. The claimant was allowed to take five weeks of holiday in 2014 because he had already made arrangements but he was told that this would be the final time the request was granted. The claimant brought a grievance which was initially unsuccessful so he appealed against this decision. The appeals chair concluded that two weeks’ leave was an ordinary request, blocks of three weeks’ leave were not rare but needed discussion because of the potential to create business difficulties and blocks of leave for more than three weeks were rare and were granted for rare events such as major religious observances. They decided it was normal custom and practice that only requests up to fifteen days’ consecutive leave were granted and this may disadvantage a person of a religion which required participation in festivals over a period of more than three weeks. However, they found that this did not apply to the claimant because his request was to attend festivals of a purely personal nature. The claimant made a claim of indirect religious discrimination. The employment tribunal looked at whether the employee’s attendance at a series of festivals occurring between the end of July and the start of September was a manifestation of a religious belief. The tribunal took in to account that the claimant’s attendance at these festivals was entirely dependent on the views of his family and friends and the number of festivals attended differed each year. Therefore, his assertion that his religion required attendance at five weeks of religious festivals was not made in good faith. The claim was dismissed and the claimant appealed. The EAT agreed with the tribunal’s decision; it was not perverse. They commented that the tribunal did not find that the asserted religious manifestation could be genuine, simply that on the facts the claimant’s assertion that his religious belief required five weeks’ leave to return to Sardinia was not genuine and not made in good faith. They also judged that the motivation behind the leave request was to spend time with his family; therefore, the refusal of leave was not discriminatory. n
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Issue 29 | April 2017
| Professional in Payroll, Pensions and Reward |
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