Mr Simmonds was disciplined for giving staff a £15 Christmas bonus in cash instead of a bottle of wine up to the value of £15 as instructed. Because he was already under a final warning, he was dismissed. The final warning was the result of an occasion when Mr Simmonds had asked his wife to deposit the club's takings while he waited outside in the car, having been unable to park near the bank. The majority of the tribunal, finding the dismissal fair, had failed to consider whether a final written warning in these circumstances was consistent with the club's disciplinary procedure. Mr Simmonds' appeal was allowed, and the matter remitted to the tribunal to consider whether the final warning was manifestly inappropriate. The judgment notes at paragraph 20 that 'manifestly inappropriate' is a higher threshold than the test applied to the reasonableness of a dismissal.
EMPLOYER MUST CONSIDER WHETHER A REQUEST FOR DISMISSAL IS REASONABLE – BEFORE DISMISSING!
28 February 2013
Is it reasonable for an employer to dismiss an employee at the behest of a third party, without first considering whether the request is justified?
No it isn’t, says the Employment Appeals Tribunal in Bancroft v Interserve and as reported in Daniel Barnett’s Employment Law Bulletin.
The Respondent had a contract with the Home Office to provide a catering service to a bail hostel. Under the terms of that contract, the Home Office could "require the removal of contractor staff whose admission would be undesirable", without giving reasons. Following a falling out between the Claimant and the manager of the bail hostel, the Home Office wrote to the Respondent asking that the Claimant be replaced. The Claimant was subsequently dismissed, without any inquiry into the justification for the request. His claim for unfair dismissal failed in the employment tribunal. The EAT held that the factor of whether there will be an injustice to the employee, and the extent of that injustice, will be an important consideration in deciding whether a dismissal was fair. The employment tribunal had failed to address their minds to the issue of why the Respondent did not consider the rights and wrongs of the difficulties between the hostel manager and the Claimant. In those circumstances, the employment tribunal had not properly inquired as to whether the Respondent had done "everything they could to mitigate the injustice caused by the third party's request that the Claimant no longer work on their premises". Having failed to make all the necessary findings of fact, the decision could not stand and the case was remitted to the employment tribunal.
THE USE OF COMPETENCY ASSESSMENTS IN REDUNDANCY SELECTION
12 March 2013
The EAT have been considering the fairness of assessing an employee’s capability purely on the basis of competency tests whilst carrying out redundancy selection.
The EAT were asked is it fair to carry out a redundancy selection exercise where employee capability is assessed entirely on the basis of competency tests? As reported in Daniel Barnett’s Employment Law Bulletin the answer appears to be - not necessarily - particularly if no account has been taken of past performance.
CIPP Policy News Journal
12/04/2013, Page 80 of 362
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