Reward insight
Whittaker v Governing Body of Sutton Oak CoE Primary School A recent case decided at ET has highlighted the importance of following a fair and reasonable procedure when dismissing an individual, even in cases where the employee has appeared to be in clear breach of rules regarding conduct. The case in question centred around the conduct of the employee who worked as a primary school teacher. The teacher had previously received a warning in 2002 relating to unprofessional conduct with a student. It was decided at the time that this was down to his inexperience as a recently qualified teacher and he was allowed to remain on staff, on the condition that he would not be alone with a pupil in the future. In the years that followed the teacher developed a strong reputation at the school as an educator; however, in 2015 he was discovered alone with a male pupil in a classroom by the head teacher as he was gifting the pupil some chocolate. The employee was suspended pending an investigation into allegations that he engaged in inappropriate conduct with children and knowingly breached management instructions. The investigation into this matter was conducted by the head teacher and the investigation report included a conclusion that the behaviour could potentially ‘constitute the early stages of grooming’. Between November 2015 and May 2016 the employee was subjected to multiple disciplinary hearings conducted by the governing board of the school, during which the teacher admitted that he had failed disclose this one-to-one meeting with the school’s management. He did stress, however, that two teaching assistants were aware of the meeting and it was purely to address behavioural concerns with the pupil. Following the conclusion of the disciplinary process, the teacher was dismissed. The employee brought several claims to the ET, including unfair dismissal and direct discrimination on the grounds of sexual orientation. Although the ET accepted that the employee had knowingly behaved inappropriately they took issue with the disciplinary process conducted by the employer. They noted that the excessive number of disciplinary hearings had created an overly elongated suspension period which meant it was increasingly unlikely
the employee would have been able to return to his role. Even though it was alleged internal reviews of the suspension had taken place, these did not involve the employee or his trade union representative. The ET also highlighted a number of issues with the investigation, specifically that too much weight had been given to the incident in 2002 considering the employee’s professional behaviour since then. They also criticised the head teacher’s involvement in the investigation as this person was the only witness to the alleged incident and, therefore, not impartial. Finally, the ET concluded that the employer had discriminated against the employee by assuming a link between the sexual orientation of the homosexual employee and the potential for him to participate in grooming the male child. They added that such a link would not have been assumed if the employee was heterosexual; therefore, this was less favourable treatment based on his sexual orientation. Ultimately the ET upheld Whittaker’s claim for unfair dismissal due to the numerous procedural flaws committed by the employer and direct discrimination. This decision highlights the need for all disciplinary processes to be conducted in an appropriate manner, working to guarantee unbiased decision-making wherever possible. A failure to do so can result in costly tribunal claims, especially where a decision to dismiss could be career-ending. ...‘notice’ could reasonably have referred to a transfer from one department to another East Kent Hospitals University NHS Foundation Trust v Levy This case centred on whether an employer had a duty to ascertain the reason behind an employee’s ambiguous resignation letter and if a failure to do so was tantamount to unfair dismissal. The employee had worked in the employer’s records department for ten years before applying for a separate position within their radiology department. The company had an internal policy which required any employee who was moving
to a new department to resign from their current role and reengage in the new position. After receiving a provisional offer for the radiology role, the employee was involved in an altercation with a colleague and submitted a resignation letter to her current manager stating she was resigning with notice. The manager accepted this resignation; however, a few days later the provisional offer from the radiology department was withdrawn due to the employee’s high absence levels. Though the employee asked to rescind her resignation, her manager did not agree to this after receiving advice that he was under no obligation to do so. Instead, the manager confirmed that her employment would end on the previously-stated date and the employee owed a large amount of overtaken holiday leave. The employee brought a claim of unfair dismissal to the ET which upheld her claim. The ET ruled that it was the employer that had ended Levy’s employment by dismissing her. As it was company policy to submit a resignation when moving departments, it would have been clear to the employer that this was the intention of the employee and she wasn’t terminating her employment completely. Whilst they accepted the employer’s argument that the wording used in the resignation letter was unclear, the ET ultimately ruled that a reasonable employer would have considered the context of the situation and understood the employee’s true intentions. The employer appealed this decision to the EAT arguing the ambiguous nature of the resignation letter and the employee’s clear use of the word ‘notice’. The appeal was unsuccessful because the EAT held that in the specific circumstances of this case, notably the employer’s internal policy for job transfers, the use of ‘notice’ could reasonably have referred to a transfer from one department to another. This case reminds employers that when faced with a resignation letter they may be required to clarify the employee’s intentions. If the wording of the letter is ambiguous then a follow up meeting can be held to discuss the letter and the next steps to be taken. Even if the employer would prefer the employee to leave the company for sound business reasons, they need to take care to avoid dismissing the individual without following a fair and reasonable procedure. n
37
Issue 45 | November 2018
| Professional in Payroll, Pensions and Reward |
Made with FlippingBook - Online magazine maker