Reward insight
constitute gross misconduct. The employee worked as a principal pharmacist in the pharmacy department of HM Prison Wandsworth and became a member of the senior management team. The prison service secured funding to create the institution of a central pharmacy unit which would alter the way services were provided to reflect how they were provided in the community. A meeting was held in July 2011, after which the employee was subjected to a disciplinary procedure on the basis of her conduct at the meeting. The employee faced three allegations. The first that she had carried out a telephone conversation which suggested she would decline what the other participants at the meeting wanted to do and, when she was informed her conversation was inappropriate, she responded in a hostile manner. The second allegation was that she failed to co-operate, support and lead the major service change; and the third, that she had previously misconducted herself towards a technician. The disciplinary was concluded in May 2012 when the disciplining manager decided the employee should be dismissed for gross misconduct. She accepted the employee had behaved as alleged in relation to the first two allegations but took into account matters relating to a second meeting which were not put before the employee. The decision was communicated to the employee by letter referring to “other factors” which the employee had not been made aware of. The employee appealed and the appeal hearing was conducted by a panel chaired by a senior director along with another director and a general manager. The employee objected to the director’s involvement as she had previously been involved in the issue but this was rejected. The appeal panel reheard the case, limiting their consideration to the first meeting, and upheld the decision to dismiss as they thought training or a final written warning would not be appropriate. The employee brought numerous claims including one of unfair dismissal. The ET found that the original dismissal was procedurally flawed in many aspects because the decision-maker had taken matters into account that were not put to the claimant in advance or during the disciplinary process. That meant she could not have held a reasonable belief in these points, so the dismissal fell outside the range of reasonable responses. However,
contracts when requested to do so which referred to him as a “contractor retained on a non-exclusive ‘when needed’ basis” and a “subcontractor entitled to supply his services to any third party”. The second contract, signed in 2016, allowed Boxer to assign or subcontract the courier services to another party; however, the company had to be reasonably satisfied that the subcontractor had the required skills, qualifications and licences to provide services to the required standards. Boxer supplied his own bike, mobile phone and protective equipment with the company providing a radio and palm computer. He mostly worked five days a week for nine hours a day when he was expected to remain available all day; picking up jobs allocated and delivering these in the order specified. He was expected to tell his controller when he planned to take time off from work and this was usually accommodated by the business. Boxer brought a claim for two weeks of holiday pay. Before determining whether the claimant was entitled to receive holiday pay, the ET had to determine the status of the individual. Under the legislation, a person can be a worker if they have entered into a contract to personally perform any work or services for another party who is not a client or customer of the profession or business undertaking carried on by that individual. The ET found that, although the claimant provided his own tools and equipment, he was not providing services on his own account as a business and was not entering into business contracts with clients or the company themselves. They reached this conclusion by taking into account a range of factors including: ● there was no negotiation or tendering involved in the contractual process ● the business model essentially required the claimant to work five days a week under their control ● any flexibility was pre-arranged with notice ● the claimant was expected to stand by in between jobs to wait for the next one and had to receive permission to move location, and ● in reality, substitution was not permitted because of the nature of the business. As the claimant was deemed to be a worker, working from the time he signed into the system in the morning until he logged off, he was entitled to paid annual leave. n
the ET found the appeal panel was entitled to reach the decision they did by having proper consideration to all the evidence. The appeal process was fair and had the effect of curing the deficiencies at the dismissal stage; so, taken overall, the dismissal was fair. The claimant appealed.
...the ET had to determine the status of the individual
The EAT reiterated that the ET is bound to consider the overall process and this was not a case where the initial unfairness at disciplinary could not be remedied at appeal. The EAT considered whether the appeal stage was flawed because of the director’s earlier involvement. They judged that this was a very minor involvement a year and a half earlier which she had forgotten and said that requiring employers to avoid any link where senior managers mentor and manage employees and sit on disciplinary or appeal panels would be both unrealistic and undesirable. They also judged that, although the general manager was junior to the original decision-maker, this had to be seen in the context of being present on a panel of three where the other two were senior figures and all received independent advice. When viewing the categorisation of the second allegation as conduct, the EAT considered that where an employee in a senior management role leading an operational change has been found to lack commitment and failed to cooperate, support and lead this change, this can be properly described as a conduct issue. In this case, the claimant was hostile to the policy and was motivated by her disagreement with it so her conduct was deliberately resistant and wilful. Boxer v Excel Group Services Ltd (in liquidation) The ET has considered another employment status case brought against a ‘gig economy’ company. Although these are only at tribunal stage, this is another judgment which goes in favour of the worker due to the reality of the arrangement not supporting the idea that they are self-employed. The individual started working for Excel in September 2013. He signed two
33
Issue 31 | June 2017
| Professional in Payroll, Pensions and Reward |
Made with FlippingBook - professional solution for displaying marketing and sales documents online