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birketts ilpEmployment Law Updates
If you would like to discuss anything you have read here, or wish to discuss another matter of Employment Law then please contact Jeanette Wheeler - Head of Employment Team, Norwich. 
Tel: 01603 756427 |
Issue 97 - December 2007 A number of reported cases in November 2007 will be of particular interest to employers. Drunkenness at work A problematic issue for employers is how to deal with drunkenness at work – is it a conduct or a capability issue? The boundaries are blurred where the employee is an alcoholic. This is categorised as an “illness” for employment law purposes and a straightforward application of the disciplinary procedure in those circumstances is likely to found to be unfair. UKEAT/0145/07/DM demonstrates the difficulties and procedural pitfalls of dismissals for alcoholism. The employee was an alcoholic and was dismissed by his employers for twice turning up for work drunk. Following the initial incident of drunkenness, the employer advised Mr S that drinking on duty was a serious disciplinary offence, however, disciplinary proceedings would be put on hold if Mr S agreed to a referral to, and co-operated with, the Occupational Health Service (OHS). Mr S accepted his alcoholism but was reluctant to agree to the referral. Eventually he did so and, at a later date, the disciplinary proceedings were held and a final written warning imposed. Four weeks after this, Mr S was again found to be drunk at work. He claimed, falsely, that he was intoxicated from alcohol consumed the previous evening, and that the OHS had referred him for counselling. The OHS had not made such a referral on Mr S’s behalf. A further disciplinary hearing was scheduled but shortly before that Mr S failed to attend for an appointment with the OHS. Atthe disciplinary hearing Mr S argued that the proceedings should be adjourned as he was cooperating with the OHS. The employer disagreed and, taking into account the previous written warning, dismissed Mr S for being unfit to work through alcohol. An appeal hearing upheld the dismissal. The Tribunal found the dismissal to be procedurally unfair for two reasons. Firstly, the employer had failed to follow the terms of its own policy on dealing with alcoholism and had not disclosed this to Mr S until the day prior to his dismissal, notwithstanding an obligation within the policy itself that it should be circulated to all staff. Secondly, the employer had failed to make it clear to Mr S what was expected of him in seeking treatment for his alcoholism. This case demonstrates how difficult this issue can be for employers to deal with. Poor communication by the employer in this case had left the employee in doubt as to whether he was doing all that was required of him. The important point is that employers should be very clear to the employee that they are seriously considering dismissal if that is the case and further, to make it clear to the employee what steps are required of him/her to avoid such an outcome. The good news is that the EAT found that the employee’s compensatory award could be reduced as his conduct was capable of being a contributory factor (despite alcoholism being classed as an illness) and remitted the case to the Tribunal to consider the level of contribution further. Redundancy update Two redundancy cases will also be of interest to employers. The first is Home Office v Evans [2007] EWCA Civ 1089 which is a Court of Appeal case dealing with the exercise of mobility clauses in redundancy situations. Having decided to close Immigration Control at Waterloo, the Home Office sought to use the mobility clauses in Immigration Officers’ contracts to redeploy them to other posts, rather than make them redundant. The Court of Appeal held that the Home Office were entitled to do this as they had made it clear from the time of the announcement that Immigration Control was to close and that they intended to invoke the mobility clauses in the employees’ contracts. As such, the Home Office were not trying to “dodge” any liability to make redundancy payments and were legally entitled to invoke the clause. There are two key points to note about this decision: the first is that the Home Office had operated the mobility clauses reasonably. As part of the process they had tried to engage with staff individually to offer alternative posts that “best matched individual preferences with available vacancies”. The employees concerned had refused to enter into this process despite repeated attempts by the Home Office to meet with them. Perhaps more importantly, the Home Office nailed their colours to the mast from the outset of the procedure and did not try to rely on the exercise of the mobility clauses purely as a defence to redundancy payments claims. They had not tried to “dodge” from one procedure to another and had been consistent throughout. The second redundancy case of interest is Optare Group Ltd v Transport and General Workers Union [2007]. Here, the employer proposed to make twenty employees redundant which would normally trigger an obligation for the employer to consult with the Union regarding the proposals. However, three of the twenty employees volunteered for redundancy. The employer relied on the fact that the three volunteers had not been “dismissed” and therefore there was no need to undertake collective consultation with the remaining seventeen. The Employment Appeal Tribunal held that the three volunteers had still been “dismissed” and the employer had failed to comply with its statutory obligations to consult collectively on the proposals. The rationale of the EAT appears to be that the three volunteers did not put themselves forward for redundancy prior to the redundancy selection exercise. They had volunteered because they were invited to do so and in such a situation their resignations could still amount to a dismissal. Quick Fire The latest Employment Bill to appeal the statutory dispute resolution procedures has finally been published. Sadly, it is unlikely to become law until 2009 but it is good to see common sense prevail! Early Bird Sessions – January 2008 The January Early Bird sessions are being held on Friday 18th January and Friday 25th January in Norwich, and Tuesday 22nd January and Thursday 24th January in Ipswich. The topic will be: “Grievances from Hell and Disciplinary Dismissals” This topic will be dealt with in two sessions. Part One focuses on grievances and Part Two will focus on dismissals and will be looked at in our Early Bird sessions in May 2008.
Birketts LLP are proud sponsors of the EDP’s Norfolk Recruitment Awards 2007 – for more details see here.Members of Birketts’ Employment Team also lecture on the UEA Employment Masters Course. |
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