Employment Law Round Up - November 2011

22-Nov-2011

What’s new?

In addition to the developments that we have reported in previous bulletins, there have recently been changes in the way in which unfair dismissal cases are listed for Hearing in the Employment Tribunals. Claims for ordinary unfair dismissal are now being listed for a Hearing at the point that the Claim Form is sent to the Claimant’s former employer.

This means that in most cases claims for unfair dismissal will be heard over a period of one day within 16 weeks of a claim being issued. Unfair dismissal claims combined with more complex claims, such as discrimination, or complaints involved “whistleblowing” are not, however, subject to the new regime.

Whilst the aim is to reduce waiting time for the parties and to ensure that cases progress quickly through the system, strict deadlines are also being imposed for compliance with Orders made by Employment Judges to prepare the cases for Hearing.

These Orders typically include the disclosure of relevant documents and the preparation and exchange of witness statements. There can be sanctions imposed by a Tribunal if Orders are not complied with, which include striking out a Claim or Response (defence) or awards of costs.

If the worst happens and a claim is brought, then employers should seek legal advice straightaway to ensure that they are able to meet the deadlines imposed by the Tribunal and put forward the best defence to a claim against them.

Case Law Round-Up

Dismissal – can an employer have a change of heart?

What happens when you dismiss an employee but then change your mind or make a mistake – are you allowed to rescind the termination notice?

The Court of Appeal in the case of CF Capital v Willoughby have determined that where there is an intended, unambiguous written notice of termination to an employee, it is not then open to the employer to change their mind and rescind it.

In this case, Ms Willoughby and CF Capital had discussed her changing to self employed status and no longer being an employee. However, before anything was agreed and finalised, Capital sent to her notification of termination of employment and told her that she would thereafter be self employed. Ms Willoughby refused to accept that arrangement. Capital told her that if she did not wish to become self employed then the arrangements would continue as before i.e. she would remain an employee. However, Ms Willoughby did not return to work. Instead, she said that she had been dismissed and made a claim for unfair dismissal to the Employment Tribunal.

Capital were successful in arguing before the Tribunal that they had made an error in terminating Ms Willoughby’s employment and once that mistake had been realised, they withdrew the dismissal notice. They argued that her failure to return to work therefore constituted a resignation. However, on appeal both the Employment Appeal Tribunal and Court of Appeal held that Capital had dismissed Ms Willoughby. They found that it was not open to them to have rescinded the termination of her employment as they had intended to dismiss her and had done so using clear and unambiguous terms. She was therefore entitled to present her complaint of unfair dismissal despite the fact that Capital had tried to retract the dismissal upon realising their mistake.

Whilst there are some circumstances where a “heat of the moment” dismissal may be able to be rescinded, or where the ambiguity of words used means that there has been no dismissal at all, this case is a strong reminder that legal advice should always be taken where an employer is considering terminating employment as there is rarely a right to change your mind once dismissal has been communicated.

Delaying a disciplinary

The High Court have recently held in the case of Dr Lim v Royal Wolverhampton Hospitals NHS Trust that there is a term implied into contracts of employment that disciplinary processes be conducted fairly and without undue delay

Dr Lim is a consultant anaesthetist employed by the Trust. He brought a claim for breach of contract regarding internal disciplinary proceedings that were contemplated against him for both capability and conduct.

In relation to the conduct proceedings, the Trust were proposing to revive allegations of misconduct which had occurred three years previously. Dr Lim argued that that was a breach of an implied term of his contract that disciplinary proceedings should be conducted fairly and without undue delay.

Although on the facts of this case it was held that the Trust had not breached Dr Lim’s contract, the Court did hold that there is an implied term requiring that disciplinary processes be conducted fairly and without undue delay.

Although not an Employment Tribunal decision, this case sits squarely with the guidance provided by the ACAS Code of Practice on Disciplinary and Grievance Procedures, which is taken into account by Tribunals in considering the fairness of an employers actions in unfair dismissal and other claims, and which provides that disciplinary procedures should be dealt with without undue delay.

This case is a reminder to employers that, save as in exceptional circumstances, they should not seek to rely on outdated or historic complaints in relation to disciplinary proceedings and that when conducting a disciplinary process, they should ensure that a timely resolution is obtained.

Counting the cost of unreasonable behaviour

Costs are rarely awarded in the Employment Tribunal and Employment Appeal Tribunals - such an Order is the exception rather than the rule.

However, costs can be awarded where a party has in bringing or conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by that party has been misconceived

Claimants and Respondents must therefore be aware that their conduct in dealing with the proceedings – even outside what happens at the Hearing – will be under scrutiny.

In the recent Employment Appeal Tribunal case of Iteshi v OFWAT, the Claimant was made subject to an Order for costs as a result of what was described as his ‘disgraceful’ behaviour and his unreasonable conducting of a “campaign beyond the proceedings”.

Mr Iteshi had sent a letter to his MP, copied to the Employment Appeal Tribunal, in which he made unsubstantiated allegations of fraud, conspiracy with the Government between judges and asserted that he would never be afforded a fair Hearing.

It was not the first time that he had courted such pre-trial publicity and he had previously been warned for it. The conduct of Mr Iteshi was described as part of a campaign to expose and discredit the Employment Tribunals and Employment Appeal Tribunal and was judged to be an abuse of process.

His claim was also found to be misconceived (in that it had no reasonable prospect of success) and unreasonably conducted. As a result, costs of £750 were awarded against Mr Iteshi.

This claim serves as a reminder to Claimants and Respondents in Tribunal proceedings that they need to ensure that they conduct themselves – and their litigation - appropriately at all times or be left counting the cost.

If any of these issues raise concern for you or you have an employment query generally, contact Sally Bird, Head of Employment

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