Legal update and HR responsibilities

 

 

Is unfair dismissal unfair even when attacking a work colleague? and a £75,000 payment for being denied sick pay. As part of an ongoing series we look at the cases that shape employee law and HR responsibilities.

Two tribunal cases are a reminder of being sure of your own staff processes.

Mechanic wins unfair dismissal appeal after attack

An employee who lost his temper and attacked a colleague was unfairly dismissed, according to the Employment Appeal Tribunal (EAT).  In the case of Arnold Clark Automobiles v Spoor, Mr Spoor had worked as a vehicle technician for the company for 42 years.  He had an exemplary record before the incident occurred in April 2015.  In a moment of madness, he lost his temper with a colleague over a minor issue and placed his hands round his colleague’s neck for a few seconds.  He apologised and his manager told him that he would issue a “letter of concern” rather than take formal disciplinary action.

This letter was copied to HR with following comments “Had some handbags between two guys here and we will be issuing Mr Spoor with this letter.  However, Arnold Clark’s HR department were concerned that an incident of physical violence had taken place and decided to suspend Mr Spoor and invited him to a formal disciplinary hearing.  At the hearing, it was emphasised that the company had a zero-tolerance policy towards physical violence, and Mr Spoor was dismissed for gross misconduct, without notice or pay in lieu of notice.

Mr Spoor appealed against his dismissal but the appeal was not upheld.  He therefore made a tribunal claim for unfair and wrongful dismissal.  The tribunal found that no reasonable employer would have dismissed an employee in these circumstances.   The found the investigation carried out by Arnold Clark to be unsatisfactory and Mr Spoor won his claim for unfair and wrongful dismissal.  Arnold Clark appealed, but the EAT found that the company had failed to take into account all the circumstances surrounding the incident, such as Mr Spoor’s long service, his previous good record and the fact that there was no evidence of any zero-tolerance policy on physical violence.

Implications for advo clients

This case highlights the importance of policies and proper investigations.  Even when one employee has been violent to another, employers must carefully apply their disciplinary policy and take into account all the circumstances of the case before making any decision to dismiss.  In this case it did not help Arnold Clark that they originally decided not to take any formal action, and then changed course and dismissed Mr Spoor.  This also highlights the need for all line managers to receive training in the use and application of the disciplinary process, and how to deal with incidents which could constitute gross misconduct.

An employee wins £75,000 as a result of being denied sick pay

In another recent case that is a salutary lesson for employers, a tribunal has awarded £75,000 to an employee who was denied sick pay.  Mr Mckenzie was signed off work in 2015 with stress from his job as a manager at Pentland Motor Company.  Similar to the Spoor case, Mr McKenzie had worked for Pentland for 50 years.  His contract stated that he was entitled to receive full pay for the duration of his sickness absence.  However, Pentland decided that he would only receive two months’ full pay, and thereafter he would receive SSP.

Upon hearing this, Mr McKenzie resigned on the basis that the company had breached his employment contract, and brought a claim for constructive dismissal.  The tribunal had “no hesitation” in accepting that Mr McKenzie’s contract entitled him to full pay and there was “nothing whatsoever to cast any doubts on the clear terms”.  As Pentland had refused to honour the terms of Mr McKenzie’s contract, the tribunal awarded him £73,382 for unfair dismissal and £1,855 for unpaid sick pay.

Implications for advo clients

Had Pentland paid Mr McKenzie £1,855 of sick pay in accordance with his contract, he would not have been able to claim anything at all.  However, by failing to do so this was a fundamental breach of contract which gave rise to the constructive dismissal claim.  For this reason it is preferable for any company sick pay scheme to be discretionary only, perhaps with the exception of senior executives.  The application of full pay and SSP must then be applied consistently and fairly to avoid any claims, for example on the grounds of a Protected Characteristic under the Equality Act 2010.

 

In a related article we include further guidance for HR on taking up and replying to employee references, which can be found here.

Please contact us if you would like to discuss how these issues effect your own company.

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