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Disciplinary investigations: Common sense and even-handedness should prevail

In the recent Employment Tribunal (ET) case of Ball v. First Essex Bus Limited, the claimant, a 60-year-old bus driver who suffers from diabetes, has been successful in his unfair dismissal claim. He persuaded an ET that his dismissal for being under the influence of cocaine whilst on duty was both substantively and procedurally unfair. The claimant had failed a random drug test.

This case shouldn’t instil fear in employers who require to carry out random or “with cause” drug testing despite the attention-grabbing headlines that have been published in response to the ET decision. It should, however, serve as a useful reminder to employers to follow their own policies and procedures (which should be regularly updated) as well as the ACAS Code of Practice on Discipline and Grievance even in the face of (or perhaps particularly in the face of) very serious, career-ending, allegations. In this case the employer failed to follow its own drug and alcohol policy and contractual disciplinary policy. Importantly the drug and alcohol policy expressly allowed an employee to challenge the results of a positive test but the respondent did not bring this to the employee’s attention. The policy also required that an independent laboratory identified by the employee carry out a second test. This didn’t happen either. In addition the disciplinary policy provided that both investigating officer and disciplinary manager must carefully consider any verbal or written evidence submitted by the employee or their representatives. This was roundly ignored.

The judgment sets out a very good summary of what the ACAS Code requires an employer to do when operating any disciplinary procedure or process and in particular that an employer should keep an open mind and look for evidence that supports the employee’s case as well as evidence against it. In this case it appeared to the judge that “the respondent would pursue any avenue that would shore up the case against the claimant yet ignore any factor that might support the claimant’s position”. The judge also commented that “any disciplinary process requires a degree of common sense”.

The claimant’s position on cross-contamination (by handling cash and his fingers coming into contact with his mouth) was all but ignored despite being “open to the issue” as far as the judge was concerned. The employee had long service and an unblemished record. The fact that all four senior managers involved in the disciplinary process (investigation, disciplinary, first appeal and second appeal) found it odd that a 60-year-old man who suffered from diabetes, had no history of drug taking whatsoever, had an unblemished record, was of good character and whose managers were surprised that he had allegedly taken cocaine meant that any reasonable employer would have made further enquiries.

Disciplinary investigations: Common sense and even-handedness should prevail

Employers can be vicariously liable for the violent conduct of their employees outside work

In Bellman v Northampton Recruitment Limited (NRL), the Court of Appeal decided that NRL was liable for its Managing Director drunkenly assaulting another employee at an “impromptu” drinks event after a work Christmas party. There was a sufficient connection between the Managing Director’s employment and the assault. This is an important case for employers to be aware of in the run-up to the Christmas party season.

Facts

Mr Bellman was a Sales Manager at NRL. After the NRL Christmas party, he and a number of colleagues went to a hotel bar for an “impromptu” drink. At the hotel, the employees discussed a work matter. The Managing Director lost his temper and told the employees that it was he who owned the company and made the decisions. Mr Bellman verbally challenged the Managing Director, who punched him twice. As a result of this, Mr Bellman suffered severe brain damage.

Mr Bellman sued NRL for damages, on the basis that NRL was vicariously liable for the assault.

Decision

The High Court dismissed Mr Bellman’s claim, holding that the Managing Director was not acting in the course of his employment when he assaulted Mr Bellman. The drinks were impromptu and each employee had a personal choice as to whether or not to attend. The fact that work topics were discussed at the drinks did not mean that there was a sufficient connection between the Managing Director’s employment and his wrongful conduct in assaulting Mr Bellman.

The Court of Appeal overruled the High Court’s decision, finding that there was a sufficient connection. The Court of Appeal noted that it was important to look at the level of authority of the Managing Director – in this case it was very wide, as he had no set working hours, he controlled the way he worked and he made all management decisions. In the Court of Appeal’s view, at the hotel he had exerted his authority over the employees when telling them that he made the decisions in relation to NRL.

Comment

The outcome of this case turned on its (very specific) facts. The “close connection” test for vicarious liability gives the courts a broad discretion and employers should be aware that they will not always be vicariously liable for the conduct of employees in arguments outside the workplace that relate to work matters. The key differentiating factor in this instance was that the Managing Director had a significant amount of management responsibility and authority which he exerted over the employees at the after party.

As we approach the Christmas party period, employers should remind their employees (and in particular, senior management) about behaving appropriately. This can include communicating with employees about what is expected of them at office parties as well as the policy for coming into work the following day. This will assist in reducing the potential risks that employers face in the festive season.

Employers can be vicariously liable for the violent conduct of their employees outside work

A busy month for discrimination law

It’s been a busy few weeks for judgments; we round up the most recent discrimination cases:

When is cancer a disability?

What happens if an employer does not know an employee is pregnant when deciding to dismiss her but finds out before the dismissal takes effect?

Was forfeiture of LTIP awards unlawful age discrimination?

Click here to read the round up.

A busy month for discrimination law

Suspension for alleged misconduct may be a breach of contract

In the recent case of Agoreyo v. London Borough of Lambeth [2017] EWHC 2019 (QB), the High Court has held that suspension as a "knee-jerk" reaction to an allegation of misconduct may in itself be sufficient to breach the implied contractual term of trust and confidence.
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Suspension for alleged misconduct may be a breach of contract

Can you dismiss an employee if they have allegedly committed a criminal offence?

An American football team, the San Francisco 49ers, has dismissed its player Bruce Miller following his arrest on suspicion of assault after an altercation about a hotel room. Although both an American and sports related story, it poses an interesting question to employers in the UK … can you dismiss an employee who faces a criminal conviction?

You would first need to consider whether this behaviour was misconduct. There is no outright rule that an employer should dismiss an employee who it is alleged has committed or is found to have committed a criminal offence. The Acas Code of Practice states at paragraph 31 that “if an employee is charged with, or convicted of, a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”

Some points an employer may want to consider include:
• the seriousness of the offence;
• whether it can leave the job open while the employee cannot work;
• whether the conviction affects the employee’s job (e.g. loss of driving licence); and
• the employee’s refusal to cooperate with the employer’s disciplinary investigations.

Employers should also consider what its employee handbook says on this topic. For example, a typical clause in the handbook may state “a criminal investigation, charge or conviction relating to conduct outside work may be treated as a disciplinary matter if we consider that it is relevant to your employment.” Therefore, the employer will need to review and consider whether an investigation or suspension would be necessary. Responding to an employee’s criminal conviction remains a grey area on which advice should be sought.

Can you dismiss an employee if they have allegedly committed a criminal offence?

Insight: UK Employment Law Round-up – August 2016

Employment Round Up THUMBNAIL In this month’s issue we consider the case of Dronsfield v. University of Reading, in particular the EAT’s observations in that case about how disciplinary investigations should be conducted and the role of HR in finalising investigatory reports and disciplinary decisions.

We also look at a recent case on the definition of “worker” for whistleblowing purposes, which established that, in some circumstances, a “worker/employer” relationship may be established between an agency worker and an end user.

We consider the “cautionary tale” of Byron Burger on how not to assist in a Home Office investigation, with a brief reminder of the risk of not carrying out appropriate “right to work” checks.

Finally, we consider what’s next for UK employment law – not just in the context of Brexit, but also in terms of the pledges and agendas our political leaders have set out.

Read the full newsletter here.

Insight: UK Employment Law Round-up – August 2016

Tailoring social media policies to catch Pokémon Go

In our article published today in HR-inform we consider the key steps employers can take to make their social media and information technology policies more robust and mitigate the risks associated with staff playing Pokémon Go.

Click here to read the full article.

Tailoring social media policies to catch Pokémon Go

…gotta catch ’em all!

Last week’s launch of the smartphone game “Pokémon GO” has swept the UK faster than you can say “gotta catch ’em all”. The aim of the game is to explore surrounding areas and catch characters that are hiding in real-life locations. Players use GPS signalling and augmented reality to discover the Pokémon. While many herald this app for its benefits to those who may not do much exercise, employers may need to watch staff productivity to ensure that they are not playing the game while they should be working.

Clearly, if an individual is playing Pokémon GO during work time, they will not be performing their duties. Soon after its release, Boeing discovered staff had downloaded the app on more than 100 work phones. As a result, it has issued a ban on its workforce from playing the game during working hours.

Some employers may allow their staff to continue their search for these illusive characters during lunch breaks. However, having staff wander round the office in their breaks looking for a “Squirtle” or “Rattata” is likely to disturb those who are still working. This could also pose a health and safety risk if workers are staring at, and being guided by, their screens and not looking at where they are walking. It is perfectly acceptable for employers to limit workers’ use of the app to areas outside the building to minimise the disruption it could cause.

If staff are wasting time interacting with this app instead of working, employers are also within their rights to approach this as a misconduct issue and engage the disciplinary policy. So what should employers do to manage this?

  1. Ensure that social media policies are up to date – while these may not specifically refer to use of the Pokémon GO app, it will set out the employer’s expectations.
  2. Ensure the IT and communications policy comprehensively addresses the use of company resources and how employers will deal with misuse.
  3. Where employees are using personal devices at work, consider including or updating the “bring your own device to work” terms in the IT and communications policy to clarify what will amount to acceptable use.
  4. Should there be any loss of productivity or misuse of company resources, follow the employer’s disciplinary policy, using a consistent approach with all staff.
  5. If employers consider it is a risk to work momentum, send a company-wide email reminding staff that they should not be playing the game instead of working and remind them of the relevant company policies.
  6. Avoid a “knee-jerk” reaction as this is likely to be a passing trend that will decline and be replaced by a new craze.
…gotta catch ’em all!