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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

Taxation of termination payments: employer NIC charges further delayed to April 2020

In the 2016 Budget, the government announced that termination payments over £30,000 would be subject to employer Class1A national insurance contributions (NICs) from April 2018. Termination payments over the tax-exempt threshold of £30,000 are currently only subject to income tax. In the 2017 Budget, the government announced that this change would be delayed for a year and take effect from April 2019.

However, in the Autumn 2018 Budget earlier this week, the government announced that this change will be further delayed. Subject to any further postponements, employer NICs on termination payments over the £30,000 threshold will now become payable in April 2020.

Whilst most termination payments fall below £30,000, for employers this announcement will come as a welcome, albeit temporary, reprieve from additional costs in those cases where the tax-exempt threshold is exceeded.

Taxation of termination payments: employer NIC charges further delayed to April 2020

Does an employee waive an employer’s repudiatory breach by resigning on notice and continuing to work?

What happens if the employee asserts that he or she has been constructively dismissed but resigns on notice and continues to work? The High Court in Brown and others v Neon Management Services Ltd and another [2018] EWHC 2137 held that working a lengthy period of notice after resigning in response to a repudiatory breach can amount to a waiver of the breach and affirmation of the contract, such that the employee will not be released from his or her restrictive covenants.
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Does an employee waive an employer’s repudiatory breach by resigning on notice and continuing to work?

Kilraine v London Borough of Wandsworth [2018]

A recent case has considered the issue of what amounts to a protected disclosure. In Kilraine v. London Borough of Wandsworth [2018], the Court of Appeal guided Employment Tribunals in such cases to focus on determining whether there was a "protected disclosure" and whether the disclosed information, showed or tended to show that one or more of the six specified types of malpractice had taken place or was likely to take place – for example a breach of a legal obligation.
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Kilraine v London Borough of Wandsworth [2018]

Summary dismissal and misconduct

The recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust provides an interesting insight into the circumstances in which employers can summarily dismiss an employee for misconduct.
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Summary dismissal and misconduct

Notice of termination: are you sure your employee has been dismissed?

It is a common misconception amongst employers that notice of dismissal (or in cases where no notice is given, dismissal itself) will take effect on the date the employer writes to the employee to give them notice or inform them of the decision to dismiss. A long line of case law from the Employment Appeal Tribunal (EAT) has established that this is not the case. Where, as is often the case, there is no contractual provision dealing with communication of notice, notice (or dismissal) will take effect on the date on which this is communicated to the employee. This means that, where an employer writes to an employee to give notice or inform them of their dismissal, it is only once the employee has personally taken delivery of the letter that the notice (or dismissal) will be deemed to have been received.
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Notice of termination: are you sure your employee has been dismissed?

Summary Dismissal – Calculating the Effective Date of Termination

In the recent case of Cosmeceuticals Ltd v. Parkin it was held that the effective date of termination (EDT) is not moved if notice is subsequently given following an earlier summary dismissal.
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Summary Dismissal – Calculating the Effective Date of Termination

Watch out for ‘post employment notice pay’

At the moment contractual payments in lieu of notice are subject to tax and NIC deductions. In the absence of a contractual right to make a payment in lieu of notice, such a payment is generally regarded as damages for breach of contract, and can be paid without deduction of tax up to the £30,000 threshold.
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Watch out for ‘post employment notice pay’

Autumn Budget – employment provisions

The Chancellor has spoken and presented his first Autumn Budget.
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Autumn Budget – employment provisions

Supreme Court rules that embassy staff are not excluded by state immunity

In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
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Supreme Court rules that embassy staff are not excluded by state immunity