Employment Update – November 2016

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Reliance on final written warning

In Bandara v BBC a tribunal held that the Claimant’s dismissal was fair in the context of allegations of bullying, intimidation and a failure to follow instructions.

The Claimant had earlier (in the same year) received a final written warning relating to relatively minor incidents including a breach of editorial guidelines.

This is another in a series of cases that show that it is now settled law that a tribunal ought not to reopen an enquiry into an earlier warning unless the earlier warning was “manifestly” inappropriate.

So in most cases, an ET will not go back to look at whether a previous warning was warranted.  Even where there is some evidence to show that the employer might have erred, the Tribunals have sent a clear message – sort out problems with warnings when they happen, not at a later time in the context of other ET proceedings.

But here the tribunal found that the previous final written warning was, in fact, ”manifestly inappropriate”.   The Claimant’s actions simply could not have amounted to gross misconduct.

Nevertheless the tribunal found that the dismissal was fair.  Crucially it did not make findings about the extent to which the BBC had taken into account the fact of the final written warning.  Instead it looked at what might have happened had the employer hypothetically imposed a standard warning.

On appeal, the Employment Appeal Tribunal agreed with the Claimant’s argument: once the tribunal had found that the final written warning was manifestly inappropriate, it should then have gone on to consider whether the employer had relied on that warning in coming to the decision to dismiss.  The tribunal had mistakenly embarked on a consideration of a “what if?” – when what it needed to do was examine the employer’s actual reasoning (since otherwise the risk was that the ET would substitute its own judgment for that of the employer).  The case was sent back to the same tribunal so that further evidence could be heard in relation to this point.

Of course there will be cases where subsequent misconduct is so serious that dismissal will be fair whatever the history in terms of previous warnings (final or otherwise).  Had this been one of those cases, the characterisation or consideration of the previous warning might not have been relevant (or, at least, less decisive).

This seems to be a victory for commonsense.  If an employer is going to dismiss someone who is on a final written warning that ought never to have been imposed, it should tread with care – and, if needs be, ought to be required to say that the dismissal is independent of the old warning i.e. that the “new” misconduct (or whatever) is sufficiently serious to warrant dismissal in and of itself.

Holidays under the Working Time Regulations

In Grange v Abellio London Ltd the Claimant alleged that the employer had failed to permit him to take 20 minute rest breaks under the Working Time Regulations.

Crucially, the employer had never refused to allow these breaks – because G had never requested them.

The question for the Tribunal was: could there be a “refusal” to permit a worker to take breaks, in the absence of a request that is turned down?

Yes, says EAT, seeking to resolve some conflicting UK and EU guidance on the point.

The point of the Regulations, it was held, was to confer an entitlement to a rest break.  That imposed a proactive duty on employers.  A request was not a necessary prerequisite to the entitlement arising.  In many busy workplaces workers may feel that they simply can’t fit in a rest break, even if technically there is some notional allowance in the daily timetable.

These cases will depend on their own facts (in terms of what was actually permitted in each case, and how the exact working arrangements might have undermined any entitlement), and indeed the Claimant in this case did not “win” outright – the case is going back to the ET for the factual issues to be determined properly.   But the case is a good starting point for employees whose workplaces take a merely passive approach to rest breaks.


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