Be Aware – November 2022

Is consultation required in a redundancy with a pool of one?

Yes, according to the case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022 EAT 139.

The Claimant was one of several nurses employed on a succession of fixed-term contracts. The employer selected her post as ‘at risk’ for redundancy on the basis that her funding was coming to an end. When the case was first heard, the tribunal held that the dismissal was fair.

On appeal, the EAT overturned the decision, holding that the dismissal was unfair. It was found that when the employee could still, potentially, have influenced the outcome. consultation is still required prior to the decision on a ‘pool of one’ being made. Furthermore, the implied term of trust and confidence requires that employers will not act arbitrarily towards employees in the methods of selection for redundancy.

Whilst a pool of one can be fair in appropriate circumstances, it should not be considered without prior consultation, where there is more than one employee.

In Conclusion

This judgment is controversial. It is hard to reconcile this judgment with previous Court of Appeal’s decisions such as British Aerospace v Green. However, employers should remember that “the concept of fairness, when applied to the selection process for redundancy, is incapable of being expressed in absolute terms. There are no cut and dried formulae and no short cuts.”

Whilst this case shouldn’t be used to artificially widening pools to cover staff not genuinely at risk, (e.g. a hotel considering making its in-house pianist redundant would on the face of this judgment be acting unfairly unless it widened the initial pool to non-pianist staff). The case can be seen as an example of consultation being used to check that it is in fact pool of one in the first place. We will have to see how this case develops

ACAS advice on staff suspensions

ACAS has published new advice on how to handle staff suspensions, whether to allow you to carry out a disciplinary or grievance investigation, or to safeguard an employee’s health and safety.

A suspension is when an employer tells an employee to temporarily stop carrying out work. An employer should only suspend someone if it’s appropriate, such as:

• suspending an employee while they carry out an investigation, if it’s a serious situation and there’s no alternative
• medical suspension or pregnancy suspension to protect an employee’s health and safety

Publishing the new guidance, Acas Chief Executive, Susan Clews said:

“Our advice will help employers understand when they can consider suspension and the support that they can offer them.

Being suspended can be a stressful time for everyone. We have tips for employers on how they can support their employees’ mental health and wellbeing as well as alternative options to suspension that may be more appropriate.”

While the advice is non-binding and is unlikely to change well-established and thorough working practices, it could be a useful source of guidance and a valuable resource against which to sense check workplace policies and procedures. You can access the advice at https://www.acas.org.uk/suspension-during-an-investigation  .

Unfair Dismissal: Time Limits

Dismissed employees only have a certain amount of time after the dismissal in which to bring a claim in an Employment Tribunal.  The basic time limit is three months from the effective date of termination (known as the EDT), however, employees can extend that if they lodge the matter with Pre-Claim ACAS Conciliation and so it is no longer the case that, after three months, employers can breathe a sigh of relief.

If an employee misses the time limit for bringing his claim but brings a claim in any event, then the Tribunal has to consider whether it was (a) reasonably practicable to present the claim within the primary time limits (three months or extended by ACAS Conciliation) and (b) if it was not reasonably practicable, whether he or she has presented the claim within a reasonable period thereafter.  This is under section 11(2)(b) of the Employment Rights Act, 1996.

If you as an employer, are faced with a Tribunal claim, it is always worth considering the time limits and jurisdiction as the very first part of any defence, to see whether the claim might be struck out on such grounds.

In a recent case (Cygnet Behavioural Health Limited v Britton), the Employment Appeal Tribunal (EAT) gave a relatively pro-employer decision and on the facts of that case found that the employee was out of time.

Facts

In the claim, the Claimant had missed the primary time limit and had not then submitted his claim for a further 62 days.  He pleaded a number of problems, including dyslexia, mental health problems and an ignorance of the time limit.  He gave evidence that because he had started another job and was dealing with other issues in the claim (he had to deal with a Statutory Regulator of Healthcare Professionals during the time when he should have submitted the claim) he said that took up a lot of his time and so he had missed the original time limit.

The original Tribunal gave a judgment entirely in favour of the employee finding that his mental health, dyslexia and problems with his health, plus his new jobs and time dealing with the Regulator, had meant it was not reasonably practicable to meet the time limits.

The employer appealed that decision to the Employment Appeal Tribunal, that the decision was ‘perverse’.  The argument on appeal that the decision is perverse is a very high burden for the employer and to overturn the original decision the EAT must find that the original Tribunal’s decision is irrational, fundamentally wrong, outrageous, or flies in the face of properly informed logic.

On the facts here, however, the EAT found those tests were met. It decided that he had been able to do a great many things from his dismissal to the expiry of the primary time limit and thereafter, including working various jobs, moving house and engaging an appeal, liaising with ACAS, etc. All of this meant there was no logical reason why he could not have met the original time limit or submitted the claim within a reasonable time thereafter.  The claims were accordingly struck out.

Employers should note however that the EAT also commented that, although the test for unfair dismissal claims of reasonable practicality failed, if any claim for discrimination had been brought, then there is a wider and more lenient test on the employee, known as the ‘just and equitable test’, which may well have been satisfied. Tribunals are far more lenient in such cases.

Dismissing new employees for absence/illness

“I have recently taken on an employee, about a month ago, but she isn’t proving to be very reliable.  She is a receptionist but has already had 5 days off with a variety of medical complaints.  What do I do?  I don’t want to be unfair to her but I’ve got a business to run and it is very difficult to cope without the receptionist taking the calls?”

Many employers believe that it is more difficult to dismiss an employee who is ill than one who has committed an act of misconduct.  Provided the employee has well under 2 years’ service (and note that normal unfair dismissal rights actually apply a week below two years) that is not necessarily the case.

When dealing with employees with under 2 years’ service, an employer is perfectly entitled to dismiss an employee if their illness/absence creates difficulties and is not always necessary to go through the full disciplinary procedure in terms of medical evidence and written warnings before taking that decision.

There are however caveats to that general advice. Absence issues can sometimes give rise to claims, and the most common ‘banana skins’ for employers when dismissing employees with short service who are absent, are as follows:

1. The risk that any absence could be related to a long term condition, so as to satisfy a disability under the Equality Act 2010. To qualify as a disability the condition has to be long term and have a substantial adverse effect on day-to-day activities.  It is sometimes possible that (even if they appear to be short term issues) absences are linked to some longer term condition. Clearly if they are coughs, colds or other minor issues that is unlikely.
2. Be careful also that any absences are not related to pregnancy related illness or similar issues, as that can give rise to claims for sex and pregnancy discrimination.

In the scenario described above therefore if the employer had satisfied itself that those risks do not apply then the next step is very much at the employer’s discretion.  It could of course be sympathetic, give a warning and try to improve the issues, but if it is too disruptive it could take a view and invite the employee to a meeting to consider dismissal on the grounds of absence.

If the employer decides to proceed, it is usually advisable to lay a basic paper trail, involving a written invite to a hearing to consider dismissal on the grounds of absence, a minuted discussion regarding the issue and a decision letter, ideally with the right of appeal.  Although not following that procedure wouldn’t necessarily give rise to claims, by doing so the employer lays the foundation of a defence in the Tribunal, if the employee should try to claim that they were dismissed for any automatically unfair reason (most commonly discrimination, whistle-blowing or asserting statutory rights) for which length of service is not required to bring claims in the Tribunal.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us in 01788 225 908 at any stage for advice and assistance as appropriate.