June 03, 2019

U.K. Employment Law Update: Disciplinary Proceedings, Compensation on an Unfair Dismissal and Religious Discrimination

Do Disciplinary Proceedings Have to Wait Until a Criminal Investigation Is Completed?

In North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, the Court of Appeal considered whether conducting disciplinary proceedings during an ongoing criminal investigation was a breach of the term of mutual trust and confidence implied in all employment contracts.

Dr Gregg worked as an anaesthetist for the National Health Service (the NHS). After the death of a number of patients, the NHS commenced disciplinary proceedings against him and notified the police. Dr Gregg refused to take part in the disciplinary proceedings so as not to risk prejudicing himself in the ongoing criminal investigation. When the NHS sought to continue the disciplinary process, Dr Gregg successfully applied to the U.K.’s High Court for an injunction that prevented it from doing so, pending outcome of the criminal investigation. The High Court also found that the NHS’s conduct had amounted to a breach of the implied term of trust and confidence.

The Court of Appeal overturned the injunction and held that the High Court had incorrectly applied the test to establish a breach of the implied term of trust and confidence, which is as follows: (a) was the conduct in question calculated to destroy or seriously damage the employment relationship, and (b) was there a reasonable and proper cause for that conduct. The Court of Appeal found that because the NHS was merely applying its contractual disciplinary process, neither limb of this test was met.

This decision provides useful guidance on implementing a disciplinary process where there is an ongoing criminal investigation, but ultimately this will always be a factually sensitive matter to be decided on a case by case basis.

Compensation Not Always Payable – Even on an Unfair Dismissal

In Beattie v Condorrat War Memorial and Social Club and others UKEATS/0019/17/JW, the Employment Appeal Tribunal (EAT) considered whether compensation was payable where a dismissal was found to be unfair.

Mrs Beattie was a bar steward. When several bottles of alcohol were found to be missing, Mrs Beattie had no explanation. Without carrying out an investigation, her employer issued her with a final written warning which would remain active for 12 months. Mrs Beattie appealed against the warning but eventually accepted partial responsibility. Shortly afterwards and within the 12-month period during which the warning was active, Mrs Beattie was asked to sell tickets for a function. She refused, not wanting to take any responsibility for money collection. Her employer considered this refusal a second act of misconduct and dismissed Mrs Beattie, who claimed unfair dismissal.

The Employment Tribunal (ET) held that Mrs Beattie’s dismissal was procedurally unfair as the employer had failed to investigate the issue of the missing bottles. However, the ET reduced her compensation to nil because it found that, had a fair process been followed, there was a 100 percent chance that Mrs Beattie would have been dismissed anyway.

Mrs Beattie appealed to the EAT, arguing that her final written warning should have been declared invalid, meaning that the reduction in compensation could not stand. The EAT disagreed: on the face of things, there had been a clear case for issuing the warning and sufficient basis in the evidence for the ET’s finding.

While this decision is not new law, employers should note that reductions in compensation are typically only made by ETs as a last resort. Procedural fairness in disciplinary processes is therefore of the utmost importance.

Weekend Working and Religious Discrimination

In the City of Oxford Bus Services Limited v Harvey UKEAT/0171/18/JOJ, the Employment Appeal Tribunal (EAT) considered whether refusing an employee’s request not to work on a particular day for religious reasons was indirectly discriminatory.

Mr Harvey was employed as a bus driver by the City of Oxford Bus Services Limited (COB), which required all drivers to work on either Saturday or Sunday. Mr Harvey was a Seventh Day Adventist and, in order to be able to observe the Sabbath, he requested not to work between sunset on Friday and sunset on Saturday. This request was refused on the basis that it may lead to industrial unrest if other drivers asked for similar time off. Mr Harvey brought a claim for indirect discrimination on the grounds of religion and belief.

The Employment Tribunal (ET) upheld the claim, finding that although COB’s requirement for weekend working had legitimate aims (namely efficiency, fairness and maintaining a harmonious workforce), it had failed to demonstrate that it was a proportionate means of achieving those aims.

However, the Employment Appeal Tribunal (EAT) overturned this decision, finding that the ET had focused wrongly on the application of COB’s requirement specifically to Mr Harvey. Instead, the ET should have placed its focus on whether COB’s requirement could be justified as a rule more generally, balancing its legitimate aims against the potentially discriminatory effects of the requirement across the workforce. The case was remitted to the ET for reconsideration.

This case highlights the challenges faced by employers in trying to balance requests for time off against business needs and highlights that potentially indirectly discriminatory requirements need to be considered across the workforce.

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