Before It Ends

CASE 1- DISMISSAL MR BANKS

Facts

• Type 1 diabetic, alleged condition did not in any way affect his ability to work
• 100% commitment to Sankeys
• 6 mths ago, junior member staff complained that Mr. B has been too friendly, asking inappropriate questions about private life, asked for a drink after work
• Mr Grindley confronted with some very obscene pornographic images downloaded from internet
• Mr B stated no idea about the images, no recollection and probably due to the hypoglycaemic epsiode relating to type-1 deabetes
• Mr Sankeys: Gross misconduct, rejected explanation of Mr. B
• Hence, instructed that he should gather together all personal belongings and leave premises at once

Advise

1. Very first requirement, to establish the status of employment.

s. 230 (1) Employment Rights Act 1996 stated:

Employee means "individual who has entered into or works (or where the employment has ceased) under a contract of employment.

2. Contract of employment

Fact stated that there are clear written work rules, code of conduct, formal written disciplinary rules and grievance procedures incorporated into all employment contracts.

#Hence, suggesting that he does.

3. Continuity

Mr Banks has to establish his continuity. From 6th April 2012, under the Unfair Dismissal & Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, employee have been employed for 2 years in order to qualify for statutory protection. 

# For Mr Banks, he was employed in December 2011, therefore he will only needs to establish the continuity of 1 year. There is nothing suggesting that Mr. Banks break his continuity (Given 100% commitment in work)

4. Qualification for Unfair Dismissal.

In order to claim for unfair dismissal, Banks needs to establish that:

(a) Contunuity

(b) Not excluded by legislation

(c) Dismissed 

(d) Bring the claim within 3 months of the termination of employment.

# Fulfilled.

5. Burden of proof

The burden of proof lies on the employer to establish that such dismissal was fair and reasonable.

6. Compensation

Recently, in February 2012, the cap for unfair dismissal compensation was up to 72300pounds, where the weekly pay to calculate the basic award rose to 430pounds per week.

7. The Burchell Test

According to Burchell, the employer only needs to show that he has genuinely believe that the employee was guilty.

8. Under s.98 Employment Rights Act 1996, employer needs to show that the dismissal:

(1a) was fair

(1b) subject to subsection (2), or other substantial reason

(2) The reason falls within:

(a) capabilities or qualification

(b) conduct of employee

(c) redundancy

(d) statutory restriction

(3a) Capabilities- skill, aptitude, health or any other mental or physical quality

(b) qualification- diploma or other academic, technical or personal qualification relevant to the position

(4) Where employer has fulfilled subsection (1), the question to determine whether the dismissal is fair or unfair:

(a) depends on circumstances

(b) determine in accordance with equity and substantial merits of the case.

#Sankeys needs to prove that the dismissal was fair on the basis of employee's capabilities, qualification, conduct, redundancy, statutory restriction, or other substantial reason that is reasonable.

9. Policy on diabetes on illness?

Sinclair v Wandsworth 

Held: It was unfair dismissal (UD). Although dismissal was reasonable, neither he nor his supervisor had been supplied with the Councils policy on alcoholism despite the policy that it should be circulated to all stuff. The council failed to make clear to him what he needed to do in order to seek treatment to avoid disciplinary proceedings, leading him to believe that he was doing all necessary steps by seeking help from OHS. Yet, the compensation has been reduced by 25% due to the contributory fault.

# Applying the legal principal in Sinclair, it is crucial that the employer has make known the policy to the employe. Albeit the reason for dismissal was reasonable, yet the failure of employer to make known the policy on alcoholism will amount to UD. Therefore, if there's any company policy regarding to diabetes in Banks case, the employer is obliged to make known to Banks. 

10. Evidence

According to the recent case, Pacey v Caterpillar Logistics Service UK,

The employee was off sick with back trouble The employer covertly filmed him going to normal activities without any apparent difficulties, dismissed him.

Held: UD. The employer had failed to consider any medical evidence.

# An analogy can be drawn to the case of Banks, where although there is evidence showing the porn of the computer. Yet, Sankeys had failed to consider any medical evidence of Banks, which might lead him to behave in the matter that he did, without him actually having knowledge of it.

11. Gross Misconduct, subject to s.98(2) ERA 1996, conduct.

Relevant case law will be Neary v Dean, where it was held that:

"conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which inherent in the particular contract of employment, that the master should no longer retain the servant in his employment."

#The question to ask here is whether downloading pornography by using company's computer amount to gross misconduct that undermines trust and confidence that inherent in the contract of employment, which the employer should no longer require to retain the servant.

12. Downloading pornography

Dunn v IBM- it was held UD, due to the employer dismissed the employer without proper disciplinary procedure being held. Compensation reduced 50% for contributory fault.

Parr v Derwentside- Fair dismissal with disciplinary proceeding

Humphries v Barnett- In this particular case, where it stated that in the particular case of obscene will justify the summary dismissal on the ground of misconduct.

#From the case law, it shows that if the proper disciplinary procedure is used, the employer can reasonably dismiss the employee on the ground of misconduct. However, the fact that Mr. G was confronted with some very obscene pornographic images. Following the decision in Humphries, the summary dismissal may be justified.

Yet, in City of Edinburgh v Dickson,

Mr Dickson had type 1 diabetes and hypoglycaemic episodes. In 2007, he was caught watching pornography in a school. His manager didn't accept that Dickson's action could have been as a result of his disability. Dismissed.

In the decision, Court of Appeal held that employer should:

a. objective examination

b. consulting

c. obtain independent medical advise

d. fully investigate.

"a degree of scepticism was entirely justifiable, but scepticism is one thing and a refusal to seriously consider the explanation proffered was another."

# The company of Banks was made aware that Banks has diabetes, therefore, the manager ought to consider his medical evidence. Failing to do so, UD.

13. SPENT previous conduct

Airbus v Webb

12 months ago, Webb was caught that he was washing his car during working time. More than 1 year ago, he was caught watching TV with his colleague during working time. Dismissed.

Court of Appeal held in this case: Such should not automatically lead to find that dismissal was unfair. Past conduct is part of the circumstances to be taken into account, in deciding whether employee was acted reasonably.

# Employee might consider the previous conduct of Banks acted with the female employee. Yet, conduct did not receive any official warning. Therefore, it can only be used to access whether the conduct of employer was reasonable.

14. Reasonable Employer

s98(4) ERA 1996:

Not only must the employer have the fair reason to dismiss the employee, but he must also show that he was acted reasonably in actually implementing the dismissal for one of those reasons.

# Therefore, Banks is eligible for claiming Unfair Dismisal.

15. Wrongful dismissal

While UD consider the reason that employer dismiss an employee, wrongful dismissal consider the breach of contractual obligation between the employer and employee. 

Under s.86 REA 1996- The rights of employer and employee to minimum notice

The notice required to be given by employer to terminate the contract of employment of a person who has been continuously employed:

(1b) is not less that 1 week's notice for each year of continuous employment if his period of continuous employment is 2 years or more but less than 20 years.

# Employer failed to give the minimum notice to Banks, wrongful dismissal.

16. Requirement to claim for wrongful dismissal:

a. there must be a dismissal

b. breach of contract

c. no justified summary dismissal. Dietman v London Borough of Brent- continued worked for 17 months after gross misconduct, not justified summary dismissal.

17. Remedies

Jancuik v Winterite- damages available if employer failed to comply with the contractual disciplinary procedure but only for the period of time that would have passed had those procedures been complied with.

# In the case of Banks, it is suggest that damages ought to be available from the time of employer failed to apply the DP to the time that would have lapse.

Claim for both wrongful and unfair dismissal.