Before It Ends

CASE 2- MR BLACKBURN

Ket facts:

• Employement >5years
• Mr Baldwin- unauthorised payment for 1500 pounds.
• Paid himself out of company's wages budget for the overtime without consulting to the other directors in the company
• Take holidays without clearly indicating in advance
• Discovered, contacted Mr BB (on sick leave) by telephone and asked to attend investigatory meeting
• Mr BB was not told at that stage what the meeting was about
• Immediately suspended after meeting, told to wait for disciplinary hearing
• Sent formal letter setting out complaints, which DP will take place on the dat after Mr BB was due to return from his sick leave
• Complaint hardly given time to prepare hearing
• Decided to demote from his position on the basis of breach of trust
• Appealed, heard by Mr Grindley
• Heard the decision of appeal, wripped the document, slammed door and burst into admin office.
• "I know what exactly I can do and you know what you can do" then threw his office key across desk and went out to his car.
• Didn't return to work on the dat and following day, Sankeys assuming that he had resigned from his employment.
• Following morning, BB called and denied that he had resigned from his employment. 

Advise:

1. Very start is to establish the employment under s.230 Employment Rights Act 1996.

2. Dismissal or Resignation:

In Tanner v Keen,

Tanner used the company van after work and discovered by the employer outside the night club. Employer: "What is my fucking van doing outside; you're a tight bastard... That's it, you're finished with me."

Held: Tribunal found that the words spoken by the employer was in annoyance and not to have been a dismissal.

# It seems that the case of BB is the same, where the words spoken were in the heat of moment, which does not count as resignation. 

Gale v Gilbert- clear and unambiguous words needed

The case of "I am leaving, I want my cards"

Employment Appeal Tribunal (EAT) held: although it is undesirable that an employer should accept the resignation of a long-serving employee without giving him chance to consider his decision, where the words used by the employee were clear and unambiguous and were understood by the employers, question of what a reasonable employer consider was irrelevant. He therefore resign.

# Distinguish the case of Gale and BB, there must be the used of clear and unambiguous words to establish the resignation. Yet in BB case, the words of "I know what exactly I can do and you know what you can do" seems to be ambiguous, which does not amount to resignation.

3. Reasonable Employer

Stern v Simpson, 

Held: the words used needed to be construe in the context. Only if there is ambiguity was it necesary to consider whether a reasonable employer would understood the same as dismissal.

# If you feel like that, why the hell do you want to keep working for us? You know what you can do". The question arise whether these words are ambiguous. Arguably yes, because both of them did not clarify what can they actually do in action. Therefore, element of ambiguity. It is for the tribunal to determine the facts.

4. In the heat of moment

Martin v Yeoman,

The court held that each parties should have opportunity to recanting from spoken words in the heat of the moment. Hence there is no dismissal.

5. Evidence

Soverign House Security Service v Savage,

CA held: context of exchange between employer and employee was ambiguous, and made in the heat moment, it is the tribunal to find that employee had not resigned.

6. Special circumstances, such as stress/anxiety

Greater Glasgow Health Board v Mackay,

In this case, the court reversed the decision in ET and held that, there were no findings to justify the conclusion that appellants knew or ought to know that respondent was suffering from anxiety during the time of resignation or heat of the moment. therefore, no justification for concluding that the special circumstances exists which constitute an exception. 

# Different from Mackay, the fact that BB subsequently visit his local medical doctor, who issued a sick note of 14 days diagnosis BB was suffering stress and depression

7. Disability Discrimination

Hinsley v West Mercia Police

Held: refuse to consider any medical evidence would amount to disability discrimination.

# Failing to consider BB's disability leads to discrimination.

8. Assuming resignation

Wrongfully assuming the resignation of employee would cause UD. 

In Smith v Phil, decision suggest that it is for the ET to decide whether such was fair.

In Kwik Fit v Lineham, if the resignation is ambiguous, the employer should establish the true intention of the employee or it would otherwise be UD.

>> Applying the decision in the case law above mentioned, it is reasonable to assume that there is rather a dismissal instead of resignation. Hence, further tests to apply in order to determine whether the dismissal was fair or unfair.

I. The Bruchell Test

Under such test, it merely requires employer to have genuine believe that the employee was guilty.

II. s.98 ERA 1996 requires the Tribunal to consider whether the employer decision was :

(1.) fair- consistent and rationale

(2.) procedure fair

There are several source of guidance on procedure fairness such as :

(1.) ACAS

(2.) Employment Relationship Act 1999

(3.) Any contractual / non-contractual procedures

Failure to use procedure or using it would amount UD:

1. proper investigation

2. training

3. warning

4. illness or injury consultation

5. medical evidence

6. consultation with employees

7. provide copy of DP

8. communication with employee.

III. Disciplinary & Grievance Procedure

Tribunal would expect to to see:

1. Proper investigation

2. Fair hearing

3. Proper appeal procedure.

This means that employee will have:

a. opportunity to defence

b. accompanion

c. conduct with open minded, no pre-judge

d. appeal.

IV. Polkey Reversal/ Reduction

It must follow the statutory procedures. Otherwise, will be UD.

He can also claim for WD.