The countdown begins…
As yet another Bank Holiday beckons we can look back on what has sometimes felt like a summer filled with Bank holidays. Summer 2011 saw employers managing employees’ requests for long weekends and holidays based around the additional bank holiday for the Royal Wedding. As a result, you may well have reviewed your annual leave and absenteeism policies and procedures to ensure that the needs of your organisation were met.
2012, however, will see further challenges to your business in the shape of another additional bank holiday for the Queen’s Golden Jubilee as well as the Olympics.
With over 240,000 applications from individuals wishing to volunteer at the Olympics and 3.5 million tickets sold, employees will be requesting time off work not only to attend, but also to accommodate the volunteering schedule – how prepared is your organisation for the pending issues that may arise in the run-up to, and during the big event?
Are you ready?
- Have you implemented a policy on volunteering?
- Have you reviewed annual leave and absenteeism policies and procedures?
- Do you address unauthorised absences through the disciplinary procedure?
Remedies available to a Tribunal
It is rare for the Employment Tribunal to make orders for reinstatement or re-engagement, indeed they are normally reluctant to order reinstatement or re-engagement where the employer argues that the employment relationship has been irreparably damaged, but in two recent cases the tribunal has ordered re-instatement.
In the first case Mr Mehanger, was employed as an installation engineer with no training on what to do if there were problems with installation on a site, including no guidance on what action to take if access could not be gained to dry risers in flats (where the wiring is often located) because they were locked. Engineers were said to be "generally aware" that they would have to refer to the caretaker at the site or telephone their manager. However following problems with an installation and after following what were later said to be “sarcastic” permission from the concierge of a block of flats, Mr Mehanger broke into the dry riser in the process of an installation. The company's main client complained about the damage and following an investigation, Mr Mehanger admitted that he had caused the damage but explained that the concierge had told him to do this. Mr Mehanger was supported by another engineer and a customer, who were present during the incident, both gave evidence that the concierge had given Mr Mehanger permission to break into the dry riser.
Following a disciplinary hearing, Mr Mehanger was dismissed for gross misconduct, on the basis that he knew that the correct procedure was to call his manager. No account was taken of the testimony of the second engineer or the customer, or of Mr Mehanger's argument that the concierge had told him to break in. Mr Mehanger's appeal against dismissal, which was heard by a subordinate of the dismissing manager, was unsuccessful. Mr Mehanger claimed unfair dismissal.
The Employment Tribunal concluded that the dismissal was unfair because the disciplining manager failed to take account of key evidence from the second engineer and the customer. The Tribunal also noted the inadequacy of the concierge's evidence and the failure to interview Mr Mehanger's manager, who had apparently been informed about the incident, but had not considered it worth reporting or taking disciplinary action over. The Tribunal's overall impression was that the company's management knew that breaking into areas such as dry risers occurred, but turned a blind eye to the practice. The Tribunal was also unimpressed with the decision to have a junior manager hold the appeal proceedings.
The Tribunal was not satisfied that any blame could be placed on Mr Mehanger. It was not sure that he understood that the concierge was being sarcastic when he ordered him to break into the dry riser, and this was an issue that was never resolved in the disciplinary interview. The Tribunal ordered that Mr Mehanger be reinstated.
Mehanger v Map Group UK Ltd ET/1308566/10
The second case involves an unfairly dismissed care worker who was reinstated primarily because of the difficulties she experienced in gaining alternative employment with a number of “unsubstantiated allegations” hanging over her.
Ms Barlow was a healthcare assistant for Ranc Care Homes Ltd (her main employer) from March 2005. She worked on a second job for an agency and maintained that her main employer had known about this from the start of her employment with it. In December 2009, Ms Barlow was suspended by her main employer because of allegations that she had been mistreating residents. An investigatory meeting took place in January 2010, followed by a disciplinary hearing in February 2010.
Ms Barlow continued her agency job during her suspension, which lasted around four months. When her main employer found out, she was invited to a further disciplinary hearing in April 2010 to answer the charge that she had been working a second job, contrary to rules in the employer's staff handbook.
Ms Barlow maintained that she told her interviewer in her original job interview that she had a second job and that she was never shown the section in the staff handbook that covered "other employment". In any event, the relevant passage in the handbook merely required the employee to "notify" Ranc Care Homes Ltd if taking, or considering taking, up additional work. It did not prohibit employees from having a second job.
The conclusion of the disciplinary panel was that Ms Barlow should be dismissed for the sole act of misconduct of failing to notify the main employer of her other job. The disciplinary process relating to the allegations of mistreatment of residents was never concluded and the unsubstantiated allegations remained on Ms Barlow’s file affecting her employer’s willingness to provide a reference.
Ms Barlow brought various claims, including a claim of unfair dismissal that was upheld by the employment tribunal. The tribunal concluded that the dismissal was unfair because of failure to fully investigate, procedural defects in the dismissal and the severity of the dismissal for a simple failure to notify the main employer of a second job ("a sledgehammer to crack a nut", as the tribunal described the employer's response).
The tribunal awarded Ms Barlow over £6,000 in compensation and then went on to consider whether or not an order for reinstatement was appropriate in this case. Ms Barlow argued that there was no evidence that reinstatement was impractical. She had been having difficulty getting a job, which was exacerbated by the main employer's failure to provide her with a reference. The employer argued that the tribunal should bear in mind the nature of the conduct that led to Ms Barlow's dismissal and that she had failed to mitigate her loss by looking for another job.
Once again, the tribunal took the unusual step of ordering reinstatement. It expressed surprise that the main employer had made no reference to the "live" allegations from Ms Barlow's original suspension in December 2009, leading it to believe that the mistreatment allegations had "absolutely no foundation". The tribunal saw the only way to correct the damage done to Ms Barlow's career and credibility because of the "unsubstantiated allegations hanging over her without a resolution" to be her reinstatement. The Tribunal considered whether reinstatement was impractical and as the employer had shown no reason that reinstatement would be impractical and as there was no blameworthy or culpable conduct from Ms Barlow, reinstatement was ordered.
Barlow v Ranc Care Homes Ltd ET/1101527/10
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