Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases

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Khatun v Winn Solicitors Ltd

An employment tribunal (ET) has held that an employer unfairly dismissed their employee who refused to agree to proposed employment contract changes due to coronavirus.

At the start of the pandemic, Winn Solicitors Ltd, the respondent, decided to place half of its staff on furlough after the business began to experience a downturn. The claimant was told in person that she could continue to work, but on 23 March 2020 the respondent notified her that all employees needed to agree to a variation to their contract terms or face dismissal.

The variations meant that the respondent could place employees on furlough, or reduce their hours and pay by up to 20%, on five days’ notice until 1 October 2020. The variations also allowed the respondent to extend the terms by a further three months if the business so required it.

These new terms were sent to the claimant via email on 24 March 2020 with instructions that she sign the document and return it within 24 hours. It was again explained to her that she would face dismissal otherwise. On 25 March 2020, the claimant sent her response stating that she was not willing to agree to the new variations because she was still performing the role she was contracted to do, but she would be willing to consider them if she were to be furloughed.

The respondent encouraged her to agree to the new terms, emphasising that dismissal was the alternative, but the claimant remained steadfast in her refusal. On 26 March 2020, the respondent’s chief operating officer (COO) instructed that the claimant’s employment be terminated without notice, pay in lieu, and accrued holiday payment. This action was justified by the COO as a suitable reaction to the claimant’s inflexibility which showed that she was “clearly not someone interested in the firm or her colleagues”.

The claimant’s IT access was terminated that afternoon and she was only informed of her dismissal after she queried this action. Later, the respondent paid the claimant notice and holiday pay after accepting that they had breached her employment contract terms. The claimant nonetheless brought a claim to the ET for unfair dismissal.

The ET decided that the dismissal was unfair due to the employer’s failure to undertake a proper dismissal procedure. They did not enter into any consultation with the employee over the contractual change and did not give the employee the opportunity to talk through her reasons for refusal. In addition, they did not offer an appeal to the dismissal.

The assessment of whether a dismissal was fair or not looks at both the reason for dismissal, and how it was carried out. The ET noted that failure to agree to the variations to her contract terms and conditions could have been a fair reason for dismissal, falling within the some other substantial reason definition. However, the dismissal was deemed to be unfair on the grounds of the lack of procedure.

This case does not indicate that this particular reason for dismissal will always be fair, even where a thorough procedure is adopted. Each instance will be assessed on its own facts, taking into consideration both the reason and the procedure used.

 

Kane v Debmat Surfacing Ltd

An ET has held that a driver who was sacked after he was spotted drinking in a pub while he was off sick was unfairly dismissed.

The claimant, who suffered from chronic obstructive pulmonary disease (COPD), had worked for the respondent for almost eight years and would take periods of sickness absence due to his illness. On 9 March 2020, during a three-week period of sickness absence, the claimant was spotted smoking outside a social club by a colleague. The respondent, Debmat Surfacing Ltd, later called the claimant after being notified of his visit to the pub.

After admitting to being at the pub for fifteen minutes on one day and thirty minutes on another, the claimant was informed on 23 March 2020 that he was to be investigated for dishonesty and breach of company regulations, noting that if he had been too ill to work then he should not have been in a pub. The claimant maintained that he did not see anything wrong with what he had done as he had only been in the pub for a short period of time.

The respondent added that the claimant should have been self-isolating due to the coronavirus outbreak and his vulnerability. On 24 June 2020, the claimant was sent a letter outlining that his behaviour constituted a breach of the organisation’s disciplinary rules, but no witness statement was included.

The claimant eventually shielded for twelve weeks, and a disciplinary hearing was held on 6 July 2020 which resulted in his dismissal. He appealed this decision, but it was rejected by the respondent.

The claimant won his case after the ET found that going out for a drink while ill was not against the firm’s disciplinary rules and the firm had not undertaken a fair disciplinary process.

The ET noted that the claimant was fired for a ‘breach of trust and dishonesty’, noting ‘flaws’ in the respondent’s investigations. The court went on to list ways the disciplinary procedure fell below the standard of a ‘reasonable employer’, as follows:

the disciplinary meeting should not have been held by the same person who dealt with the initial complaint (the person who made the phone call to the claimant on 9 March 2020)

there were no written accounts of the facts which led to some confusion

the respondent may have been aware that other employees have demonstrated the same behaviour in the past without taking action.

The ET judge went on to say: “The claimant was unfairly dismissed. There was a 25% chance of the claimant being dismissed if the respondent had conducted a fair procedure. The claimant did not contribute to his dismissal”.

Employers can implement disciplinary rules which set the cornerstones for employee behaviour and, generally, they cannot claim that an employee has broken a rule that they did not know was in force.

What employers need to do, regardless of the type of misconduct they are dealing with, is carry out a procedure in the way that the ET expects because, if not done correctly, it can negatively affect the outcome of the dismissal.

 

Prosser v Community Gateway Association Ltd

An ET has held that a pregnant woman was not discriminated against by her employer after she was sent home during the pandemic for health and safety reasons.

The claimant worked for Community Gateway Association Ltd, the respondent, on a zero-hour contract at, on average, four shifts per month. On 13 March 2020, she notified her employer that she was pregnant and was directed to the government website which classified her as clinically vulnerable.

On 17 March 2020, after the claimant arrived for her shift, she was sent home as a measure to protect her from catching the virus. A risk assessment was conducted in May 2020 after she asked to return to work. The following were found:

• the claimant could work only during the day, and

• she could return to work when perspex screens were fitted between desks – the desks were 1.8 metres apart rather than the two metres recommended at the time.

• The claimant was offered some shifts towards the end of May 2020 but because the changes recommended in the risk assessment took longer than expected to implement, she was not allowed to work those shifts.

• The claimant later raised a grievance, outlining that she had faced pregnancy discrimination because she had not received pay for the shifts she was scheduled to work and was not permitted to return to work.

The respondent, as a response to her grievance, asked the claimant to return to work. Before this, however, they carried out a second risk assessment and moved the desks to be three metres apart from the next. The respondent later paid the claimant for the shifts she would have worked if not for her being told to stay at home, as well as the training days she would have attended. The claimant later brought a claim to the ET arguing, most importantly, that sending her home and not paying her until she raised a grievance was direct pregnancy and maternity discrimination.

The ET found that there had been no discrimination on the part of the respondent. Recognising that the respondent reacted to the pandemic situation and government guidance, the ET dismissed the claim.

When considering the issue of not bringing her back until she raised a grievance, the ET noted that it was reasonable for the respondent to wait until there were proper Covid-secure measures in place before bringing her back to work.

The ET stated that they “do not find that this was an act of unfavourable treatment because of the claimant’s pregnancy but a positive step being taken to protect her in complying with legislation designed to provide her with protection.”

The ET, turning to the issue of her pay, noted that this appeared to be unfavourable treatment but went on to say that the respondent did not withhold pay due to her pregnancy but was instead an error that they later rectified. 

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