Comparators, addiction, trust
01 October 2019
This article was featured in the October 2019 issue of the magazine.
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Olalekan v Serco Ltd
In this case, the employment appeal tribunal (EAT) ruled that a comparator in a direct discrimination claim could not necessarily be rendered unsuitable merely because a different decision-maker was involved.
The case centred around a black prison custody officer (PCO) who was adjudged to have been involved in and ultimately dismissed following an alleged assault on a restrained prisoner. Olalekan appealed claiming the dismissal was unfair and discriminatory on the grounds of race as other white PCOs had not been dismissed for similar assaults. To support his claim, Olalekan provided a list of comparable white PCOs who had not been dismissed following accusations of assault, and three black PCOs who had.
The director of the prison investigated the circumstances surrounding the other PCOs and determined that the circumstances in the aforementioned cases were materially different to that of the present case. He therefore upheld the decision to dismiss the employee, who later brought numerous claims to employment tribunal (ET), including unfair dismissal and direct race discrimination on the grounds that he had been treated differently to a comparator i.e. the white PCOs who had not been dismissed.
The ET dismissed the claims, stating that there was no evidence to support a claim for direct discrimination as there was nothing to suggest any PCO who acted in this manner would not have been dismissed, regardless of their race. This was because the director of prison had demonstrated that the white comparators who had not been dismissed were in a materially different position and their cases had all been dealt with on their own individual merits.
The ET explained that ‘consistent evidence’ from the prison had brought them to the conclusion that any PCO who had committed a similar assault would have been dismissed regardless of their race.
The employee appealed claiming that the ET had failed to look into all of the incidents where a white PCO had been treated more favourably and not dismissed. However, the EAT dismissed this appeal and explained that, in situations where the comparators’ circumstances are different, their situation can still be of evidential value but will ultimately be weakened by these material differences.
Interestingly, however, the EAT dismissed an argument from Serco Ltd and confirmed that the existence of a different decision-maker will not automatically lead to a conclusion that there is a material difference for the purpose of identifying a comparator. With this in mind, employers should ensure that all employees are treated equally when responding to incidents of misconduct. They should also keep in mind that employees seeking a claim for direct discrimination will need to demonstrate that a comparable employee, or hypothetical comparator in the same situation, would not have been subjected to the same detriment and that the reason for their detrimental treatment was their protected characteristic.
...any PCO who had committed a similar assault would have been dismissed regardless of their race
Glassford v Royal Mail Group Limited
This case saw the EAT tasked with ruling on whether dismissal for misconduct could be considered fair, despite further investigations not being held into the employee’s late claims of alcohol dependence.
The employee, Glassford, had 23 years’ service with Royal Mail and had previously been placed on ‘suspended dismissal’ for two years following a disciplinary procedure after turning up to work under the influence of alcohol on three separate occasions. Whilst this suspended dismissal was still live the employee took an unauthorised absence, which he claimed was to assist his mother in coming out of hospital; and Royal Mail dismissed him with notice.
The employee appealed and admitted to alcohol addiction which has been a leading factor in his conduct. Despite the employer having specific policies and procedures in place to support staff with tackling addition, the appeal was dismissed. The employer outlined that the employee had: never disclosed that he had such a problem before; actually denied it when asked previously; refused help from his GP; and never sought help from Occupational Health.
The employee then proceeded to bring claims to ET for unfair dismissal and automatic unfair dismissal on the grounds that his statutory right to take time off for a dependant, his mother in these circumstances, had been breached. However, the tribunal dismissed the claims finding that the employer’s decision to dismiss had been procedurally and substantively fair.
When considering a potential breach of the statutory right to time off for a dependant, the ET found that the employee’s situation had not presented an unexpected disruption as he had been aware of his mother’s situation for two weeks prior to the event. The tribunal reasoned that he had simply been avoiding attending work under the influence of alcohol again in order to avoid the potential consequences of doing so.
Glassford appealed arguing that the employer should have paused the original appeal process in order to determine whether dismissal was the appropriate action for a long-standing employee who had just admitted he had a drinking problem. The employee relied on the principle set by Weddel and Co v Tepper , which held that it was unreasonable to hastily jump to conclusions in situations where it is reasonable to postpone proceedings and gather further evidence.
However, the EAT dismissed this appeal, instead finding that the ET was correct to conclude the actions of the organisation fell squarely within the band of reasonable responses, which meant the precedent of Weddel did not apply. The EAT outlined that the organisation had directly addressed the employee’s alcohol problem in their decision to uphold the dismissal and had clearly demonstrated how this had led them to their conclusion. The fact that the organisation remained unconvinced the employee was serious about tackling his alcohol problems was deemed sufficient to negate any impact of his late acknowledgement that he had a problem.
Ultimately, when considering dismissing an employee for issues of conduct, an employer must have an honest belief, have in mind reasonable grounds on which to sustain that belief, and carry out as much investigation into the matter as is reasonable in the circumstances. If material comes to light at a later stage that was unknown at an earlier stage, the employer must be able to demonstrate that it was taken into consideration when making a final decision. The decision-maker will need to evidence that they gave full consideration to this matter when making their conclusion, especially if the individual has a disability which has impacted their conduct.
...likely to seriously damage the mutual trust and confidence between the employee and the employer...
Epsom & St Helier University Hospitals NHS Trust v Starling
In this case the EAT had to decide whether it was a breach of the implied duty of trust and confidence for an employer to serve an ‘informal improvement notice’ without first holding a meeting, as was required under their disciplinary procedure.
Starling was a nurse with almost forty years’ service. On the day in question she was tasked with switching on incubators in readiness for a procedure that was to take place the following day relating to IVF treatment. This duty was extremely time sensitive and integral to ensuring the patient’s IVF cycle was not put at risk. However, Starling had to leave work early following a suspected mini-stroke and failed to carry out the task. By the time she informed her colleagues it was too late for the procedure to take place as planned. It was accepted by all parties involved that this could have potentially had significant consequences for the patient as well as resulting in substantial costs for the Trust.
The Trust’s disciplinary policy indicated that, in situations where the performance of an employee had raised concerns, an informal meeting should take place with them to discuss the situation. At the end of this meeting, an ‘informal improvement notice’ could be issued. This notice, which does not carry the same weight as a disciplinary warning, was widely considered the first informal stage of a disciplinary process.
Despite no such meeting taking place Starling’s manager issued the notice. The failure to hold the meeting meant her manager was unaware of the reason why she had left work early.
When the employee disputed the decision, the employer decided it should stand. Starling resigned from her position and claimed constructive unfair dismissal which was upheld by the ET.
The ET found that there was no reasonable, or proper, cause for the Trust, or its employees, not to speak to the claimant first before issuing the improvement notice. A failure to hold a meeting was likely to seriously damage the mutual trust and confidence between the employee and the employer, particularly given the employee’s long service. Failing to hold the meeting meant that the dismissal decision was made without full knowledge of the facts. The EAT dismissed the Trust’s appeal and agreed with the ET’s findings.
This decision should remind employers of the importance of following their own procedure when dealing with disciplinary action. Even in situations where misconduct could potentially cause significant reputational damage, failing to follow disciplinary procedures could open the door to claims of unfair dismissal.
In addition, the judge in this case also suggested that employers in highly demanding industries, such as health care, will not be exempt from the same scrutiny as others when it comes to management and human resources competency. This reaffirms the importance of providing appropriate training on people management skills for those stepping into senior roles.