Decision making processes and less favourable treatment

27 November 2017

This article was featured in the December 2017/January 2018 issue of the magazine.

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

NHS 24 v Pillar

The Employment Appeal Tribunal (EAT) has considered whether a disciplinary investigation can be regarded as unreasonable where the investigation is too thorough.

The employee was employed as a nurse practitioner from July 2002 to September 2014. She was required to take telephone calls from the public and triage them, deciding on the most appropriate next care step. A patient safety incident occurred in December 2014 when the employee failed to consider a ‘red flags’ when making her decision as to where a patient should be directed. The employee sent the patient, who was describing symptoms of a heart attack, to an out of hours general practitioner (GP) service and did not make an emergency ambulance call. The patient attended the GP service and suffered a heart attack.

The employer commenced disciplinary procedures. During the investigation, a management report was created to contain the information uncovered. The report contained details of two previous patient safety incidents that had not been subject to disciplinary action. One of the incidents related to a very similar scenario where ‘red flags’ were not considered when directing a patient who was describing heart attack symptoms. Following the two incidents, the employee was put on a development plan and given additional training and support. The outcome of the disciplinary procedure was to dismiss the employee. She claimed unfair dismissal as the investigation report was unreasonable due to containing details of incidents not subjected to disciplinary sanctions.

The Employment Tribunal (ET) decided the employer had acted unreasonably by including the previous incidents within the investigation report when they had not disciplined for these. They suggested that the information regarding the further training and support were relevant to the investigation but could have been set out in the report without mentioning the incidents. When looking at whether the decision to dismiss was reasonable, the ET found that it was because of the materials available to the decision maker at the time. However, because the investigation was not within the band of reasonableness, the dismissal was unfair.

...the investigation report contained too much material

The employer appealed against the decision. The EAT allowed the appeal and substituted the decision to find the dismissal was fair. The EAT reiterated that the focus of the tribunal when looking at the investigation stage is to determine whether the investigation is sufficient enough. In this case, there was no question about the sufficiency of the investigation, rather that the investigation report contained too much material. Only in extreme cases, said the EAT, would an investigation be unfair where it was too wide or overzealous.

When looking at the fairness of the decision to dismiss, the EAT highlighted that there is a distinction between including information about previous events in an investigation report and relying on past misconduct when deciding whether to dismiss or not. The dismissing officer themselves should consider how they are treating the background information and the importance this has in their decision-making process.


Royal Mail Ltd v Jhuti

The Court of Appeal have examined whether a dismissal is automatically unfair when the decision maker was unaware of the history of protected disclosures and had been intentionally misinformed by the employee’s line manager.

The employee commenced a six-month trial period in the MarketReach department. The department was tasked with offering incentives to customers, although there were strict rules about who and when these could be offered. The employee noticed irregularities in the way colleagues did this and believed they were breaching the strict OFCOM (Office of Communications) guidance. She emailed her line manager twice in November 2013 to report this, and a meeting was arranged between the two. At the meeting, great pressure was put on the employee to withdraw her allegations or not continue with the company past her trial period. She was encouraged to send an email to her line manager withdrawing her allegations due to a misunderstanding. The employee did this the following day. Her line manager replied stating she would receive further training on the rules.

The employee was placed on improvement targets by her line manager that she felt were overly harsh and due to the allegations. She complained to the human resources (HR) department about this and was given a different manager. The employee subsequently raised a grievance regarding her treatment by her previous line manager and went off sick in March 2014 with work-related stress.

The head of sales operations (HSO) was later tasked with resolving the employee’s continued employment. She invited the employee to a meeting and informed her that dismissal was being considered due to her poor performance. The HSO was provided with historic emails between the employee and her line manager, although not the email containing the original allegations. The employee sent emails to the HSO referencing the allegations. The HSO asked the line manager for his comments on this matter and he stated that the original allegations were based on a misunderstanding by the employee due to a lack of training. He provided the withdrawal email in support of this. The employee was dismissed in July 2014 for unsatisfactory performance. She claimed automatic unfair dismissal as her dismissal was due to making protected disclosures.

The ET found the dismissal was not based on the making of a protected disclosure. The non-disclosure of the allegations email, the retraction email, and the explanation given by the line manager meant the decision maker could not reasonably know about the disclosures. Instead, the information available to the decision maker at the time made it reasonable to dismiss on the grounds of performance. Therefore, the dismissal was not automatically unfair.

Following an appeal, the EAT decided, as a matter of law, an employer is responsible for a decision made without the true facts where this has been manipulated by a manager responsible for the employee concerned who is aware of all the facts. This meant the mind and motivation of both the decision maker and the employee’s line manager had to be taken in to account. In this case, the line manager was motivated by the making of protected disclosures and the dismissal was automatically unfair.

The employer appealed to the Court of Appeal and the appeal was allowed. The Court determined that a tribunal is obliged to consider the mental processes of the person, or persons, who were authorised to make and did make the decision. This will include a manager’s motivation where the manager has some responsibility in the formal process, such as an investigation, or potentially where the manager is very senior. As the line manager simply supplied documents and responded to a query, rather than having a formal role, the dismissal was not automatically unfair. This did not prohibit the employee from claiming compensation for losses caused by unlawful detriment leading to dismissal.


British Airways v Pinaud

The EAT have considered whether a part-time worker was treated less favourably under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 due to her shift pattern.

The employee worked as a crew member on a full-time basis since 1985. Following a period of maternity leave, she returned to work in 2005 on a part-time shift pattern. The full-time shift was called the ‘6/3 pattern’ and provided a six-days-on, three-days-off shift. This pattern required a full-time crew member to be available for work for 243 days over the year. The part-time pattern was expressly classed as a 50% pattern. It was a ‘14/14’ pattern” providing a fourteen-days-on, fourteen-days-off shift where the basic salary was 50% of the full-time salary. This pattern required a part-time crew member to be available for work for 130 days over the year. The actual hours worked by a crew member fluctuated due to the bidding system in place; however, their basic salary would stay the same regardless of how many duty hours worked.

...difficult to justify proportionality if they have not looked at alternative ways...

The employee claimed less favourable treatment as the terms of her contract required her to be available for proportionately more days than a full-time comparator, whilst only receiving 50% of the full-time salary.

The employment tribunal upheld the employee’s claim. They found the employee had to be available for 53.5% of the days; the full-time comparator had to be available for but was only paid 50% of their salary. This was less favourable treatment on the grounds of being a part-time worker. When considering justification, the tribunal found the employer had a legitimate objective of providing a part-time shift pattern that was workable, practical and flexible. However, they deemed the less favourable treatment was not a necessary means of achieving the objective. They explained a non-discriminatory way to meet the objective was paying 53.5% of the full-time salary; removing the less favourable treatment but keeping the practical effect.

The employer appealed on two grounds, including that the tribunal had failed to consider statistical evidence showing the impact of the less favourable treatment was limited when deciding justification.

The EAT agreed with the ET’s finding that there was less favourable treatment on the grounds of being a part-time worker. With reference to justification, they commented that an employer will find it difficult to justify proportionality if they have not looked at alternative ways of achieving the aim or gathered evidence about the practical impact. However, they held that the tribunal is bound to make a practical assessment of the impact of any unfavourable treatment when deciding proportionality. As they had failed to do this, the case was remitted back to the tribunal on this point.

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*content correct at time of publishing