Be Aware - November 2018
Is it necessary to hold a meeting with an employee before dismissing them for some other substantial reason?
An employer can rely upon a number of potentially fair reasons to dismiss an employee under the Employment Rights Act 1996. In addition to the usual grounds, such as capability, conduct and redundancy, the Act allows a further potentially fair reason under Section 98(1)(b) which is a “catch all” called “some other substantial reason” or “SOSR”. Under this heading an employer can justify a dismissal which does not fall neatly into some of the other categories, provided the reason is genuine and substantial.
In the reported case below, the employer proceeded to dismiss for this reason without holding a meeting and the question therefore was whether that dismissal was necessarily unfair, because of the absence of such a meeting? Was it always necessary to hold a meeting before dismissing?
Not always, held the EAT, in Hawkes v Ausin Group (UK) Ltd.
The Claimant was a reservist with the Marines. He signed up (voluntarily) for a 7 week overseas call up. His contract of employment permitted a week’s unpaid holiday per year for his reserve duties. Mr Hawkes informed his employer that he would need 7 weeks’ leave in order to complete the call up. After some enquiries, Ausin Group found out that the call up was not mandatory and did not want him to go ahead with it.
Once the Respondent realised that the Claimant had chosen to go, despite the call up not being mandatory, he was summarily dismissed.
The EAT held that this was not a misconduct case where it would usually be considered necessary to hold a meeting in order to consider the employee’s explanations. It said this was a dismissal for some other substantial reason. In that context, it was open to the tribunal to make a finding of fact that a meeting would not have changed the position because of the Claimant’s firm commitment to the exercise. Accordingly the process followed, with no meeting, was not necessarily unfair.
This case is fairly fact-specific. It should not be taken by employers in the motor industry to mean that a meeting before dismissal, when an SOSR dismissal is contemplated, should always be dispensed with. It does confirm that in some circumstances the absence of a meeting does not always render a dismissal unfair.
Parental Bereavement (Leave and Pay) Act 2018
In UK employment law the rights of an employee to paid time-off to deal with a family emergency is quite limited. Certain types of statutory leave such as maternity, paternity and shared parental leave have pay provisions but when for example a close relative dies or there is some other serious family crisis employees have to rely upon a limited right to unpaid time off to deal with the emergency.
In one particular area, the death of a child, this has always been considered woefully inadequate. The Government has now proposed to fill this hole by introducing the Parental Bereavement (Leave and Pay) Act 2018. This has now received Royal Assent.
Under the new laws there will be a right to two weeks of time away from work for those employees who have lost a child aged under 18. The full Regulations will follow which will contain, amongst other matters, details of how much pay will be payable during the leave.
The Government has said it anticipates bringing the Act fully into place by April 2020.
Time limits for Employment Tribunal Appeals
As with all courts, the Employment Tribunal operates under a strict timeline. As with all courts these timelines can be waived or extended. IN the recent case of The Governing Body of Tywyn Primary School v Aplin, The Employment Appeals Tribunal (EAT) was asked to consider whether a strict approach was required when considering cross appeals.
Mr Aplin initially succeeded before the tribunal. The Respondent appealed and was given permission to appeal. The usual EAT order requires an Answer and Notice of Cross-Appeal to be filed by the same deadline. Mr Aplin applied for an extension of time of 2 weeks over Christmas to file “documentation for the appeal hearing”. The EAT Registrar treated that as an application to extend time to file the Answer but not any Cross-Appeal. Time was extended for the Answer only, though that was not clear from the written order.
Mr Aplin filed an Answer and Notice of Cross-Appeal at the same time as each other. That was in the extended time for the Answer but out of the original time limit for the Cross-Appeal. The Registrar refused an extension of time stating that there were strict time limits and that extensions for both appeals and cross-appeals were not granted except in “rare and exceptional cases.
The EAT held that this strict approach was incorrect. In deciding that was wrong for cross-appeals, the EAT said:
“the analysis of the nature of a cross-appeal and the practical and policy reasons why such a step is reactive [to an appeal]...illustrates why in my judgment the strict approach to time limits for initiating an appeal do not apply to cross-appeals…There is only a cross-appeal if an appeal has been initiated. It would be wrong to reason that because a Respondent [to an appeal] has had an ET Decision for some time they should be bound by the strict approach to timing which applies to appeals.”
Whilst this may be one for the HR specialist it is one to note as it is not uncommon for employees to appeal any decisions should the employer succeed. This is good news for commons sense. However we would strongly advise that any RMI members in this position get advice from a specialist employment lawyer as soon as the appeal is received in order to avoid the issue entirely. Remember, as an RMI member you have access to employment lawyers who specialise in the motor industry.
Sexual orientation discrimination: Christian Bakers and Gay Cakes
One of the more unique discrimination cases in recent years has finally come to a definitive conclusion follow the ruling of the Supreme Court the case of in Lee v Ashers Baking Company Ltd and Others.
Ashers Baking Company is a family-owned business with strong Christian beliefs, particularly with regards gay marriage. Mr Lee asked them to bake a cake with a photo of Bert and Ernie from Sesame Street and the wording ‘Support Gay Marriage’. They declined to bake it due to their religious beliefs and Mr Lee brought a discrimination claim through the Northern Irish courts. The court therefore had to decide whether Mr Lee had been directly discriminated against due to his sexual orientation by the bakers’ refusal to bake a cake.
The case succeeded at first instance and before the Northern Irish Court of Appeal. The ruling by the Supreme Court therefore provides good guidance. The court ruled that as the refusal to bake the cake was not because of Mr Lee’s sexual orientation: that was irrelevant to their decision and the decision not to bake the cake was not direct discrimination in the ordinary sense.
The Supreme Court was also not satisfied that this was associative direct discrimination, as a result of Mr Lee’s likely to associate with the gay community. For associative discrimination to succeed there needed to be an association with particular persons and discrimination due to that association. That was absent in this case. That the message had something to do with sexual orientation of some people was not sufficient to make out the claim.
When considering their decision the Court relied heavily on the rights relating to religion and expression under Articles 9 and 10 of the European Convention on Human Rights. Those rights include an entitlement not to be forced to express a political opinion in which you do not believe. Infringement of those rights could not be justified by an obligation to supply a cake iced with a message with which the bakers profoundly disagreed.
As motor traders we are unlikely to be selling many cakes. However, this case does set important principles that will apply in claims of discrimination going forward.
Don’t forget, all of the advice above is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, call the direct member helpline number or 0845 305 4230 at any stage for advice and assistance as appropriate.