IGA News

Be Aware – October 2021

Be Aware – October 2021

30 September 2021

Case Study: Right to Appeal

“I am a small employer and have had to make someone redundant when they returned from furlough. I have already told him he is dismissed, but now he is saying he wants to appeal. I don’t think I will change my mind. What should I do?”

The right of appeal is a very important part of employment law. In considering whether you have to offer an employee a right of appeal against a decision it really depends on a number of factors, including the decision from which they are appealing and their length of service.

The first thing to say however is that the right of appeal shouldn’t always be viewed as a problem. A well-run appeal can rectify problems in the original decision, so it is often advisable and best practice to offer an appeal. The ACAS Code of Practice on disciplinary and grievance procedures (available on the ACAS website) gives guidance which is taken into account by Tribunals. The Code is essential reading.

In the above scenario of course, an employer should always try to offer an appeal to another officer or manager of the company, who was not involved in the original decision. Ideally of course they should be more senior than the person who exercised the previous decision and have the right to overturn it if they think it was wrong.

A failure to offer a right of appeal, particularly in a dismissal, will often render a dismissal unfair (provided, that is, the employee qualifies for the right to bring an unfair dismissal claim). Where there are contractual rights to appeal in the employee’s contract or in the handbook, then it is also the case that an employer’s failure to follow their own procedures is more likely to render any decision unfair and, furthermore, can also give rise to a separate claim for breach of contract.

Tribunals are bound to take into account the size and administrative resources of the employer when looking at how well an appeal is run. There is case law to the effect that an appeal process does not have to be perfect and the smaller the employer, the more a Tribunal should exercise some discretion or leeway when examining the processes followed.

The Court of Appeal (Gwynedd Council v Barratt and another) has recently confirmed that in a redundancy situation the absence of an appeal will not of itself be fatal to an employer proving a fair dismissal to a Tribunal. An appeal is just one of other factors to consider when a Tribunal consider unfair dismissal on the grounds of redundancy in determining fairness.

That said, as an employer you should wherever possible try to offer the right of appeal. There are some circumstances with short serving employees under 2 years’ service where this could be questioned, but in such circumstances, you should always seek legal advice.

Case Study: Redundancies and alternative roles

“We have an employee who has been made redundant and was invited to apply for another role with us (rather than simply being offered the role). Can they still claim a statutory redundancy payment if they decide not to apply?”

An employee with at least two years’ continuous employment is entitled to a redundancy payment when they are dismissed by reason of redundancy. It will be a question of fact whether, in the circumstances, an employee has been dismissed (and whether by reason of redundancy).

There are specific situations in which an employee is considered not to have been dismissed, such as when suitable alternative employment is offered within a particular time frame and accepted.

Assuming that the dismissal is by reason of redundancy:

  • If the employee’s contract of employment is renewed either immediately or within four weeks of the dismissal, then the dismissal is deemed never to have happened—if there is no dismissal, there is no right to a redundancy payment.
  • If the employee is re-engaged under a new contract of employment either immediately or within four weeks of the dismissal, then, provided that the offer of a new contract was made before the old contract was terminated, the dismissal is again deemed never to have happened. Correspondingly, there is no right to a redundancy payment

In either of these situations, unless the terms and conditions of the renewal or re-engagement are identical to the previous terms and conditions, the employee is entitled to a statutory trial period of at least four weeks, without prejudice to their redundancy rights.

If the employee refuses the offer of a new or renewed contract, then the dismissal stands but the employee loses their right to a redundancy payment if the following conditions are satisfied:

  • The offer was made before the old contract was terminated.
  • The renewal or re-engagement is to take effect immediately upon the termination of the employee’s employment under the old contract or within four weeks thereafter.
  • The job offered is the same as the old job or else constitutes suitable alternative employment in relation to the employee.
  • The employee unreasonably refuses the offer.

In relation to what validly constitutes an ‘offer’ for the purposes of the statutory scheme:

  • The offer need not precisely specify the date on which the new employment is to begin, but the dismissal ‘vanishes’ only if the new employment actually begins within four weeks of the old.
  • The offer of renewal or re-engagement must be real and not a sham, in the sense that it must be an offer which the employer reasonably expects to be able to fulfil.
  • The offer may be written or oral.
  • The offer has to be one which is specific enough to be capable of acceptance.
  • The offer need not be addressed to each employee individually, but it may be made collectively, e.g. by posting a notice on the firm’s noticeboard. In that event, however, it is for the employer to prove as a fact that the offer was effectively communicated to the employee in question.

It will be a question of fact whether an offer was made at all. An employee can only be at risk of losing the right to a redundancy payment for unreasonably refusing an offer of re-employment, if the employer has actually made a proper offer of further employment in the first place.

It is unlikely that a general invitation to an employee to apply for a vacancy, without more, would equate to an offer of new or renewed employment for the purposes of the statutory scheme. It follows that a failure to apply for such a vacancy is unlikely to amount to a refusal of an offer of renewal of re-engagement.

Case Study: Parts Warranties

“I fitted a battery for a customer with a 3-year warranty. The customer came back after 2½ years with complaints that the battery wasn’t working properly. The customer refused to bring the car back and went ahead and got a replacement battery fitted by Ford. He is now threatening me with legal action if I do not reimburse him the full amount of the battery plus labour costs. What can I do?”

1 - Establish the facts

The first priority should always be to establish the facts of the case. Where you are contacted by a customer, whether you agree with them or not, you need to get as much detail as possible so that the matter can be investigated properly. Ideally the customer should be asked to put their complaint in writing and include any evidence they have.

The more accurate the facts, the better your decision will be.

2 - Is it a warranty claim or a breach of contract?

When you sell goods or services to consumers you cannot exclude their statutory rights. Where the parts were not as described or fit for their purpose etc, when supplied to a consumer then even 2½ years later they will be entitled to compensation.

If you sell goods or service and provide a warranty you need to see this as 2 contracts (one for the goods one for the warranty). In the event of a fault the customer would be free to claim either under a warranty or claim for breach of their consumer rights.

Where a consumer claims a breach of contract, after the first 6 months it is for them to prove that the issue is a fault for which you are responsible. IF they can, they will be entitled to their reasonable losses and whilst a judge will not be happy if the consumer goes elsewhere, if the battery was faulty when you sold it then you would be liable for the reasonable costs of rectifying the fault.

However, if the consumer cannot prove that the goods or services were faulty at time of sale, they can only claim under any warranty provided. There is no requirement to warrant any work or any parts. As such a warranty can legitimately require the consumer to return the vehicle to you and place reasonable conditions on the costs covered.

Is it a reasonable adjustment to protect pay permanently when disability means that an employee can no longer do their role?

No, held the EAT in Aleem v E-Act Academy Trust Ltd.

This case involved a teacher who had developed mental health issues and as a result was unable to teach. As the issues were sufficiently serious, they were deemed a disability and her employer moved her to an alternative role as a reasonable adjustment. As this role attracted lower pay, Ms Aleem was paid for a period of 3 months on her higher salary during which time her employer clearly stated this was a temporary measure during her probationary period in the new role. When the role became permanent, Ms Aleem’s pay was reduced and employment tribunal proceedings were instigated on the basis that she felt that the pay reduction was discriminatory, and it was a reasonable adjustment for her pay to be kept at the higher rate.

At the initial hearing the Tribunal dismissed her claim to be paid at the higher rate and found this was not a reasonable adjustment.

On appeal the EAT supported this finding. The EAT found that whilst it was reasonable to continue to pay the higher rate during any probationary period and whilst a grievance was being raised, as the higher pay was clearly and consistently a temporary measure once this was completed it would be wholly unreasonable for this to continue.

In conclusion

This case is a welcome clarification for employers. It is interesting to note that this case particularly addressed issues from the earlier case of G4S Cash Solutions (UK) Ltd v Powell, which found that continuing a higher rate of pay for a lower paid position would be a reasonable adjustment. It is clear now that this will not always be the case.

It is important to note that one of the key differences are the actions of the employers in these cases. In Powell , the employer stated that the previous pay level would be continued as part of an agreement to return to work. In Aleem, the Employer had clearly stated at all times that the higher pay was a temporary measure and that her pay would be adjusted after the grievance and probation period concluded and the Claimant accepted the job on this basis. It is therefore vital that employers are clear in their communications, particularly if any adjustments are or may be temporary. Provided employers are clear at all times, the long-established principle that it will rarely, if ever, be a reasonable adjustment to continue pay for a role that the employee is no longer performing.

Employment Tribunal procedure: events post-dating the presentation of an Employment Tribunal claim and time limits

Most time limits for presenting a claim to the Employment Tribunal are three months from the date of the relevant event, such as the date of dismissal in an unfair dismissal case or the date of an act of discrimination with the important caveat that conduct extending over a period is to be treated as done at the end of the period. For example, when looking at a pattern of harassment the time limit would come from the last time the harassment took place.

In the recent case of Sakyi-Opare v Albert Kennedy Trust the Employment Appeal Tribunal (EAT) has held that, in determining that the Claimant had not brought her claim within the three-month time limit, the Tribunal was in error in failing to address matters which post-dated the presentation of her claim.

Facts

The Claimant was studying social work at Brunel University. She had undertaken a placement with the Respondent, who is an LGBT homelessness charity. During the placement she alleged that she was the only Christian in the office, and that employees of the Respondent would denigrate and ridicule her faith. The Respondent then terminated the placement on the basis that there was not enough staff to provide her with supervision.

Following the placement, the Respondent had raised concerns with the Claimant’s university about inappropriate comments she had allegedly made. As a result, the university proceeded to institute ‘professional suitability proceedings’ against the Claimant. The Claimant disputed the allegations and argued that they were an attempt by the Respondent to wrongly portray her as unsuited to being a social worker, and as prejudiced against LGBT people.

The Claimant brought a claim against the Respondent claiming discrimination and harassment on the grounds of her religion. She presented her claim to the Tribunal on 5 October 2018. In respect of the acts which she sought to establish were discriminatory, the Tribunal at a preliminary hearing considered that even if that last of them happened on 24 May 2018, then the deadline for presenting her claim was 23 August 2018. It also found that it was not just and equitable to extend the time limit in the circumstances.

During the preliminary hearing on 1 March 2019, the Claimant had made an application to amend her claim to raise new matters. Those matters included a meeting which the university had required her to attend on 22 January 2019 relating to the professional suitability proceedings, which arose from the Respondent’s complaint. The Claimant argued that the Respondent’s involvement amounted to a continuing act of harassment against her, and on that basis, her claim was not out of time, since any unlawful treatment was ongoing. The Tribunal held that the meeting did not constitute continuing harassment and that it was a separate issue, and her case was dismissed for being out of time.

Decision

The EAT upheld the Claimant’s appeal. It found that the Tribunal did not properly deal with the substance of Claimant’s application to amend her claim form, to include the further acts of alleged harassment. The EAT determined that there is no reason why a Claimant cannot amend their claim to include a cause of action that occurs after the presentation of a claim and only after determination of that application should the Tribunal consider time limit issues. This was particularly so in circumstances when those events would have been a potentially relevant factor in deciding whether or not the claim was in time.

Comment

The case is a useful reminder to employers that particularly in claims involving claims of discrimination, just because the case is brought out of time, does not mean that Claimant cannot bring still bring their claim. Events which post-date a claim could later be included in the claim and may mean that a claim, which initially appears out of time, is actually in time.

Conclusions

As always, what is appropriate will depend on the facts. Don’t forget to carefully document all conversations and to evidence all telephone calls, emails and letters for future reference.

As this is over 2½ years old, anything could have happened to the battery. It would be for the consumer to prove the battery any breach of contract, and you are a little safer if you take a hard line. Investigate their complaint and ensure the costs have been incurred. Write back pointing out it is a return to base warranty and that he is asked to bring it back to you first and deny liability. As he has not complied with the terms of the warranty you have no option but to reject the claim.

Be prepared for potential legal proceedings so consider whether to offer a gesture of goodwill to avoid any dispute.

General Note

Don’t forget, this advice 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, contact us at on 01788 225 908 any stage for advice and assistance as appropriate.