Dismissal Due to Drink Driving Ban

We are in the motor trade and one of our sales people has just lost his driving licence due to drink driving, for 2 years. He is 59 years old and there is nowhere else to redeploy him to within the organisation. He cannot do the job without taking customers for test drives, so we have told him that it is likely that he will be dismissed due to a lack of capability.

Peter replies:

One of the potentially fair reasons for a dismissal arises in circumstances where an employee could not continue to work in the position held, without contravention of a statutory enactment i.e. it would be illegal for them to do this part of their job.

The main example of this type of dismissal is where an employee has been banned from driving. If the dismissal is for contravention of a statutory enactment, or for ‘some other substantial reason’ – SOSR, the employer will need to demonstrate that consideration has been given to any adjustments to the role, or other suitable vacant positions, prior to taking the decision to dismiss. For example, it is necessary for an employer to consider how essential driving is to the work carried out by that employee. It is also necessary for an employer to follow a fair process before deciding to dismiss that employee. For example, the employer should:

 

  • consult with the employee
  • consider any alternative to dismissal, such as any opportunities to re-deploy the employee
  • consider the length of the ban, a couple of months is very different from a ban of well over a year in duration
  • take into account the size and administrative resources of an employer
  • assess the impact the ban has on the employee’s ability to perform their role
  • consider any adjustments which can be made to the role, for example, would the employee’s colleagues be able to step in?
  • has the court case been covered in the media with a direct link to the employer that has led to bringing the organisation into disrepute

It may also be possible in such cases to dismiss for SOSR provided a fair process has been carried out.

An example from case law is Appleyard v FM Smith (Hull), EAT. In this case a maintenance fitter lost his driving licence. It was a requirement of the job that he held a current driving licence. Mr Appleyard was required to carry tools and spare parts in his vehicle and therefore it was impractical for him to use public transport. The employer looked at:

  • the possibility of re-organising the work so that he was based at the depot
  • the possibility that he could get lifts from other employees
  • the size of the team
  • the length of the ban – he lost his driving licence for 12 months

As it was a small team, none of the suggestions was practicable. Mr Appleyard was dismissed and this was held to be a fair dismissal in the circumstances.

Capability in legal terms is about ill health or incompetence, not legal requirements. The key to success with such situations is to be careful and considered, rather than having a knee-jerk reaction, and not thinking about the correct legal categorisation.

Many organisations have a rule that losing a driving licence is a conduct issue, which is probably true in the circumstances of a drink-drive ban, but it is probably safer to dismiss for SOSR, or rely on statutory illegality as the reason for dismissal. In any event warn the employee of the potential consequence of dismissal in the event that no other suitable options are found.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Flexible Working Request

We have received a flexible working request from an employee nearing the end of her maternity leave. We have held a meeting and she has clearly not thought it through in relation to its impact on the business, but I have told her Line Manager that we cannot turn it down, so have to go along with what she wants.

Peter replies:

All employees have the right to request flexible working after 26 weeks employment service, as long as they have not made a similar request in the previous 12-month period. However, it is a right to request, not a right to demand and receive, contrary to what has almost become an ‘urban myth’.

The right is simply the right for employees to request changes to their working hours, working times or location, and if granted, such changes become permanent changes to their terms and conditions of employment. This is often associated with requests to work part-time, following return to work after maternity leave, but is certainly not limited to that scenario.

Employers may only refuse requests where there is one of eight business reasons for doing so:

  1. the burden of additional costs
  2. an inability to reorganise work amongst existing staff
  3. an inability to recruit additional staff
  4. a detrimental impact on quality
  5. a detrimental impact on performance
  6. detrimental effect on ability to meet customer demand
  7. insufficient work for the periods the employee proposes to work
  8. a planned structural changes to the business

Case law on this right is rare, but recent cases have been sympathetic to employer difficulties, and have emphasised that it is for the employer to run their business as they see fit. Tribunals will be reluctant to interfere with an employer’s business judgment. There is a risk of an adverse finding if the employer does not properly follow the set procedure and the ACAS Code on handling such requests. There is also the possibility of a sex discrimination claim, but if the approach is non-discriminatory then the employer should be safe.

We advise clients to keep an open mind, and focus employees on the requirement that they must give an explanation on what effect, if any, the employee thinks the proposed change will have on the organisation, and their suggestions as to how the effect may be dealt with.

If you are not convinced  by the workability of the employee’s proposal, and can substantiate this on more than ‘feelings’, then you should say no to their request. They do, however, have the right to appeal, and they should be clearly told of this in your letter explaining why you are declining their request. You will then need to prepare for an appeal by finding someone senior, who was not previously involved and who is open to finding a workable compromise, providing the employee is also open to finding something workable. Consideration should also be given to a trial period, if the appellant Manager is willing to give it a try.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Prison Dismissal

We have an employee who has long service that has just been sentenced to two months in prison for non payment of some bills.  Presumably it is a straight forward dismissal because he is in prison or maybe he has dismissed himself so we need to do nothing?

Peter replies:

It is not that straightforward. There is no such thing as self dismissal and he has not resigned.

Case law has established a number of factors for the employer to consider in these circumstances.

  • The nature of the offence.
  • The length of the sentence.
  • The nature of the employee’s job.
  • The effect of the employee’s absence on the business.
  • The damage (if any) to the employer’s reputation.
  • The employee’s previous track record, length of service and disciplinary record.
  • Whether in all the circumstances a reasonable employer could have been expected to wait.

You should carry out an investigation and conduct a fair disciplinary procedure, as far as possible in the employee’s absence, before deciding whether or not it would be reasonable to dismiss him.

If the employee is likely to be in prison for a long time, it may be fair for the employer to dismiss him on the grounds that he will be unable to perform the contract of employment — known as frustration of contract. Frustration is a difficult legal concept in employment law terms, as tribunals are usually reluctant to accept it as a reason, because it deprives the ex employee of any legal redress.

Frustration of contract is unlikely to apply for a relatively short prison sentence. There is a huge difference between ten years for a violent crime and three weeks for non-payment of maintenance. If the employee is imprisoned for a short time, for an offence that is unrelated to his or her work, it may be reasonable for the employer to hold the employee’s job open until he or she returns. You must still act reasonably in concluding that the employment is ended for that reason.  The doctrine of frustration is normally accepted by the courts only where the frustrating event renders all performance of the employment contract clearly impossible. Our advice would be that it should only be actively considered for longer periods of imprisonment.

ACAS recommend taking disciplinary action if you want to terminate employment.

If an employee is sentenced to prison for a short period, (which 2 months is) the best thing to do is treat it as an absence issue and deal with as well as you can with someone with limited ability to communicate. Investigate the circumstances before making a decision and try to give some opportunity for them to have their say even if it is through an exchange of letters.

Alternatively, if the offence relates to your business or the employee’s actions have adversely affected the reputation of the business you may be able to dismiss him for some other substantial reason (SOSR) but this would still require following a proper procedure and applying sound judgment.

Doing nothing is not an option in practical terms, if you do not want him back. It may well be wiser and safer to do nothing other than to keep in contact and welcome him back to work after his sentence. Finally you do not have to continue to pay him whilst you are sorting out the situation, as for the moment he is currently not able to fulfil his work duties.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Dismissal for Some Other Substantial Reason

We want to get rid of a sales employee who has been with us for about 3 years but it is not really for a performance or even a conduct issue.  The employee meets his targets but is not liked by some of our key customers and we are worried that if this dislike continues we could start to lose business.  We have nothing in writing but some of the customers have spoken to our Sales Director about this issue.  The issue is simply down to the fact that our customers like to have a bit of a laugh and joke with the people they do business with.  He is not perceived as having much of a sense of humour and on our corporate hospitality days with our customers he has failed to build up any rapport. He tends to keep himself distant from the rest of the sales team but no one is complaining about him in-house.  We believe it would be better to dismiss due to conduct but with the fall back of capability.

Peter replies:

As you have identified this is not really a capability or conduct issue. Dismissal for Some Other Substantial Reason (SOSR) is a potentially fair reason for dismissal. It is widely seen as an important residual or “catch-all” category of dismissal, intended as a safety net — enabling employers to sweep up reasons for dismissal that do not fall conveniently within other categories. The label has been held to apply to dismissal in a variety of situations, including:

  • Re-organisations leading to dismissals arising out of (usually changes to terms and conditions), which fall short of constituting a redundancy.
  • Dismissal of temporary employees who are replacing employees medically suspended or pregnant. Individuals should always be advised of the temporary nature of the job.
  • TUPE dismissals for a genuine economic, technical or organisational reason entailing changes in the workforce.
  • Dismissals at the behest of third parties and to situations where an employer takes action to protect its legitimate business interest.

It is often regarded as a useful category of dismissal for senior employees whose leadership failings do not fall neatly into either the “conduct” or “capability” boxes. It has also been a useful category for dealing with particularly troublesome employees who are unable to get along with their colleagues. The clue is in the term, it has to be substantial and not just whimsical, trivial or capricious. Dismissal still has to be reasonable which means that some effort ought to be taken to effect an improvement and to consider alternatives to dismissal.

As always, the employer must follow a fair procedure in dismissing the employee under the SOSR label. There is case law where dismissal of a Finance Director for having an ‘awkward personality’ was held to be fair despite a lack of warnings.  In this case, however it would be wise to raise the issue with the employee to see if he is prepared to commit to changing his approach to customers. If he is not prepared to acknowledge the problem, then having a structured protected conversation and offering a settlement agreement might well be the best approach. If he does not accept that proposal, then follow a fair procedure and give him his full entitlement to notice or payment in lieu of notice assuming that the problem does not go away.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Fixed Term Contract Termination

We took on a person to do a fixed term contract for a four month period. We reached three months and it was clear that there will be no work for them after the 4 month limit. We thought about just telling them on the final day that they would not be extended but decided that we ought to treat this as a redundancy so have put all the people in that section at risk whilst we conduct a formal redundancy selection criteria exercise. Our other staff are now complaining about this.

Peter replies:

You really have gone from one extreme to another. You were right to avoid just letting the person go because ‘their notice period started on day one’ but this is not a situation which calls for the formality/stress of a redundancy procedure.

The fair steps for employers to take when dealing with the end of  a number of long term fixed-term contracts might include  the following stages as part of a redundancy or dismissal procedure, although the procedure would be adapted to different circumstances:

  • A reminder. A reasonable period before a fixed-term contract is due to end it is advisable to remind the employee in writing of the potential end date.
  • A meeting. Before the end date a meeting should take place with the employee in which they are reminded that the contract is due to end on the given date. This meeting should be followed up by a letter which confirms the risk of dismissal at the end of the fixed term.
  • Suitable alternative work. Any vacancies should be considered and offered to the employee before the end of their current employment if they are suitable.
  • Dismissal. A reasonable time before the scheduled end of a fixed-term contract, a dismissal notice should be sent confirming the expiry of the fixed term and including information and the right to appeal.
  • Appeal. Fixed-term employees can appeal against notice of dismissal on grounds of redundancy.

Employees on fixed-term contracts which end are entitled to a statutory redundancy payment if they have worked continuously for the employer for the qualifying period of two years.

It is not necessary to follow the structure contained in the Acas Code of Practice on disciplinary and grievance procedures, but in some circumstances it is good practice, even though the Code does not specifically apply to non-renewals of fixed-term contracts (or to redundancy dismissals). Following the Acas procedure when a fixed-term contract expires has some benefits. Employers need to be careful; and the prudent employer will continue to follow a procedure which encompasses at least the three main steps applicable under most procedures (that is letter, meeting, appeal) to try to reduce the risk of any claims. In many cases, the employee will be aware that the employment may not be renewed and may waive their right to a formal meeting under the procedure offered by the employer.

You should therefore withdraw the redundancy consultation process with as much grace and dignity as you can manage, or conclude it quickly and do what you can to restore trust and morale.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Maternity Leave and Keep in Touch Days

Udidwot small pic

We are really displeased that a key employee is wanting to take her full 12 months maternity leave, so we have told her we expect her to come in to do the payroll for us one day each month, and we will call them KIT days.

Peter replies:

The law does encourage employers and employees to stay in contact with each other during maternity leave. Prior to the introduction of Keeping in Touch (KIT) days in the Work and Families Act 2006, it had not been possible to do so without bringing the leave to an end, or losing maternity pay.

An employee who is on maternity leave can work for her employer for up to 10 days by mutual agreement. Important points to note include the following:

  • The employee can go in for one hour or a whole day – this will still be a Keeping in Touch day.
  • The decision to undertake a KIT day must be made by agreement between the employee and the employer.
  • The days can be taken singly or in blocks
  • The employer has no right to demand that any such KIT work is undertaken, and the employee has no right to undertake such work.

So there is no obligation on either party to agree to the days, which means that neither party can insist on work being carried out. Furthermore if a woman is dismissed or otherwise penalised for refusing to do such work, she can claim automatic unfair dismissal or unlawful detriment.

It is all a matter of agreement, neither party can demand or insist. Reasonable contact can be made from time to time by the woman, or the employer to discuss arrangements for her return by asking about KIT days. By maintaining a minimal, but regular, presence during maternity leave – again bearing in mind there is no obligation for the employee to do so – staff can stay abreast of important workplace issues. This provision can make things easier for both the organisation, and the employee. It will allow a smoother reintroduction to the team, without employees having to hit the ground running after a long period of absence. The rate of pay is always a matter for agreement between the employer and employee, and may be provided for in the employment contract, or as agreed on a case-by-case basis.

Your actions are close to amounting to a detriment, and could even result in a claim for constructive dismissal, or discrimination on the grounds of sex or pregnancy/ maternity. You therefore need to apologise for your ‘expectation’ and seek to persuade her that it would be good for her to keep in proper contact with the world of work. This should be done in a much more friendly and constructive way than your first attempt.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Long Term Sickness – Automatic Dismissal

Udidwot small pic

We have a policy and it is also in our contracts of employment which say that we can dismiss after 26 weeks of continuous absence from work.  We are considering dismissing someone and they have said that this would be no defence to a claim for unfair dismissal and disability discrimination. Our wording is very clear and it has never been challenged before.

Peter replies:

Such a policy or contract term will mean there is no breach of an express term of the contract should dismissal occur, but it will not necessarily mean that the dismissal is fair or otherwise safe. As well as contractual terms, employers should also be wary of the implied duty of trust and confidence. Relying on out of date documentation, just because it is in the contract, is invariably a very unwise approach.

In considering the issue of fairness, a tribunal will consider the process followed by an employer. In managing long term sickness absence, it is always prudent for an employer to seek medical advice, and to consult with the individual.  Doing neither is a recipe for a successful unfair dismissal claim. If you have not been communicating with them regularly, you are already on the back foot and you should have been focussing on what might be done to get them back to work.

Getting good medical advice will also help with your efforts to assess whether the employee’s condition amounts to a disability, in accordance with the disability discrimination provisions of the Equality Act 2010. If a medical report identifies a disability, employers have a duty to make reasonable adjustments. This duty is broad and could cover physical adjustments to premises, or the provision of equipment to assist them in carrying out their duties. It can also mean adjustments to the role itself, by removing certain duties and reallocating them, changes in hours or place of work, or providing further training and supervision. It might also involve transferring to another vacant post. Losing a discrimination claim is usually very expensive.

Good managers will be aware of their legal responsibilities to make reasonable adjustments for disabled people, and that the duty does not stop with the return to work but continues as the situation changes. Very good managers will do this regardless of whether or not the employee fits the convoluted legal definition of ‘disabled’, just because they want to do the right thing i.e. good people management.

You need to get early advice, preferably from an Occupational Health professional rather than their GP; keep talking to them, and considering their wishes and realistic expectations. You may ultimately decide to dismiss (with notice), but it will be on a much safer basis than you are currently working from. You should also review all your contracts and policies for similar outdated wording.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Premature Action

Udidwot small pic

 

We are thinking of dismissing someone due to gross misconduct. We have suspended the employee, but it is likely to be at least a week until they are dismissed. Her line manager has just placed an advert for a replacement on our website, could this be said to be a bit premature?

Peter replies:

It is very much premature and could be potentially fatal to the defence of an unfair dismissal claim assuming she has over two years service.  Even if she has short service such an advertisement implies acting in bad faith.

One of the key factors, which determine whether a dismissal is likely to be found to be fair, is that the decision maker approached the matter with an open mind. It is a part of natural justice. Imagine how you would feel if you found out that a decision had already been taken about you, when you thought that the decision-maker was going to listen to all of what you had to say, before carefully weighing things up. Advertising for a replacement suggests that only one course of action is possible i.e. dismissal, hence creating a vacancy.

Biased decision makers, who approach a problem with only one solution in mind, are highly unlikely to succeed with defending an unfair dismissal claim.

You should immediately withdraw the website advert and hope that no-one noticed it! You might be able to justify recruiting someone on a very short-term basis to cover their absence, but you would need to be able to defend your actions and show that the need was urgent, and very definitely for a temp, with no indications of permanency.

You will then need to be scrupulously fair in your handling of the disciplinary issue to further reduce your risk. This means not only being very thorough with your investigations and the disciplinary meeting, but carefully reviewing the nature of the penalty. Just because you are calling it gross misconduct does not mean that a Tribunal will see it the same way. It will need to be sufficiently serious to strike at the root of the contract, and fundamentally undermine the trust and confidence you need to retain them in their job.

Furthermore tribunals will consider whether dismissal is the appropriate response, or whether a transfer or demotion or some other such penalty would have been correct. A tribunal will probably not interfere, but you cannot just jump from a finding of gross misconduct to summary dismissal, without further thought. Factors to consider include:

  • previous record,
  • length of service
  • any mitigating circumstances.

The tribunal will judge the reasonableness of the employer’s decision to dismiss, on the standard of a “band of reasonable responses”, assessing whether the employer’s decision was one which falls outside the range of reasonable responses of reasonable employers.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

DBS Checks

We have to do enhanced DBS checks for our staff given the fact that we work with vulnerable adults in a care setting.  We interviewed a man in his mid thirties who, in many ways, would be ideal for the job, however he disclosed at interview that he had been given a caution for a minor theft when he was a teenager, and at 19 he was convicted of driving without insurance, he was given a fine and banned from driving for 6 months.   I said to him that we could not employ him as a consequence, as those two convictions will appear on his DBS check.  We are right surely in taking this approach?

Peter replies:

If he is otherwise ideal why would you not want to employ him? One in three men under the age of 30 has a criminal record and the social consequences of not employing many of these men are colossal. Many employers will be employing people with a criminal record, and are blissfully unaware of this, and even if they found out would just shrug their shoulders and say “So what, he is doing a great job and we trust him”. Everyone deserves a second chance.

Nacro (the crime prevention charity) recommend that it is good practice for employers to have regard to the following factors:

  • whether the conviction (or other matter revealed) is relevant to the job in question
  • the seriousness of the offence
  • the length of time since the offence was committed
  • whether there is a pattern of offending or other relevant matters
  • whether the applicant’s circumstances have changed since the offending behaviour
  • the circumstances surrounding the offence
  • the explanation offered by the individual involved.

Nacro recommends that employers do not have a blanket ban on employing ex-offenders, but instead carry out a risk assessment, which is relevant to the sector, position and situation. We would concur with this approach.

It is important to maintain an open, non-judgemental attitude when undertaking this risk assessment. The aim of this procedure is to ensure that the applicant receives a fair and objective assessment as part of the employer’s commitment to preventing unfair ‘discrimination’ against ex-offenders.

The safety and well-being of your service users, staff and other stake-holders should be the overriding priority at all times You will also be seeking to maintain the reputation and good standing of your employees, and your reputation as a business. You must be careful, but should not be too risk averse. Presumably like any other employee he will be on a probationary period, so they will have a chance to prove themselves, and you will have a chance to assess just how good they are at the job.

You should also think about developing a policy to guide your future actions and getting advice from support organisations such as Business in the Community.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

 

Not Quite Retiring – Part Time

I have two senior members of my organisation that want to retire. We would like them to undertake roles as consultants for a few months following their retirements to provide expert consultant help on a  part time basis (a day or so a week). They are happy with this solution as they feel it will support their transition into retirement.

Neither want to be contractors and deal with their own tax returns/ invoicing us etc. but instead are asking for part time, fixed term contracts. Whilst I would like to support this, I also want to protect the business and ensure that no previous service will count should we find ourselves in a redundancy situation. I have constructed a contract that states that no previous employment with the organisation will count as continuous service. There will be no actual break, other than a week off.

Peter replies:

One of the legal dangers is that any agreement now to have a gap, and then restart employment has risks. Clearly you are all happy now and no one is thinking this could go wrong – but it could do so.

Even if the gap were longer than 1 week, the break may not be effective, because there is a clear intention that they rejoin you. This is likely to lead a Tribunal to conclude that the overall intention was to ensure continuity. In theory if the employer does wish to re-employ the redundant employee, but also wants to ensure that his or her continuity of employment is broken by the intervening redundancy, there should be a clear calendar-week break (starting on a Sunday) between the termination of one period of employment, and the commencement of the new period.  But this will only work, provided that there has been no agreement between the parties to preserve continuity. The existence of a contract suggesting no continuity will not unduly sway a Tribunal. They are obliged to follow the rule that, it is not possible to enter a contract which deprives an employee of their statutory rights. There is also a statutory presumption in favour of continuity, so you would have an uphill battle.

It is the Employer that wants them to stay, rather than the employees pushing for it, so if it did ever get to a redundancy stage, then it feels fair that they should benefit from any redundancy pay due. Remember that redundancy pay would be based on their new part time earnings, so at one day a week it might not actually be that much money from your point of view. It is worth doing the sums to see what the reality is. I would guess that these employees are trusted and respected as you want to retain them, so a bit of redundancy money (which might never occur) is a small price to pay and also avoids any messiness/deceit/ambiguity about whether they have really had a break in service.

Give them the part-time fixed term contracts they have asked for, so that they are happy, and there is a logic for either party to withdraw honourably, should it not quite work out as hoped for.

If you want a more water tight situation, where you do not risk later potential claims of continuity of employment, make sure there is a clear break of about a month in their employment before considering inviting them back on a part time basis.  Also, make sure there is no paperwork, or email trail, that records what has been agreed in advance, and draw up the new part time contracts after the break in employment.  

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

1 2 3 11