Gordons Legal Employment Update – 18 November 2016

Is a dismissal fair if a previous warning is inappropriate?

The Employment Appeal Tribunal has recently ruled on ‘manifestly inappropriate’ previous warnings in relation to their effect on the fairness of dismissals. In particular, the EAT considered which factors should actually be relied on by employers when making dismissal decisions.

The case in question, Bandara v BBC, involved a previous employee of the BBC. Mr Bandara was a producer on the BBC Sinhala Service. He had an 18-year unblemished disciplinary record but in August 2013 disciplinary proceedings were brought against him for:

• breaching editorial guidelines by not prioritising the news of Prince George’s birth and instead focusing on the 30^th anniversary of Black July, which has substantially sombre importance in Sri Lankan history – he later changed his mind and posted the Royal story two hours later; and
• shouting at a senior manager when she asked him to book his team onto a training course – he apologised the next day

For these actions, Mr Bandara was given a final written warning. Shortly afterwards, the BBC began further disciplinary proceedings against Mr Bandara into further allegations which included applying pressure to his immediate manager to drop disciplinary proceedings, behaving in a bullying and intimidating manner, creating a culture of fear and making discriminatory comments. After investigation into these allegations, and in consideration that Mr Bandara was on a live final written warning, he was dismissed. In response, he brought a claim against the BBC in the employment tribunal.

The original employment tribunal found that Mr Bandara’s initial final written warning was ‘manifestly inappropriate’ and a warning would have been more appropriate. The tribunal then went about assessing the fairness of the dismissal. The normal position in assessing fairness is to accept any previous warnings as background and not to reopen them. However, in circumstances such as this, a tribunal can go behind the warning. In doing so, the tribunal replaced the final written warning with a simple written warning and on this basis made a decision on the fairness of dismissal; finding in the BBC’s favour.

On appeal, the EAT ruled that this approach was incorrect. They were not disputing that the overall outcome was wrong but found that the replacement of the final written warning should not have occurred. Instead, the substantial merits of the entire case should have been considered as specified under the Employment Rights Act 1996. The amount of weight that the employer had attached to the final written warning and whether they had acted reasonably should have therefore been the central tenets of consideration by the tribunal. The case has now been sent to a new employment tribunal to reassess fairness on this basis.

Comment: Although this case largely focuses on tribunal procedure, the unfair dismissal points that it revolves around are very important. Disciplinary officers will be well advised to consider the appropriateness of all live warnings before coming to a conclusion to dismiss.

If any previous warning is clearly appropriate and reasonable in the circumstances, then it is acceptable to start from that particular warning and rely on it in any disciplinary outcome. However, if the warning is most likely to be considered inappropriate then a decision to dismiss an employee should not rely on it. Instead, dismissal should only be considered if in all of the circumstances of the incident(s) it would be reasonable to do so. Thorough and all-encompassing disciplinary investigations can save significant liability from being incurred.

Protecting data – the ICO’s response to breaches

Two very recent Information Commissioner Office (ICO) updates highlight the range of sanctions that they can utilise to uphold information rights:

• A historical society has been fined for having no policies or procedures relating to encryption, homeworking and the storage of mobile devices which resulted in a breach of data protection law. An officer for the society had a laptop stolen which contained sensitive details of donors to the society. The ICO consequently found that the society failed to take appropriate technical and organisational measures against the unauthorised or unlawful processing of personal data.

In a statement, Sally-Anne Poole, ICO Enforcement Group Manager stated:

“The personal information in this case was so sensitive we can’t give out details of the breach. The historical society knew of the potential consequences of losing the sensitive information and should have taken measures to secure the data.”

As a penalty, the ICO fined the historical society £500, reflecting the nature of the society’s financial circumstances. However, the ICO iterated that most organisations would expect to receive a much larger fine if they committed a comparatively serious breach.

• The ICO have also warned the London Borough of Ealing to toughen up their protection of personal information after a social worker left court documents on the roof of her car and drove off. The documents, relating to 27 people (including 14 children) were lost and have never been recovered. Following an ICO audit, it became apparent that only 68% of permanent staff within Social Care had completed refresher Data Protection training and details of the training levels for non-permanent staff had not been kept. The ICO have ordered the council to give various undertakings committing them to working towards 100% completion of mandatory, online data protection refresher training for all relevant staff by April next year with records and making sure lockable cases are available in every area.

Comment: These two cases show some of the measures the ICO has in its power to ensure compliance with data protection legislation. If the historical society had the capacity to pay, the monetary penalty would have been much, much higher. Of particular note in these two cases is the crucial requirement to make sure your organisation has full policies and procedures in place to protect data and to ensure than any relevant training extends to all staff including temporary employees. Other sanctions available to the ICO include criminal prosecution and monetary penalties up to £500,000, so guaranteeing compliance is highly recommended. The employment team and our data protection expert, Jessica Cumming, can help and advise your organisation to safeguard against such sanctions.

Does a fit note in itself indicate a “disability” under the Equality Act 2010?

In the case of Lee v HSBC, a tribunal ruled that the provision of a GP certificate showing that an individual is not fit for work does not automatically constitute that individual having a ‘disability’ as defined under the Equality Act 2010 (EqA):

“A person (P) has a disability if P has a physical impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

The claimant, Lee, was dismissed after being absent from work for medical reasons, namely moderate anxiety and mild depression which caused her sleep to be disturbed and resultant tiredness and heightened emotions. Following her dismissal, Ms Lee brought a claim against her former employer complaining about unlawful disability discrimination and unfair dismissal. In deciding the claim, the tribunal judge ruled that she was not disabled under the above definition and as such did not have a claim for unlawful disability discrimination.

Whilst medically absent, the claimant did not take her prescribed medication as she did not find them effective and instead relied on herbal relaxants. In addition, the claimant worked an 8-hour shift for a different employer at the weekends during her time off. The employment tribunal judge therefore found that there was no ‘substantial’ adverse effect and instead any effect was ‘more than trivial but only minor’ (in accordance with the EqA guidance). Ms Lee’s condition did not therefore amount to a disability under the definition.

Ms Lee appealed on the basis that the tribunal had not considered her GP’s certification that she was unfit for work. Even though being certified as unfit for work can in itself indicate a substantially adverse effect, especially if the absence lasts more than 12 months, it is not conclusive. It is always up to an employment tribunal to decide on the facts. The EAT dismissed the appeal on this basis and found that the original ET had considered all of the evidence properly and reached an appropriate conclusion.

Comment: This case is not at all surprising: it shows that a Fit Note is just partial evidence. A fit note should be carefully considered as it may well be a “red flag” signalling a disability – references to “depression” are obvious examples where it will normally be advisable to obtain a more detailed medical report if there is doubt as to whether an employee qualifies as being “disabled” under the Act. The case also highlights the importance of considering medical evidence in some detail before conceding disability during Employment Tribunal proceedings. Whilst proving disability may seem straight forward for Claimants, far from it! There are opportunities to contest the point and we have had success in doing so in recent months.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.