The judgements of Employment Tribunals concerning the fairness (or otherwise) of employers' decisions to dismiss is notoriously unpredictable.
To give readers of HR Case Studies an insight into the verdicts of various Employment Tribunals (and also the more significant Employment Appeal Tribunals) here are a few thinly-disguised cases from UK employment case law. Why not pit your wits against the legal experts?
Answers will be posted later!
Case 1
Ms Sickly-Robinson was employed for a period of 18 months before her dismissal (at a time when the qualifying period for unfair dismissal was one year.) During that time she was absent for a total of 96 days. With the exception of her final period of absence, which lasted one month, the rest was taken in short periods of one or two days. For the most part her illnesses were covered by a wide range of medical certificates, but there was no apparent link between them. Doctor’s notes referred separately to dizziness, anxiety, bronchitis, viral infections, cystitis, althrugia of the knee, dyspepsia and flatulence.
Ms Sickly-Robinson had been warned that her absence was unacceptable on three occasions, but no formal medical examination was carried out prior to her dismissal. This was because the company doctor saw no point in doing so given that the illnesses were unrelated and transient.
Ms Sickly-Robinson claimed she had been unfairly dismissed on grounds of illness as no proper medical investigation had been undertaken. The tribunal found in Ms Sickly-Robinson’s favour.
Question
The case progressed to Employment Appeal Tribunal. How would you expect the EAT to respond ?
Case 2
Boddington and two of his colleagues were caught by a manager in a pub at lunchtime. They all worked for a provider of public transport (i.e. a bus company!) All were summarily dismissed because they had broken a long-established and well-communicated ban on all employees entering licensed premises while on duty.
Yet there were differences between the cases.
Two of the men were drinking alcohol at the time they were discovered. Mr Boddington on the other hand, was only eating his lunch.
At Employment Tribunal, the dismissal was held to be fair
Question
What was the judgement of the Employment Appeals Tribunal?
Case 3
Mr Bugner was employed as a foreman in a UK construction company. He was summarily dismissed from his job after one of his subordinates claimed to have been assaulted by him.
In his defence, Mr Bugner presented evidence to show, first, that he had been provoked and, secondly, that in the past employees had not been dismissed for rather more serious incidents of fighting and assault. He therefore claimed the employer had acted unreasonably in summarily dismissing him – on grounds of inconsistency. His previous record of conduct had been spotless.
The employer claimed that the other incidents had occurred some time previously and that their policy on such matters had toughened in the years since. They also claimed that Mr Bugner’s position as a foreman made his case materially different.
Questions
Why should the fact that Mr Bugner was a foreman make his case materially different?
Under what circumstances do you think it is fair for an employer to defend himself in cases of disparity of treatment by arguing that it has recently tightened up its procedures? In what circumstances would such a defence be unfair in your view?