Thursday, 11 March 2010

Fancy your chances as an Employment Tribunal chairman?

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.

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

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.

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?


  1. Man in the street view is that Sickly deserved to go, Boddington deserves a slap but keeps his job and Bugner stays on. I expect the tribunal will find the opposite.

  2. Man in the street: Thanks for the comment!Not bad,two out of three!

  3. Certainly if Ms Sickly-Robinson’s case was to happen today I would suspect that an EAT may view the dismissal as unfair because the employer had not explore any reasonable adjustments that may be required. It may well judge that the company should have explored whether there was any under lying reason behind these seemingly unrelated absences (other that general malingering and general laziness). From a personal point of view – shame they didn’t dismiss her sooner!

    Interesting case re Mr Boddington. On first glance you could say that as Mr B’s lunch was of a solid rather than a liquid variety then he should be handled less harshly than his colleagues. However, we are not told what the usual sanction for the ‘long-established and well-communicated ban on all employees entering licensed premises while on duty’ was. Could go either way on this one: either he didn’t consume alcohol and therefore to dismiss for being in a pub (and presumably in close proximity to temptation) was harsh OR he had broken a well established rule and the fact that he hadn’t had a pint of the family brew was neither here nor there.

    Mr Bugner’s dismissal should stand. How the company has handled past cases does not prevent them from tightening up their policies and procedures in the future. As a manager he should know better but equally with the revised view that the organisation is now taking, should an incident happen amongst other members of staff, the sanction would hopefully be the same.

    Always an interesting day to go and observe tribunals – have seen some classics!


  4. For the would-be legal eagles, here are the answers to the puzzles above:

    Case 1 is actually International Sports Co Ltd v Thompson (1980)

    At Employment Appeal Tribunal, the original judgement was overtaken. They believed that the employer had investigated her medical record fairly, had allowed her opportunity to state her case and had given clear warnings that dismissal was likely if she did not improve her attendance record.

    Case 2 is actually Merseyside Passenger Executive v Millington (1989)

    At EAT it was found that it was unfair for the company to have applied the no drinking rule in a blanket fashion to all three employees, thereby judging his dismissal unfair.

    Case 3 is actually Proctor v British Gypsum Ltd (1992)

    As stated in the case study, the company successfully argued that as Bugner/Proctor was a foreman, that made a material difference. Also, as long as a company has communicated a change in policy, any previous lenient treatment need not be regarded as the only way to treat employees.

    Hope you enjoyed the challenge!

  5. Well they won't be offering me a job any time soon then!!

    Always fascinating to see how different people view the evidence provided and apply that good old 'reasonableness' test.


  6. Well, Mr. Payday: Did your original comment have anything whatsoever to do with the article, or was it a thinly disguised ploy to lure people to your website?