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Bear traps for the unwary employer

22 October 2014

I sympathise with employers when they rail against being forced to treat employees with kid gloves.

Employment law used to be a matter of common sense – if you were a good employer who had the best interests of your staff at heart, and treated them in accordance with natural justice, you were likely to stay on the right side of the law. However in recent years Parliament and the tribunals have developed a series of ‘bear traps’ which can produce unforeseen liabilities for the unwary employer. Two recent tribunal decisions provide a good illustration of this.

In Crime Reduction Initiatives v Lawrence, Ms Lawrence was suffering from work-related stress and depression. After she had been absent for seven months, her employer invited her to a capability meeting which was erroneously couched in terms of a disciplinary process. The tribunal found that the tone and content of the letter had intimidated her and discouraged her from attending the meeting, following which she was dismissed. The Employment Appeals Tribunal held that this procedural flaw rendered her dismissal unfair.

In McMillan v Airedale NHS Trust, Ms McMillan was disciplined and given a final written warning following a finding of misconduct. She appealed unsuccessfully. The appeal panel took steps to reconvene with a view to possibly increasing the sanction but, before they could do so, Ms McMillan applied for an injunction to stop them. The court referred to the ACAS Code of Practice on Discipline and Grievance at Work which, though not legally binding, states that an appeal should not result in any increase in penalty. This is because it may deter individuals from appealing in the first place, and may deny them an appeal against the higher sanction. The court said that whilst this was not a blanket prohibition, if you wish to be able to increase the sanction on appeal, you must expressly say so in your written policy.

These cases show that in employment law, process is all important. Having a qualified professional review your written procedures, and guide you at each step of the way, will pay dividends.

We will be discussing these and other developments at our breakfast employment law updates in the Holiday Inn, Quedgeley, Gloucester on 18 and 27 November 2014. To book, email events@willans.co.uk.

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Matthew Clayton MA LLM (Cantab), CIPP/E
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Mathew Clayton
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