Employment Law E-Bulletin Issue 27

  • Employers cannot ‘gross up’ employees’ bad behaviour – The Governing Body of Beardwood Humanities College v Ham [2014] UKEAT 0379/13/0404
  • TUPE: Employees’ information pre-transfer must come from current employer – Allen & Ors v Morrisons Facilities Services Ltd [2014] UKEAT 0298/13/1604
  • Draft code of practice on preventing illegal working

Employers cannot ‘gross up’ an employee’s bad behaviour  –The Governing Body of Beardwood Humanities College v Ham [2014] UKEAT 0379/13/0404

The EAT in this case had to deal with the question of whether a dismissal without notice could be fair when it was for conduct that did not amount to gross misconduct (where the employee didn’t already have warnings on their record).

The test for unfair dismissal in the Employment Rights Act 1996 does not feature the expression ‘gross misconduct’. Instead, the fairness of a dismissal depends upon whether the employer acted reasonably or unreasonably in treating the reason for dismissing the employee as sufficient in the circumstances.

In this case, the claimant was accused of committing four offences. The defendant conducted an investigation, and a disciplinary hearing was held in her absence. The claimant was dismissed with immediate effect in May 2011, and her appeal against her dismissal was unsuccessful.

The tribunal found that the four allegations did not tally with the examples of gross misconduct contained in the school’s disciplinary policy and taken individually did not constitute gross misconduct. It was wrong for an employer to ‘gross up’ separate allegations of misconduct in order to make them constitute gross misconduct when put together.

The decision to dismiss was therefore unfair.

The EAT held that the question was not whether the individual acts of misconduct identified by the appeal panel, either individually or cumulatively, amounted to gross misconduct. It was whether Ham’s conduct overall was a sufficient reason for dismissing her. The case was remitted for re-hearing on the reasonableness of the dismissal.

Points to note

  • This EAT decision confirms that when tribunals are determining whether dismissal was fair, the question is whether conduct, in its totality, amounted to a sufficient reason to dismiss.
  • It is possible to dismiss fairly for conduct which falls short of gross misconduct although, of course, employers must exercise caution when following this route.
  • This case is also a reminder to employers of the importance of setting out clear examples of conduct that will likely warrant dismissal in their disciplinary procedures and making sure employees are aware of these.

TUPE: Employees’ information pre-transfer must come from current employer – Allen & Ors v Morrisons Facilities Services Ltd [2014] UKEAT 0298/13/1604

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) employers are obliged to inform (and if appropriate consult) with the representatives of their own affected employees. The duty to inform and consult therefore falls on the transferor employer leading up to the transfer of a business undertaking. There is also a corresponding duty on the transferee employer to provide information to the transferor about any measures it will take after the transfer, enabling the transferor to fulfil its duty to inform and consult. Employees of the transferor are therefore dependent on information given to them by the transferor about the transferee’s plans post transfer and the transferor is dependent on the information given by the transferee.

There was a transfer of hundreds of employees under TUPE when maintenance contracts for a city council were expiring and new contracts were being awarded to a number of private contractors. Claims were subsequently brought by the representatives of the transferred employees against Morrisons Facilities Services, for a breach of its obligation to inform and consult.

The employment tribunal had to decide whether a claim could be brought directly against the transferee for its failure to provide information to the transferor. A majority of the panel concluded that under TUPE it could not deal with a freestanding claim against a transferee when no claim was being pursued against the transferor, and the claims were dismissed. This is because the duty to inform and consult lay with the transferor not the transferee.

The EAT decided that the claim must be against the transferor. The transferor may then allege that the transferee failed to give them the requisite information and make the transferee a party to the tribunal proceedings. Where a claim is well-founded, the transferee may also be liable for any compensation ordered by a tribunal. The EAT confirmed that there can be no independent claim against the transferee in these circumstances.

In the absence of a claim against the transferor, the claimants’ appeal was dismissed.

Points to note

  • Compensation from the transferee for its failure to provide the transferor with adequate information about measures can only arise if the transferor makes the transferee a party to any legal proceedings.
  • The obligation on the transferee to provide information about measures to the transferor solely arises out of the relationship between the transferee and the transferor and employees have no right to bring claims against the transferee if the information given was incorrect.

Draft code of practice on preventing illegal working 

The Home Office has published a draft code of practice on preventing illegal working, including guidance on the factors that will be considered by the Home Office when determining civil penalty amounts.

The new code of practice on preventing illegal working will apply where a person was employed on or after 28 February 2008 and the breach occurred on or after 16 May 2014. If the breach occurred before this, then the old code still applies.

Employing an illegal worker is a civil offence attracting a penalty of up to £10,000. This increased to £20,000 in May this year.

The Home Office will consider a variety of factors when deciding what level of penalty to impose, differentiating between first time offences and those where an employer has committed an offence within the preceding three years.

In terms of mitigating factors, the Home Office will currently consider whether:

  • it is a first time offence;
  • the employer reported suspected illegality;
  • the employer co-operated with the Home Office investigation; and
  • there are effective document checking practices in place.

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