UNFAIR DISMISSAL:

Contributory fault; (summary)

Claimant (Mr B Hendry) was dismissed after he “lost it” by punching and breaking a double glazed window at his place of work. Tribunal found he had contributed to his dismissal from Kitson’s Environmental Europe LTD to the extent of 20%. Finding on contribution set aside on appeal by the EAT as being without adequate reasons and remitted to the same tribunal to consider of new.

ORIGINATING TRIBUNAL HEARING

In its judgment of 25 October 2007, the tribunal made a monetary award which included compensation of £7,682.64; a sum arrived at after making a deduction of 20 per cent for contributory conduct.

The circumstances which gave rise to the claimant’s dismissal were as follows. On 20 December 2006 the claimant was at work. His relationship with his girlfriend was strained at that time and he kept receiving text messages from her, despite him requesting that she desist. He evidently did not switch off his mobile telephone and evidently kept reading the messages she was sending him whilst at work. He was under emotional strain. At about 11 am, immediately after the last of her calls to him, he, to use his own words “lost the plot” and lashed out. He punched and broke a double glazed window.

The claimant was cut and bleeding as a result and had to go to hospital to have his wounds attended to. He telephoned the Division Director, Mr Ferguson, before doing so and told him he had smashed a window and would return the following day. The next day he apologised to Mr Ferguson, told him he had been arguing with his girlfriend and also that his state of distress was added to because his grandfather was dying from cancer. Mr Ferguson invited him to apologise to the other members of staff who had been in the building (though not in the room he was in) at the time he broke the window and he did so. That evening, the claimant went to see his doctor, told him what had happened and the doctor referred him to a psychologist.

The claimant was subsequently suspended, disciplined and dismissed. The disciplinary hearing was conducted by the claimant’s immediate superior, Mr Livingston. The complaint against him was: “you lost your temper and control, which resulted in you punching and breaking a glass window in the Glasgow office”. Mr Livingston had never conducted a disciplinary hearing before. He concluded that the claimant had become and would remain a threat to the safety of his colleagues and those with whom the respondents contracted. He concluded that his remorse and apologies were not genuine. He determined that dismissal was the only appropriate sanction. The claimant considered but did not proceed with an appeal.

THE TRIBUNAL’S JUDGMENT

The tribunal found that the dismissal was substantively unfair because Mr Livingston had not approached matters with an open mind, had no basis for concluding that the claimant was and would remain a threat to health and safety, had no basis for concluding that his remorse and apologies were not genuine and had failed to take into account as mitigation that the incident was clearly an isolated one-off matter, that it was unpremeditated and out of character and that the claimant had gone to see his doctor, who had in turn referred him to a psychologist.

At paragraph 84, the tribunal dealt with contribution: “…we were also satisfied that the claimant’s conduct did in fact contribute towards his dismissal and that accordingly his basic and compensatory award should be reduced. We considered in all the circumstances that the claimant had contributed to his dismissal to the extent of 20% and that the basic and compensatory award should be reduced accordingly.”

No other reasons are given.

APPEAL TO EAT

We are persuaded that this appeal should be upheld. It is inherent in that exercise that a tribunal explains how and why it reaches its conclusions. This tribunal did not do so. Paragraph 84 contains no explanation or reasons for the 20 per cent and we are not persuaded that it is implicit that the submissions and findings in fact were considered. Even if it was, that would not deal with the problem of explaining the reasons as to why on those facts and in the light of the submissions and the relevant law, 20 per cent was considered to be the appropriate reduction.

A tribunal considering whether a reduction for contribution by the claimant is appropriate requires to identify the conduct in question, consider its nature and decide whether the claimant was culpable in respect of it, to any extent. That will usually involve reaching a view as the characterisation of the conduct. In this case the respondents submitted that it was a blameworthy act of uncontrolled violence which could be characterised as dangerous. The claimant’s written submission referred to it as being reckless behaviour. We are left in the dark as to the tribunal’s view regarding the appropriate characterisation of the conduct, as the judgment does not mention it. That said, the tribunal did make findings in fact that the claimant “immediately lashed out” (paragraph 12) and that “his anger had built up to such an extent that he ‘lost the plot’ and punched the window”, and in those circumstances we would have expected their starting point to be that the conduct was certainly blameworthy and could reasonably be characterised as dangerous.

The tribunal then required to consider whether there was a causal link between the conduct and the dismissal. There is no doubt that there was. The conduct was the only reason for the dismissal.

In these circumstances, the 20 per cent finding strikes us as surprisingly low. It may be that the tribunal has been influenced by the mitigatory factors relied on by the claimant, but if that is so it required to give clear reasons as to how, why and to what extent those subjective factors affected their considerations, always bearing in mind the starting point of admittedly reckless and violent voluntary conduct on the part of the claimant. It is not at all clear how or why such factors as could be relied on had or could have had the effect of bringing out only 20 per cent as the appropriate reduction.

DISPOSAL

There requires, in these circumstances, to be a remit to the same tribunal to consider of new the question of the extent to which the monetary award should be reduced in respect of the claimant’s contributory conduct. We will pronounce an order to that effect.

Employment Appeal Tribunal, 4 September, 2008

A fingerprint expert who lost her job in 2007 over the Shirley McKie case has started a legal bid to get reinstated.

An employment tribunal in Glasgow heard that Fiona McBride is claiming unfair dismissal after being asked to leave the Scottish Criminal Records Office.

Former detective, Ms McKie, received £750,000 in compensation after being wrongly accused of entering a murder scene and committing perjury.

The tribunal is scheduled to hear evidence over 10 days.

The case centred on a fingerprint which four Scottish police experts said belonged to Ms McKie, but which many independent analysts said did not.

Ms McBride and her colleagues maintained no mistake was made.

The four experts were suspended from duty in 2001 by the Association of Chief Police Officers in Scotland.

An independent investigation followed and they were reinstated a year later, but were not allowed to carry out their normal duties.

A report by MSPs said the officers involved had not acted maliciously.

Three of them accepted redundancy in March last year but Fiona McBride declined. She was eventually sacked.

Thursday’s hearing heard from witness David Mulhern, Chief Executive of the Scottish Police Services Authority (SPSA), a body formed last year which incorporated the Scottish Criminal Records Office (SCRO).

He said that the McKie affair had had a debilitating effect on staff at the Glasgow Fingerprint Bureau.

Mr Mulhern, who was instructed by then Justice Minister Cathy Jamieson to produce a report on the Scottish fingerprint service at the end of March 2006, said he found a 20% absence rate among employees.

“There was this debilitating impact of the McKie mark,” he told the tribunal.

Members of the Scottish Parliament’s Justice 1 Committee carried out a lengthy investigation into the fingerprint service in the wake of the McKie case.

Giving evidence to the inquiry in September 2006, Lord Advocate Colin Boyd said any future trial the fingerprint experts were involved in could be overshadowed by their links to the case.

Mr Mulhern said he “fully agreed” with the Lord Advocate’s comments.

Ms McBride, 43, was the only one of the officers to transfer to the SPSA.

The tribunal was told of several meetings between Mr Mulhern and union representatives towards the end of 2006, before the SCRO merged with other police bodies to form the SPSA in April last year.

The future of the four fingerprint officers and two other staff involved in the McKie case was discussed.

Mr Mulhern, who took up his position as SPSA head, on a permanent basis in December 2006, said: “I found it was incumbent on me to now deal with the matter.

“I was unwilling to take any risk with the organisation.”

BBC NEWS, 11 September, 2008

A lecturer has won £10,000 in libel damages after his University falsely accused him of making up expenses claims.

When Dr Tom McMaster had his £180 claim for travel expenses rejected he assumed there had been some mistake.  But when he queried it with his finance department he received a vitriolic email from Finance Director Ray Corner wrongly claiming he had been exaggerating his expenses, accusing him of fraud.

In November 2006, Dr McMaster instructed lawyers to write to Mr Corner asking for an apology but he was said to have repeated the allegations. The lecturer then filed a claim for damages against Mr Corner and the University in February and went to the High Court in an effort to clear his name and seek damages because of the “unrepentant and unapologetic stance” taken by Mr Corner in his reply.

In March of this year an application by Salford University to have the matter thrown out on the grounds that it was a “frivolous” action was refused by the judge. They then offered to settle the case for £10,000, which the lecturer accepted.

Dr McMaster said “I imagine this will have cost the University about £100,000, including legal fees. But I would have settled for a simple apology. I used to love my work.”

A spokesman said: “The university has reached a settlement with Dr McMaster and we cannot comment on any outstanding grievance issues concerning him.”

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Polish cleaner Izabela Smolarek claimed her lack of English should be classed as a disability as she tried to sue her employers for alleged discrimination. She claimed cleaning firm ISS Facility Services Ltd exploited her inability to understand her job contract by paying her less than the minimum wage for cleaning rooms at a Travelodge in Luton, Beds.

Miss Smolarek had agreed to be paid £1.24 for each hotel room she cleaned, but said it was impossible to clean the three rooms an hour necessary to earn the £5.52 national minimum wage.  In her claim statement, she said: “Not speaking and not understanding the language is a disability. It’s like being deaf and mute and illiterate.

Her representative, Thomas Klarecki, told the hearing: “The law says you do not have to discuss the reasons for a disability, just the effects of the disability.”

However, Judge Valentine Adamson dismissed the claim at the hearing in Bedford. He said: “In the absence of any identifiable impairment, the only point being that the claimant was born in Poland and not a country where English is the first language, I find the claimant’s language difficulties are not capable of being classed as an impairment within the meaning of the Disability Discrimination Act.

Miss Smolarek continues to claim she was unfairly dismissed by the London-based cleaning firm.

Another pre-hearing review has been scheduled for January 12.

A spokesman for ISS said the company denied the allegations but would not comment further.

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Almost 1.8 million children – one in seven in Britain – live in households in which no one works, with more than three million families in total unemployment, figures from the Office for National Statistics show.

The figures, which are based on the Labour Force Survey (LFS) of employment, show only a minimal reduction in recent years of households where all family members are out of full-time work.

Significantly, the figures showed that fewer working-age people from Asian families were out of work – only 7.6 per cent – and 10.7 per cent of those in the white ethnic group lived in a workless household. The highest level of unemployment was among the Chinese working group, at 28.3 per cent.

The LFS estimates that, for the three months before June 2008, the employment rate for lone parents was 56.3 per cent, down 0.5 percentage points from the previous year and up 3.4 percentage points from five years earlier.

During that period, there were 3.06 million workless households, representing 15.8 per cent of all working-age households, The figures are down 0.2 percentage points from the previous year and down 0.2 percentage points from five years earlier.

Researchers using the LFS of employment established that there were 4.29 million working-age people living in workless households. That figure represented 11.4 per cent of the working-age population, down 0.4 percentage points from the previous year, and down 0.3 percentage points from five years earlier.

The study, entitled ‘Work and Worklessness Among Households’, found there were 1.77 million children in workless households, representing 5.4 per cent of all children in working-age households. That is down 0.3 percentage points from the previous year and down 0.6 percentage points from five years earlier.

The Work and Pensions Minister, Anne McGuire, said: “The number of workless households is down 15,000 on the year and 185,000 since 1997, as more and more people are being supported off benefits and into work. We’ve cut unemployment to almost half what it was a decade ago and the numbers on out-of-work benefits have fallen by over a million.

“Since 1997, the number of children in workless households in the UK has fallen by over 480,000. To help children we must help their families, and for families work is the most important route out of poverty.”

Independent.co.uk, 28 August, 2008

The Government will explore ways to make dealing with flexible working requests easier for businesses, as part of a consultation published on Tuesday, 26th August.

The consultation follows on from the Government’s announcement that it would extend the right to request flexible working to parents with children who are 16 and under.

Employment Relations Minister, Pat McFadden, said the consultation would seek views from business and suggest ways to reduce paperwork involved with flexible working requests.

“The right to request flexible working has worked well because it helps employees to balance their home and work lives, but at the same time gives employers the right to say no where there are legitimate business concerns.

“Parenting requirements don’t end as children get older. We think it is right to extend this successful scheme and help parents of older children access the flexibility they need.”

The consultation will also consider ways to raise awareness of the right to request flexible working among employees and to boost knowledge of the range of free tools available to make dealing with requests quicker and simpler for businesses.

BusinessLink.gov.uk has online forms that employers can use to deal with flexible working requests. It also provides guidance which can help save time, money and stress and avoid businesses paying for professional external advice.

The consultation will also consider whether to scrap the requirement that employers write formally to staff to advise their request has been accepted.

The Government will soon launch an awareness raising campaign to target groups with low knowledge or who are unaware of their right to request flexible working, like fathers and carers, in addition to raising awareness for businesses about how to make dealing with requests simpler.

The consultation will involve all interested stakeholders, including employer and employee representatives, parents, unions, business and family organisations.

www.berr.gov.uk, 26 August, 2008

Newsreader Selina Scott is about to sue Channel Five seeking compensation under the Age Discrimination Law. Scott, 57 is claiming she was lined up as maternity cover for Natasha Kaplinsky on Five News but that Five went back on their agreement, discriminating against her as she was too old.

In June Five News announced that Kaplinsky would be replaced by Isla Traquair, 28, and Matt Barbet, 32. A Channel Five spokesman said: “We do not accept this claim and will be vigorously defending it.”

It is understood that the case has been listed at the London Employment Service in Holborn, with the Five Director of Programmes, Ben Gale, named as a defendant.

Scott, who joined ITV’s News at Ten in 1980 and helped launch the BBC’s Breakfast Time programme in 1983, hit out at ageism in television news earlier this year. “How many women are there on mainstream current affairs programmes who are over 50?” said Scott. “Anna Ford has retired, Moira Stuart has been bumped, yet you look around and see lots of men.”

Scott’s agent, Knight Ayton Management, was unavailable for comment.

When Kaplinsky’s predecessor Kirsty Young went on maternity leave in 2006, Five brought in another veteran newsreader. John Suchet, Kaplinsky, 35, joined Five News in February this year, presenting its 5pm and 7pm news bulletins.

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Acas, the Employment Relations service, has launched a new guide to help make businesses less vulnerable to equal pay claims through the use of job evaluation.

The guide, which considers the benefits and risks of undertaking job evaluation, explains how a job evaluation risk analysis should be established and implemented.

Job evaluation – which determines the relative importance of a number of different jobs whilst avoiding prejudice or discrimination – can be a complex process. This guide will help managers and employee representatives decide whether introducing a job evaluation structure is feasible and appropriate for their business.

The new Job Evaluation advice booklet is launched as the 2008 Acas’ annual report shows a 25% rise in employment tribunals and potential employment tribunal claims. This rise was partly attributed to equal pay claims.

Frank Blair, Director Acas Scotland, who has developed the guide, commented: “Employers sometimes find it hard to justify their grading and pay systems. Putting in place a job evaluation scheme can remedy this and can also help prevent equality and HR related problems from arising.”

“However, Acas is urging businesses to be fully prepared before embarking on introducing job evaluation. A good number of the difficulties encountered by organisations will be avoided by adequate preparation. The booklet gives advice on the level of preparation required, which if undertaken properly, will create strong business benefits.”

Benefits of job evaluation:

• Cornerstone of a fair and equitable pay system
• Facilitates the introduction of new or changed jobs
• Offers a defense against Employment Tribunal claims of Pay Discrimination
• Supports recruitment and retention
• Prevents stereotyping of jobs and roles

ACAS, 1 September, 2008