Holiday Pay (for a change)

You may recall that a short while back we reported on a decision in the Employment Tribunal in the case of Mr Lock v British Gas, which held that where an employee is paid via commission (in whole or part), their holiday pay should include an element in respect of that commission. British Gas, however, appealed the outcome and the Employment Appeal Tribunal (“EAT”) passed Judgment on the appeal last week.

The case centred around Mr Lock, who worked for British Gas.  His salary package was broken down as roughly 40% basic pay and 60% commission. Mr Lock was unable to earn commission during his holidays (as he was not working), and he complained to the Tribunal as he believed that this was unfair and operated to deter him from taking his holiday. The Tribunal agreed with him. Last week the EAT upheld the Tribunal’s decision that holiday pay should include commission if this is part of a workers’ normal pay.

UNISON general secretary Dave Prentis said “This is a victory for workers and victory towards fair pay in this country and beyond”.

The decision means that workers’ pay for annual leave periods must include commission, as well as basic pay, if this is what they are normally paid. The case comes quickly on the back of the EAT decision in Bear Scotland v Fulton which set out that overtime pay should in certain circumstances also be included in a workers’ pay whilst on annual leave.  Unhelpfully, neither case sets out how employers should calculate what the value of the commission/overtime should be, so whilst employers can now be (relatively) certain that commission and overtime should be considered as part of holiday pay, it is not clear how payment of that should be made.

These recent cases throw up a number of practical complications for employers on many different fronts, and certainly could cause headaches when calculating holiday pay. There are many different ways to deal with these implications and our team of expert employment lawyers can work with you to provide practical solutions and advice on the current position tailored to your specific business. For more information on your options in respect of holiday pay please do not hesitate to call any member of the Employmentor Team on 01603 281139. 

Coffee anyone? Starbucks employee wins discrimination case

In the wake of the negative publicity over their payment of tax in the UK, Starbucks finds itself facing more criticism following the Employment Tribunal’s recent decision that the company had discriminated against a dyslexic employee.

The case related to an employee, Meseret Kumulchew, who worked as a supervisor in the Starbucks Clapham branch. Her role included taking temperature readings from fridges, and water, at certain times within the branch. She was then required to add these details to a duty roster. Starbucks found that Ms Kumulchew had entered incorrect data and accused her of falsifying the records. The treatment and allegations Starbucks made against Ms Kumulchew is reported to have pushed her to the brink of suicide.

Ms Kumulchew took Starbucks to the Employment Tribunal alleging disability discrimination on the basis that her mistakes in recording the data were as a result of suffering from dyslexia, which meant that she had difficulty with reading and writing.

The Tribunal found in her favour, stating that Starbucks had failed to make reasonable adjustments for her disability, and that she had been subject to discrimination because of the impact of her dyslexia. The Tribunal also found that she had been victimised by Starbucks, as it had failed to understand the equality issues in relation to Ms Kumulchew’s dyslexia and the effects it had on her work.

This case brings into stark focus the need for employers to be aware of what falls within the meaning of “disability” under the Equality Act 2010 and the obligations to make reasonable adjustments for disabled employees.

Is an employee disabled?

Whether an employee is disabled under the Equality Act 2010 is a legal test and does not necessarily correspond with other tests or perceived perceptions. Some conditions are deemed to be disabilities. For other conditions, the law asks four questions to determine whether an employee would be classed as disabled:

1. Does the employee have a physical or mental impairment?
2. Does this effect their ability to carry out normal day-to-day activities?
3. Is the effect substantial?
4. Is the effect long term (12 months generally)?

If an employee does come under the legal definition of “disability” under the Equality Act 2010, employers are under an obligation (amongst other things) to make reasonable adjustments.

Reasonable adjustments

Employers are under a duty to make reasonable adjustments to help disabled job applicants and employees. The duty effectively means that the employer must then make necessary alterations to remove the disadvantages suffered by the individual as a result of their disability.

A disadvantage may occur due to:

• A physical feature of an employer’s premises;
• A provision, criteria or practice adopted by an employer that places a disabled individual at a disadvantage – for instance, if an employer has set targets, but an employee has a condition which affects their concentration at work and makes it hard for them to meet those targets, that employee could be put to a disadvantage if they were to receive less bonus/be placed under performance management processes as a result.
• An employer’s failure to provide an auxiliary aid.

If one of the above situations arises, the employer should look at making reasonable adjustments. What is reasonable is always a key question, and a difficult one to answer, as this will depend upon the circumstances of the case. Reasonable adjustments include (but are not limited to):

• Adjusting physical premises;
• Altering hours of work;
• Additional training;
• Providing supervision or other support;
• Modifying internal procedures such as disciplinary procedures; or
• Acquiring or modifying equipment.

In the case of Ms Kumulchew and Starbucks, Ms Kumulchew was put to a disadvantage by being accused by her employer of falsifying documents, being given lesser duties at her branch and being told to retrain. Examples of reasonable adjustments Starbucks should have made to overcome the disadvantage would have included giving instructions visually/verbally in relation specific tasks, providing support with proof reading and taking alternative steps to manage the issue, as opposed to amending the duties.

For more information on disability or reasonable adjustments please do not hesitate to contact any member of the Employmentor Team on 01603 281139.

Note: the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

New Year, New Laws – the changes to expect in employment law in 2016

As New Year’s resolutions are made (and broken), and everyone looks forward to the year ahead, employment lawyers contemplate a busy year with a number of key employment law changes scheduled. This update provides an overview of upcoming shifts in the employment sphere, which may impact employers and employees alike in the coming months.

Zero Hours Contracts

As of today, 11 January 2016, the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 will come into force.  Whilst exclusivity clauses in zero hours contracts were prohibited in 2015, the Regulations provide a further layer of protection for zero hours workers by giving a remedy against employers who subject the worker to a detriment, or dismiss them, for breaching any such (unlawful) exclusivity clause.

Holiday pay

Our November 2015 update discussed the current (and vague) position of what is and what isn’t included in the calculation of holiday pay. It is anticipated that the seminal case of Lock v British Gas Trading Limited will provide a greater insight into how to approach commission payments when calculating holiday, as well as whether or not bonuses should be taken into account when calculating holiday pay (currently they are not). The EAT heard this case last month, however, judgment has not been delivered.  Stay tuned for further news!

Reporting gender pay gaps

By 26 March 2016 the government must introduce legislation to compel private sector employers with 250 or more employees to publish information about the differences in pay between men and women, including the disparity in their bonus payments. At this stage, little information is known as to what precisely employers must provide, or where the information is to be published, but we will of course keep you updated.

The National Living Wage

The National Living Wage spells good news for employees but potentially damaging news for the small business. Due to come into force on 1 April 2016, the National Living Wage adds a premium onto the existing National Minimum Wage for all workers aged 25, entitling them to an increased hourly rate of £7.20.  Businesses should (if they have not done so already) consider the impact this will have and any strategies they may need to implement to deal with any resulting increased cost pressures. Speak to one of the employmentor team if you would like assistance in this process.

Statutory parental pay and sick pay

There will be no annual increase to the weekly rates of statutory maternity pay, statutory paternity pay, and statutory sick pay in 2016. Rates will therefore remain at £139.58 per week for maternity (after the initial 6 weeks) and paternity pay, and £88.45 for sick pay.

Apprenticeships

Employers and organisations will be banned from describing an arrangement as an ‘apprenticeship’ when used to describe a scheme that is not a statutory apprenticeship.

Tribunal Fees

The Justice Committee is conducting an inquiry into the effects of changes to court and tribunal fees including, in particular, the introduction of employment tribunal fees. MPs have fervently backed this inquiry by calling for a review of tribunal fees to allow access to justice to employees. The outcome of such a review may, once again, have a huge impact on the level of tribunal claims faced by employers.

Grandparental Leave

Consultation will begin in the early half of 2016 in relation to the introduction of so-called “grandparental leave”, which would allow grandparents to take statutory leave to care for their grandchildren. However, this is not likely to come into force until 2018.

As ever, if you have any HR or employment law concerns, contact the employmentor team for advice on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Employment Law Changes: November 2015

As the evenings draw in and there is a definite chill in the air, employment lawyers and HR professionals alike begin to take stock of the recent changes to employment law, and look to what 2016 might have in store. We have set out below a summary of some of the key changes and important tribunal decisions over the past few months.

Cap on back payment of Holiday Pay Claims (July 2015)

A sigh of relief to be heard all round following the introduction in July 2015 of a cap on the back payment of holiday pay, following the flurry of recent decisions on how employers should calculate holiday pay (which is still not entirely clear-cut). Employers were becoming increasingly concerned about the potential liability they may incur, going back for many years, in respect of the incorrect calculation of holiday pay, however, for claims brought on or after 1 July 2015, the law has changed to limit holiday back pay claims to two years.

We will continue to keep you informed as to any further developments in respect of the calculation of holiday pay, but if you have any questions, please do contact one of our Employmentor Team.

Fit for Work (September 2015)

First launched in late 2014, the Government’s “Fit for Work” Scheme is now fully operational and has been rolled out across the country from September 2015. In brief, the Fit for Work Scheme entitles employers to make use of two new services:

1. Free health and work advice via its website and telephone helpline; and
2. Free referral for an occupational health assessment for employees who are off work for four weeks or more.

Whilst employees will ordinarily be referred by their GP, it is open to employers to make the referral once the employee has reached four weeks’ sickness absence. There is also a tax exemption for employers in respect of medical treatments offered to employees up to the value of £500 per employee per year.

This is certainly something for employers to consider in relation to any employees who are off work for this length of time, although we would recommend that you contact one of our team if you are in any doubt as to how to manage sickness absence.

Changes to the National Minimum Wage (October 2015)

Increases to the National Minimum Wage from 1 October 2015:

• The standard adult rate increased to £6.70;
• The rate for workers between 18 and 20 increased to £5.30;
• The rate for workers between 16 and 17 increased to £3.87; and
• The rate for apprentices under 19 increased to £3.30.

Safety Helmets for Sikhs (October 2015)

Also from 1 October 2015, the right for Sikhs to wear a turban instead of a safety helmet has been extended to apply to almost all workplaces. There are some limited exceptions, including certain roles in the military and the emergency services.

Associative Discrimination

Most employers are aware of the additional responsibilities and obligations they have in respect of employees who have a “protected characteristic” for the purposes of the discrimination law. Employers might also be aware that, in some cases, employees who are “associated” with someone who has a protected characteristic can also bring discrimination claims. 2015 has seen some interesting cases which have developed this area, effectively widening the protection for such employees. Here are some useful examples:

1. An employee is dismissed for taking time off to look after her disabled husband. Even though she is not disabled, this is likely to be discriminatory.
2. An employer requires all staff to work on Saturdays. One employee refuses, on the basis that his wife is Jewish, and even though he is not Jewish, he wants to respect her beliefs. His dismissal could be discriminatory (although could be objectively justified).
3. An employee overhears a colleague making offensive homophobic remarks to a gay colleague. Whilst he himself is not gay, he is offended by this. He is likely to be protected against harassment.
4. An employee discovers that a colleague brought a Tribunal claim for sexual harassment against her line manager. When the line manager finds out she knows about this, he dismisses her. This is likely to be victimisation.

It is also worth remembering that, at least for now, the duty to make reasonable adjustments only applies to employees who are disabled, and does not apply to employees who are associated with someone with a disability. This is a notoriously complex area of employment law and if you have any questions about whether or not these obligations apply please do contact one of our Employmentor team.

Travel Time

A big headline this autumn was in relation to workers who do not have a fixed place of work, namely that the time spent travelling between home and their first and last customer/client of the day will count towards “working time”. This is likely to have a significant impact on those businesses who employ such workers in relation to their working hours and potentially pay. Such businesses may also wish to consider putting in place practices such as monitoring travel time to avoid potential abuse of this new rule.

What’s Next?

As we have touched on above, the position with what is and what isn’t included in the calculation of holiday pay is still far from clear. Holiday pay has now been deemed to include commission, guaranteed overtime and (potentially) non-guaranteed overtime. One of the relevant decisions is due for appeal next month, and we are hopeful that this may bring some further guidance on how to calculate the inclusion of commission and other payments into holiday pay. 2016 may also bring some clarification in respect of whether or not bonuses should be included in the calculation of holiday pay, (currently they are not). So it’s a case of …. ‘Watch this Space’.

Finally, subscribers to Employmentor may have heard about the introduction of so-called “Grandparental Leave”. Just when you thought that the position with Family-Friendly Rights had been clarified, the Government have confirmed that there will be another change, this time entitling grandparents to take Shared Parental Leave (and Pay), although this is not likely to come into force until 2018.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Exclusivity clauses in zero-hours contracts unenforceable

As of today, 26 May 2015, law is in force which prevents employers who utilise zero-hours contracts from having exclusivity clauses in those contracts, or enforcing such clauses if they are already included in the contracts.

Employers will no longer be able to enforce any clause or provision in a zero-hours contract which:

• prohibits a worker from doing work or performing services under another contract (or any other arrangement); or
• prohibits a worker from doing work or performing services without the employer’s consent.

It is important to stress that in spite of all the hype and media attention that they attract, zero-hours contracts are still legal. They can be a useful tool for employers, in particular those who require a flexible or seasonal workforce. What is clear, however, is that what employers can do under a zero-hours contract is changing; further laws and regulations on the use of zero-hours contracts are expected later this year. The Government had discussed introducing legislation to create a new protection from detriment for zero-hours contract workers who take jobs under other contracts, however as yet no such legislation has been brought into force.

In addition to the new changes for zero-hours contracts, the maximum financial penalty that can be imposed on employers who fail to pay their employees the national minimum wage has increased. The penalty imposed can now be calculated on a per worker basis (rather than on a per employer notice basis) up to a maximum of £20,000. E mploymentor subscribers can always find more information about national minimum wage and the current rates by logging in to our website.

If you are concerned about zero-hours contracts or any other aspect of this article you should first speak with a member of our Employmentor Team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice.  Specific legal advice should be taken in any particular circumstance.

(Another) Holiday Pay Update

Just when we thought we were almost settled on what is and is not included in the calculation of holiday pay, there has been another potential shake up in the holiday pay world.

You may remember at the end of March this year we were able to report, following the case of Lock v British Gas, that commission was definitely included when calculating holiday pay.  That meant that, following the Bear Scotland case of October 2014, both (non-voluntary) overtime and commission should be considered when calculating holiday pay, although a decision on how exactly to make those calculations was awaited.

Last week, British Gas appealed against the decision of earlier this year.  The appeal is focused on the legal basis that the Tribunal used to come to its decision in concluding that commission should be considered in calculating holiday pay.

What does it mean?

The British Gas case is focused on commission, meaning that there is a real possibility that the law on commission payments and holiday pay will change once more.   The appeal also calls into question the decision making in the Bear Scotland overtime case, meaning that, potentially, the position on overtime may too alter.

The Employment Appeal Tribunal will hear the appeal towards the end of 2015.  Unfortunately a Judgment at the end of this year will not necessarily mean the end of the matter; either party may appeal the Employment Appeal Tribunal’s decision to the Court of Appeal and ultimately the Supreme Court, or may attempt to refer the matter again to the Courts in Europe.

What should you do?

Unfortunately this appeal makes an already uncertain area of law more uncertain.  The appeal means that, certainly the position on commission payments, is now not settled and could alter. Employers should remain cautious about making any big statements or changes based on a legal position which could well change in the next 12 months, and should seek advice from our team of solicitors prior to making such statements or changes.  We have a number of options available to employers to help them delay any decision making (if necessary) until after the outcome of the appeal hearing, or to implement interim measures if changes are already underway.

If you would like further advice and guidance on this recent decision, please contact a member of the Employmentor Team for advice.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Employment Law Changes: April 2015

Easter weekend has seen the implementation of a number of changes to employment law. A summary of the law now in force is as follows:

Shared Parental Leave

Parents of children born or placed for adoption with them on or after 5 April can now take advantage of the new right to Shared Parental Leave. Qualifying parents can now share up to a maximum of 52 weeks’ leave and 39 weeks’ statutory pay between them.  Our Shared Parental Leave Policy, forms, and guide on the employmentor website has full details.

Unpaid Parental Leave

Unpaid parental leave is now available (for eligible parents) up until their child reaches 18 years old.  Previously, unpaid parental leave was only available until the child reached 5 years old unless the child had a disability.

Increase in the Rights for Adopters

A number of changes have come in to bring rights for those on adoption leave broadly in line with those on maternity leave:

• Employees no longer need 26 weeks’ service before they are entitled to adoption leave;
• Statutory adoption pay now matches statutory maternity pay;
• The adoption rights have been widened to include couples adopting a child from outside the UK, and also to couples fostering a child under a Fostering for Adoption Placement; and

• The right to attend adoption appointments will cover joint adopters in addition to single adopters, and those employees will be protected from being subjected to a detriment or dismissal as a result of doing so.

Changes to rates

The maximum compensatory award that an Employment Tribunal can order has been increased to £78,335 (or 52 weeks’ pay, whichever is the lower).

The maximum weekly pay figure, used to calculate a redundancy payment and a basic award in the Tribunal, has been increased to £475.

The statutory maternity and paternity weekly pay rates have increased to £139.58.  This is also the weekly pay rate for shared parental pay.

Statutory Sick Pay has increased to £88.45 per week.

For further information on any of the changes above, please contact one of the Employmentor team.

Legal Update: Holiday Pay

The most anticipated Judgment of 2015 (so far) is out…yesterday a ruling was handed down in the case of Lock v British Gas which settled once and for all whether or not commission payments should be included in holiday pay.  The short answer is that they should.

The law is far from finalised on this, but this is what we now know (and do not know) about holiday pay:

What we know:

1. All of the recent holiday pay rulings apply to 4 weeks / 20 days holiday only. That means that the other 1.6 weeks / 8 days of employees’ statutory entitlement is not covered by these rules or the scope of this article.
2. When on holiday, employees must receive earnings which take account of overtime (excluding, for now, truly voluntary overtime), commission, and any other payments “intrinsically linked” to role performance.
3. The law has been amended to set out how holiday pay should be calculated whilst employees are on holiday, so that the pay they receive during their holiday is the same as what they would receive were they at work.
4. When employees are actually on holiday, they are unable to earn commission or work overtime during that time. That means that when they return from holiday, their earnings are effectively reduced in the following weeks. Employees are now entitled to be compensated for that loss of earnings.

What we do not know:

1. The Tribunal did not decide how to calculate compensation due to employees in respect of the commission and overtime that they are unable to earn whilst actually being on holiday. That will, unhelpfully, be determined at a later date.
2. It has been suggested that it might be possible to interpret the law so that commission schemes operate already to effectively compensate employees for being on holiday, such that no further money is due to them. This has not been decided.
3. For now, no ruling has been made as to whether or not bonuses are included in holiday pay. As UK law currently stands, they are not.

What can you do about this?

In most cases, the cost of complying with these obligations will not be as significant as it may first appear. However, for those employers who utilise commission and overtime heavily, and who really cannot afford to absorb the increased holiday pay costs, there are three broad options:

1. Review existing commission and overtime arrangements and consider revising them.
2. Consider varying other contractual terms like basic pay, hours of work, or benefits.
3. Consider a redundancy exercise to reduce costs.

Time is of the essence, but none of these steps can be taken lightly. The Employmentor team is on hand as usual and can help guide subscribers through the above processes at our reduced hourly rates.  If you would like further advice and guidance on how to implement any of the 3 options above, please telephone 01603 281139 or email email hidden; JavaScript is required.

Note: The content of this article is for general information only and does not constitute legal advice.

Employment Law Update – March 2015

Spring is often a season of change for employment law, and this year is certainly no different.  With the festivities of Christmas a distant memory, employers and HR professionals alike need to keep abreast of the various new rates that are set to take effect and other legal developments.

From family matters to holiday pay, the landscape of employment law rarely stops evolving.  To help you stay updated, we have pulled together an overview of some recent decisions, and changes that you will need to be aware of as we head towards the summer months.

Shared Parental Leave (‘SPL’)

The SPL scheme is now in force and applies to children who are born or placed for adoption on or after 5 April 2015.  It allows parents or those adopting to choose how they share the care of their child in the first year of birth or adoption.  Parents can choose how to split periods of leave between them, take discontinuous blocks of leave, and can sometimes take leave simultaneously.

Although the SPL scheme may sound complex, the basic principles are fairly straightforward.  Employees will be eligible for SPL if they are the child’s mother or main adopter, the child’s father, or the spouse, civil partner or partner of the child’s mother/main adopter (alongside certain other requirements).

Those eligible will be legally entitled to share 52 weeks of SPL.  The leave can be shared in a number of blocks, or can be taken as one continuous block.  Employers are entitled to refuse a request for discontinuous blocks of SPL, for example, if the needs of the business do not permit it.

Parents taking SPL may be entitled to 39 weeks of Shared Parental Leave Pay, subject to meeting certain conditions.  For specific rates, please see below.

To take SPL, employees must first ‘opt-in’ by providing the necessary information to establish that they are eligible for SPL.  Once the employer has confirmed that they are eligible, employees must give the employer notice for each period of SPL they intend to take, at least 8 weeks before they take it.

To make the management of SPL as easy as possible, Employmentor subscribers have access to a Shared Parental Leave Policy, a checklist of requirements, and a suite of all the essential forms.

New rates

From 5 April 2015, statutory maternity, adoption, paternity, additional maternity and shared parental leave pay increases to £139.58 per week (up from £138.18 per week).

From 6 April 2015, statutory sick pay will increase to £88.45 per week (up from £87.55 per week).

Employment Tribunal compensation limits

From 6 April 2015, the Employment Tribunal compensations limits will increase.  For the purposes of the basic award, a weeks’ pay will be capped at £475 and the compensatory award will be capped at the lower of 52 weeks’ salary or £78,335.

Statutory redundancy payments

From 6 April 2015, when calculating statutory redundancy, a weeks’ pay will be capped at £475.  The maximum statutory redundancy payment will therefore be £14,250.

Holiday pay

A particularly popular topic with employers at the moment is how holiday pay is calculated.  Recent decisions have suggested that commission (in Lock v British Gas Trading Limited) and overtime (in BEAR Scotland v Fulton) will be included for the purposes of calculating holiday pay.

Whilst much has been written on the subject, and it is clear that compulsory overtime will need to be included in holiday pay, the law is still uncertain on how such sums are calculated.  We can expect another decision on Lock shortly and the outcome of the appeal in BEAR Scotland at the end of March.   Until we have those decisions, the position as to calculating holiday pay remains unclear.  We will publish a full article on the implications of the holiday pay cases once they have been released.

Obesity as a disability

Many of you will have read about the recent decision in the Court of Justice of the European Union (‘CJEU’) which held that, in certain circumstances, obesity may fall within the definition of disability for the purposes of equality legislation.  Contrary to some reports, this does not mean that obesity of itself is a disability.  Rather, it means that the effects that being obese have on an individual may amount to a disability under employment law.

If the obesity of a worker “hinders the full and effective participation of that person in professional life on an equal basis with other workers” then obesity may fall within the definition of disability.  The CJEU suggested that examples of this may be where mobility is substantially decreased, or if obesity gives rise to other medical conditions, such as joint problems or diabetes.

Where obesity gives rise to a disability, employers will be required to make reasonable adjustments, which may include making access to the office easier or providing more appropriate seating arrangements.  Employers will also be exposed to the risk of Employment Tribunal claims in the event that they treat a worker less favourably on the basis of the disability caused by their obesity.

There are bound to be a range of opinions on this case.  However, it is important to remember that obesity of itself is not a disability, but the effects of it can be.  Whilst employers need not start taking drastic action just yet, they will need be aware of the potential issues that may arise from this recent decision.

Reasonableness of an investigation – unfair dismissal

The Court of Appeal has recently held that an employee was fairly dismissed following an investigation which highlighted that he was claiming mileage exceeding that which was recommended for each journey by the AA and RAC.

The employee was employed as a support worker who often travelled as part of his job.  For each journey, the employee was entitled to claim travel expenses.  The employer reviewed the mileage that the employee was claiming, and found that it was in excess of that recommended for each journey.  At the disciplinary hearing, the employee claimed there were various reasons for the excessive mileage, including road works, which made the journeys longer.  The employer adjourned the hearing and carried out further investigations.  The employer concluded that the employee’s defence did not properly explain why each mileage claim was in excess of the recommended journey, but did not investigate in detail each of the employee’s explanations.  As such, he was dismissed for gross misconduct.

The employee brought a claim for unfair dismissal on the basis that, whilst the initial investigation was reasonable, the employer had not given proper consideration to his subsequent responses to the allegation.

Dismissing the employee’s appeal, the Court of Appeal held that the reasonableness of an investigation was by reference to the investigation as a whole, for the purposes of unfair dismissal.  It was said by the Court that employers are not required to enquire further than necessary into the employee’s defences or explanations; a decision of some comfort to employers.

For more information on any of the topics in this article, please contact a member of the team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.