Case round-up

Case round-up by Eversheds 020 7919 4500

The difference between gross and minor misconduct
Sharp v Four Seasons Healthcare Limited, EAT, [15 April 2003]

Sharp was a retirement home charge nurse responsible for the care of elderly
patients. Despite having noted the deterioration of a resident, he failed to
seek medical help, and when a GP subsequently refused a call-out, Sharp did not
call an ambulance. Some hours later an ambulance was called by the replacement
shift nurse, but the patient died soon afterwards.

Sharp was dismissed summarily for gross misconduct. He challenged his
dismissal on the basis that the applicable disciplinary rules more
appropriately categorised his conduct as ‘minor misconduct’ – defined as
‘careless work and poor effort at work’ or ‘performance of duties below an
acceptable standard’. Gross misconduct referred to acts of a criminal nature
rather than acts of negligence.

The tribunal concluded that Sharp must have appreciated a neglect of care
could be serious enough to amount to an act of gross misconduct, even though this
was not spelled out in the rules. Sharp appealed.

The appeal was dismissed. The tribunal was right to conclude that the
company could not choose to categorise any incidents of misconduct as gross
misconduct at will. The appropriate approach is to look at the understanding of
each party to the contract in terms of how alleged misconduct would be
categorised. Both parties would reasonably have expected Sharp’s conduct
amounted to a very serious, deliberate wrong decision by a senior employee, and
potentially constituted gross misconduct.

Obligations surrounding redundancy consultation
Securicor Omega Express Limited v GMB, EAT, [7 April 2003]

Securicor took the commercial decision to close two sites and make
redundancies at another. The branches earmarked for closure constituted a
single ‘establishment’ within the Trade Union and Labour Relations
Consolidation Act 1992 (TULRCA).

Securicor met with trade union representatives ‘to discuss redundancies’,
and subsequently circulated minutes and formally issued redundancy notices. The
tribunal found that Securicor had failed to engage in consultation as required
by TULRCA section 188. The meeting with the trade union was simply to provide
confirmation of decisions already made, and the meeting minutes did not form
part of the consultation process and therefore could not be legitimately taken
into account. Securicor appealed.

The appeal was allowed; consultation must be fair and meaningful, but it
doesn’t need to extend to the economic background or context in which the
proposals for redundancies arise. The fundamental question is whether fair
consultation took place regardless of the order of events in all the
circumstances. The tribunal had been wrong to find that consultation could not
begin until Securicor had provided all necessary information to the union.

TULRCA only requires employers to disclose matters ‘for the purposes of’ the
consultation which may arise during the consultation process itself. Although
the company’s approach was far from flawless, it had substantially complied
with the requirements of section 188.

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