Case round-up

Dismissal at the request of a third party was unfair
Petrofac Offshore Management Limited v David Olley and Others, EAT, 21 October 2005, EAT website, December 2005
Facts The claimants were employed by Petrofac (the employer) to work in oil installations owned and operated by a third party, Kerr McGee. In accordance with the contract between the parties, Kerr McGee had the right to instruct Petrofac to remove personnel in certain circumstances. It requested the removal of the claimants from the installation. Petrofac asked for, but did not receive, further explanation as to why these personnel had to be removed. However, the employees were dismissed and brought claims for unfair dismissal.

The tribunal upheld the claims. The dismissals were procedurally unfair as the employer had failed to allow the employees’ chosen trade union repre-sentative to accompany them to meet-ings at which they were advised of their dismissal and appeal hearings. But the tribunal found that it was highly probable that the claimants would still have been dismissed and so they were awarded only a minimum amount of compensation. The claimants appealed.

The appeal was upheld. The tribunal made a number of findings about the overall fairness of the dis-missals. It found that Petrofac could have done more to try to persuade Kerr McGee to change its mind and to effect redeployment to avoid dismissal. Also, the terms of the contract only allowed Kerr McGee to require the removal of personnel in specific circumstances, which related to performance or conduct. Kerr McGee had failed to indicate which circumstances applied in this case. The case was sent back to the tribunal to consider the extent to which the unfairness of the dismissals went beyond matters of procedure, and to determine the level of compensation.

The dismissal of an employee at the request of a third party can and has been held to be a fair dismissal for “some other substantial reason”. In this case, however, the EAT was not satis-fied that the employees’ dismissal was for a fair reason, notwithstanding the contractual arrangement in place with the client in question that allowed them to request the removal of personnel.

Great expectations
Greig v Initial Security Limited, EAT, 19 October, EAT website, 23 November 2005

Greig applied for a security job, disclosing on his application that he had not worked for 24 years and suffered from depression. Initial Security (IS) rejected his application, citing his lack of relevant experience and that the nature of the business and situations to which he might be exposed in this role might not be “conducive to [his] personal mental health”.

A tribunal found that Greig had been discriminated against on disability grounds. IS had made assumptions about the nature of the job and Greig’s health without justification. In assessing compensation, the tribunal looked at various factors, including the loss of opportunity of employment and whether Greig would have got the job but for the discrimination. It concluded that it was unlikely that Greig would have got the job and awarded 500 compensation for injury to feelings, following an earlier EAT decision (Sharifi v Strathclyde Regional Council), which suggested that figure as a minimum appropriate award. Greig appealed, claiming that 500 was so low as to undermine public respect for awards.

The appeal was dismissed. The EAT reiterated that awards for injury to feelings are compensatory and are required to be just to both parties. Here, the tribunal had assessed the appro-priate sum and gave reasons. Greig could not allege ‘dashed hopes’ or any real distress. While conceding that awards of compensation for discrimi-nation should not be too low so as to damage respect for anti-discrimination legislation, the EAT said they should still be restrained and bear some relation to awards in personal injury cases.

With this year’s figures for discrimination awards showing a further increase, cases such as this reassuringly demonstrate common sense by the tribunal and a refusal to be swayed by emotive argument.

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