South Tyneside Council v Ward
Mrs Ward had worked for the employer since 1987. In 2003, Mrs Ward’s team moved offices and both her line manager and department manager changed. Mrs Ward alleged that, following these changes, her job content was eroded, the physicality and difficulty of her work increased, and she was subjected to unreasonable criticism. All of this was exacerbated because of disabilities from which she suffered.
In April 2007, Mrs Ward was temporarily moved to work in another team to allow the employer to deal with a number of grievances that she had raised. Mrs Ward requested a transfer back to her original team, but this was refused. The employer felt that her request was unreasonable, given the outstanding grievances against management and in light of advice from occupational health, which was to seek suitable alternative employment for her.
Following a prolonged period of negotiation (which included an attempt by Mrs Ward to cause disruption by turning up for work in her original team, despite her request to return having been refused), the employer gave Mrs Ward three months’ notice on 17 October 2007 to bring the situation to a head and find a solution.
The employer explained that Mrs Ward’s temporary posting would end on 26 October, but that it would continue to look for alternative work in the organisation and maintain her continuity of employment. After 26 October, Mrs Ward was put on garden leave, but was in regular contract with the employer. Within weeks, she had been offered alternative employment, which she unreasonably refused. She also failed to engage with the grievance process, and her grievances were eventually dismissed as having no reasonable prospect of success.
Her notice expired on 18 January 2008 and she brought a claim for unfair dismissal and disability discrimination.
The employment tribunal held that the dismissal was unfair because it was premature. At the time of the dismissal, no precise offer had been made and the grievance procedure was incomplete.
The Employment Appeal Tribunal (EAT) allowed the employer’s appeal against the employment tribunal’s decision that giving notice was premature and therefore constituted unfair dismissal.
The employment tribunal had “stopped the clock” when notice was given, without considering whether or not any events between 17 October and Mrs Ward’s dismissal in January were capable of “curing” the unfairness. It is settled case law that tribunals should have regard to all the circumstances of a dismissal (s.98 of the Employment Rights Act 1996). This includes unreasonable refusal of offers of suitable alternative employment and a lack of cooperation with regard to grievances. If this was not the case, tribunals would never consider issues such as the substance or procedure of internal appeals against a decision to dismiss, which is plainly wrong.
The case was remitted to the tribunal to determine whether or not, in the event that giving notice was prima facie unfair dismissal, Mrs Ward’s actions in unreasonably refusing alternative employment and failing to engage in the grievance process have “cured” the unfairness.
This case is helpful for employers that struggle to dismiss uncooperative employees. The EAT has reaffirmed that the fairness of a dismissal will always be considered in the round, and that an employee’s unreasonable conduct after notice has been given can render fair a dismissal that may otherwise have been unfair.
However, it also provides a warning to employers that seek to force an employee’s hand by serving notice prematurely. Although such actions are capable of being cured if the employee acts unreasonably, the control is taken away from the employer and there is a very real risk of an unfair dismissal claim succeeding.
Guy Lamb, employment partner, DLA Piper
Practical guidance from XpertHR on notice