Case round-up

Case round-up by Eversheds 020 7919 4500

National pay award must be honoured
Graham & others v Glendale Managed Services, CA, 2003, IRLR 465

The workers in this case were originally employed by a local authority.
Their employment details stated that their rates of pay would normally be set
in accordance with the National Joint Council for Local Government Services
(NJC) ‘as adopted by the authority from time to time’, and that any changes to
the terms and conditions would be separately notified to the employee.

The workers were subsequently transferred under TUPE to Glendale, which
failed to honour two national pay increases, and the employees issued claims
for unlawful deductions from wages. Glendale argued the workers were not
entitled to the pay rises until they had been ‘adopted’ by the employer in
accordance with the particulars of employment.

The tribunal upheld the employees’ claims, accepting evidence which showed
that in practice, the local authority had always met the NJC pay rises. The
tribunal said that Glendale was therefore bound to the NJC package until it
notified the workers otherwise.

Glendale’s appeal was dismissed. Taking the past practice of the local
authority into account, it was not a pre-condition for the employer to formally
‘adopt’ the NJC increases before they were payable to the employees. Failing to
honour the pay rises was therefore in breach of the employer’s duty of trust
and confidence.

Criminal allegations
A v B, EAT, 2003, IRLR 405

Social worker ‘A’ was suspended in June 1997 during internal investigations
into allegations of improper conduct towards a minor. These investigations were
suspended while police investigated the matter, but continued after the police
decided not to prosecute. After a further delay, the disciplinary hearing was
held in September 1999, when A was dismissed, meaning he was unable to work as
a social worker again.

A claimed for unfair dismissal on the basis that the employer’s
investigation was inadequate: it had failed to disclose significant evidence
and had not taken statements from witnesses who might have assisted him. He
also pointed to the lengthy delay before the disciplinary hearing took place.

The tribunal held that the dismissal was fair, and said the standard of the
investigation need not go beyond what was reasonable just because of the
dismissal’s consequences for the individual.

The EAT allowed A’s appeal. An employer has a duty to carry out such
investigation as is reasonable in the circumstances. The gravity of the charges
and their potential effect on the worker are relevant, and the tribunal was
wrong to decide the chance that A may never work as a social worker again was
irrelevant to the investigation’s standard. The tribunal had also failed to
give sufficient weight to the unacceptable delay, and the other procedural
errors demonstrated the unfairness of the investigation.

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