Case roundup

This week’s case roundup

Failure to properly assess unfair dismissal claim
O’Connell v Essex County Fire and Rescue Service unreported July 2001
EAT

O’Connell was a fireman with a second job in a roofing business but he had
failed to obtain the relevant permission before commencing this job. The
assistant chief officer learned that while on sick leave O’Connell was in fact
working in his second job.

Following an investigation O’Connell was summarily dismissed for breach of
trust and confidence pursuant to Fire Service’s own disciplinary regulations.
O’Connell lodged an internal appeal but the decision to dismiss was upheld,
although for the alternative offence of falsehood. O’Connell’s unfair dismissal
claim was rejected by the tribunal, which held that he had breached the implied
terms of trust and confidence by working in his second job while on sick leave.

O’Connell successfully appealed. The EAT found that the tribunal had failed
to clarify the reason on which it was judging the "reasonableness" of
the dismissal. Moreover, the tribunal did not apply the usual test in
misconduct cases (the Burchell test) in that no finding was made as to whether
the assistant chief officer had reasonable grounds for his belief in
O’Connell’s misconduct, whether a reasonable investigation had been carried out
or whether the dismissal fell within the range of reasonable responses.

Bonus payment was discriminatory
Bower v Schroder Securities, EOR Discrimination Digest 48, Employment
Tribunal

Bower, a senior equities analyst, resigned following a series of incidents.
She claimed sex discrimination in respect of her constructive dismissal claim
and in relation to the payment of discretionary bonuses.

Bower received a bonus of £50,000. Two of her male colleagues, however,
received bonuses of £440,000 and £650,000. Schroder could not explain how the
bonuses were calculated and the tribunal concluded that the men’s bonuses
reflected their manager’s genuine perception of their performance and market
value, whereas the bonus to Bower did not.

The tribunal held that the under-valuing of Bower would not have occurred if
she had not been female and, on balance, the manager was consciously or
subconsciously influenced by Bower’s sex when recommending such a low bonus.
The tribunal also found that sex discrimination was a factor contributing to
Bower’s resignation and constructive dismissal.

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