Gauging the right response in case of gross misconduct

Alternatives to dismissal should be explored in disciplinary cases when the
staff member concerned has an unblemished record at work. Law firm Eversheds
reports on this and a range of other employment law cases that have recently
come to judgement

Unfair Dismissal

Wilson v Ethicon, IDS Brief 655, EAT
What is the correct test of reasonableness?

Wilson was suspended for gross misconduct after failing to carry out a
required testing procedure on the assembly line where she worked. Ethicon
obtained statements from two witnesses and Wilson was dismissed. Her internal
appeal was unsuccessful, as was her unfair dismissal claim. The tribunal
applied the Burchell test and concluded Ethicon’s investigation was reasonable
and the dismissal fell within the band of reasonable responses.

Wilson appealed. The EAT held that the tribunal had merely satisfied itself
that Ethicon’s investigation was adequate but had failed to consider the
reasonableness overall of the decision to dismiss as required by the case of
Haddon. Taking into account Wilson’s long-standing, unblemished work record,
Ethicon and the tribunal should have considered whether there were alternatives
to dismissal. The EAT remitted the case to a differently constituted tribunal
for a re-hearing.


Chief Constable of West Yorkshire v Khan, unreported, February 2000,
Court of Appeal
Victimisation and references

Khan, a police sergeant, brought a race discrimination claim after failing
to secure promotion. But before this was heard he applied for promotion with
another police force. In accordance with normal procedures, that force requested
a reference and details of Khan’s appraisals. The chief constable refused to
comply with the request in case this prejudiced the tribunal claim. Khan was
not appointed to the new post.

Khan amended his tribunal claim to include victimisation and this was upheld
even though his race discrimination claim was dismissed. The EAT upheld the
tribunal’s findings and the chief constable appealed unsuccessfully to the
Court of Appeal.

The test to be applied was the objective "but for" test and the
intention to give less favourable treatment, irrespective of a conscious motive
to discriminate. The court held that but for the tribunal proceedings a
reference would have been provided and Khan had been treated less favourably by
commencing those proceedings. The correct approach was to compare Khan’s
treatment with that of an employee requesting a reference rather than with
someone who had brought proceedings against their employer.

TSB v Harris, IRLR March 2000, EAT
Care needed when providing references

Employers must exercise reasonable care in preparing references and must
ensure they are accurate as well as fair in the overall impression they create.

After receiving a final written warning, Harris looked for alternative
employment. She was offered a job with Prudential notwithstanding her
disciplinary record.

TSB gave a reference. It contained no assessment of Harris’s ability or
character but stated 17 complaints had been made against her, most of which
were still being investigated.

Prudential’s offer was withdrawn. TSB had informed Harris of only two
complaints and she had never been given the chance to respond to the others.
She resigned and successfully claimed constructive dismissal.

The tribunal held that TSB was in fundamental breach of the implied term of
mutual trust and confidence in providing a reference which mentioned complaints
not drawn to Harris’s attention and which were misleading and potentially
destructive to her career.

While the reference was accurate it was not fair. The EAT upheld the
tribunal’s decision.


British Airways (European Operations) v Moore and Botterill IDS Brief 657
Providing alternative work

If there is a risk to the health of a pregnant employee an employer is
obliged to offer suitable alternative work on terms not substantially less
favourable or to suspend the employee on full pay. As cabin crew, Moore and
Botterill were entitled to flying allowances but these were not paid when the
cabin crew was grounded. They became pregnant and in accordance with their
contracts were transferred to ground work. This meant they received only basic
pay, not flying allowances.

The tribunal held that although BA had offered alternative ground work, the
terms were substantially less favourable because the flying allowances were not
paid and so BA had not complied with its statutory obligations.

BA argued the flying allowances were to cover expenses and did not
constitute pay, but the tribunal disagreed and the EAT upheld the tribunal’s
decision that female cabin crew had not been offered suitable alternative


Pellowe v Pendragon, IRLB 634, EAT
Can enhanced redundancy entitlements be implied?

Following a Tupe transfer, Pellowe’s employment transferred from Lex to
Pendragon which subsequently made her redundant. She received her statutory
redundancy entitlement but brought a breach of contract claim on the basis that
under her contract with Lex she was entitled to an enhanced payment.

She argued that for 20 years Lex had a policy of making enhanced payments
calculated in accordance with a multiplier set out in the management manual.

Moreover, the employee handbook contained a statement that compensation
would be paid to redundant employees.

The tribunal dismissed Pellowe’s claim because there was no express
contractual term giving rise to an enhanced payment and no term could be
implied by custom or practice.

Pellowe’s appeal to the EAT was unsuccessful. The manual was an instruction
manual for managers; it had not been formally circulated to employees and did
not impose a contractual obligation to make enhanced redundancy payments.


Murphy v Sheffield Hallam University, IRLB 635, EAT
Causation and disability discrimination

Murphy, who was deaf, applied for a position at the university and referred
to his disability on the application form. His first interview was adjourned
because the university failed to arrange for a sign interpreter to attend.

Following the resumed interview Murphy was not offered the job and he
brought a disability claim. Although the tribunal held that he had been
discriminated against at the first interview, due to the university’s failure
to arrange for a sign interpreter to attend, and awarded him £2,500, it held
that Murphy’s disability played no part in the decision to appoint another
individual, who was not disabled. The tribunal accepted the university’s
assessment that the other candidate was the best. Murphy appealed,
unsuccessfully, to the EAT which held he had not established the necessary
causative link between his disability and the decision not to offer him the
job. Accordingly, Murphy’s disability was not an effective and predominant
cause of his less favourable treatment.

TNT Express Worldwide (UK) v Brown (unreported), April 2000, Court of
Who is the appropriate comparator in a race case?

Brown brought a race bias claim against TNT and asked permission to take
time off work to meet his adviser. His request was refused and he was told in
writing he would be subject to disciplinary proceedings and dismissal if he
failed to attend work. Brown was summarily dismissed after ignoring the
instructions and meeting the adviser.

The tribunal upheld Brown’s additional claims of unfair dismissal and
victimisation because he had been treated less favourably than another employee
who had brought a claim (unrelated to race) against TNT.

The EAT dismissed TNT’s appeal, as did the Court of Appeal. It held that the
decision in Khan (opposite) established the correct approach for identifying
the appropriate comparator. It was necessary to look at what was requested
rather than the reason for the request to ascertain how it should be treated;
an employee at TNT giving advance notice was normally granted a leave of

The Court of Appeal agreed that the dismissal and refusal to allow the time
off was tainted by bias.

Driskel v Peninsula Business Services and others, IRLB 636, EAT
Inappropriate remarks can constitute discrimination

The day before Driskel’s interview with her male head of department (Mr
Huss) he recommended she wear revealing clothes if she wanted to persuade him
to give her the job. She ignored this suggestion, left the interview before it
was finished and complained of sexual harassment.

The tribunal held that Driskel had suffered no detriment, Huss’s remarks
were flippant and she had not complained about previous incidents. The
dismissal was fair for some other substantial reason; the impasse meant that
either Driskel or Huss had to leave.

On appeal the EAT held that the tribunal should consider the sex of both the
complainant and discriminator. Huss was heterosexual and his vulgar remarks to
men were not intimidatory but they were to Driskel, whose dignity was undermined
by the remarks.

The appeal was allowed against Peninsula and Huss only and the EAT accepted
that the dismissal was fair.


University of Oxford v Humphreys and Associated Examining Board, IRLB
635, CA
Objections to business transfers

Regulation 5(4) of Tupe enables staff to object to working for the proposed
transferee but there is no deemed dismissal. Regulation 5(5) enables staff to
resign and claim constructive dismissal if the transfer results in substantial
and detrimental changes to working conditions.

Humphreys objected to the university’s proposed transfer of his contract to
AEB because it would result in substantial changes to his detriment. The
transfer went ahead and Humphreys resigned, bringing a High Court claim for

The university applied, and failed, to have the claim struck out, relying on
regulation 5(4) and arguing that liability passed to AEB on the transfer.

The Court of Appeal held that the reason for Humphrey’s objection was the
substantial and detrimental change to his working conditions rather than a
particular objection to working for AEB.

His objection prevented the transfer of his contract to AEB and without the
transfer of the contract, liability did not transfer but remained with the


Security Facilities Division v Hayes and others (unreported), March 2000,
Court of Appeal
Construction of contractual documents

Hayes and his colleagues were employed as electricians by SFD and because
their work required them to spend nights away they were paid a flat rate night
subsistence allowance. SFD unilaterally reduced the allowance by about 15 per
cent and Hayes started proceedings to recover the difference between the old
and the new rates.

The High Court upheld the claim on the basis that SFD had no right to vary
the rates. On the true construction of the contractual documents, which
included a staff handbook and travelling code, there was an express contractual
entitlement to the fixed-rate allowance.

SFD’s appeal to the Court of Appeal was unsuccessful. The court held that a
term could not be implied enabling SFD unilaterally to vary the rate of the
allowance even if the variation covered the actual costs incurred and employees
were reimbursed their expenses in full.

If the parties had intended for SFD to be allowed unilaterally to vary the
flat rate there would have been an express provision for it.

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