Weston Recovery Services v Fisher

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Richard has worked on some complex cases. I can honestly say that his eagerness to succeed is matched with his willingness to listen and his calm yet consistent approach to confront issues head-on. And above all else, unlike solicitors we have dealt with before, he will go to vast lengths to understand each case before making any assertion. Without hesitation I recommend GD People. Peter Hetherington (Operations Director 1^st Care Ltd, Midlands) We needed help to guide us though our redundancy process and clearly the whole matter had to be handled sensitively. On recommendation, we chose GD People to help co-ordinate and communicate this to our workforce and they did a sterling job for us. We would have no hesitation in recommending their services based upon our own experience to-date. Darren Timson, Landcare Operations Director, Stockport.

Testimonials

Richard has worked on some complex cases. I can honestly say that his eagerness to succeed is matched with his willingness to listen and his calm yet consistent approach to confront issues head-on. And above all else, unlike solicitors we have dealt with before, he will go to vast lengths to understand each case before making any assertion. Without hesitation I recommend GD People.

Peter Hetherington (Operations Director 1^st Care Ltd, Midlands)

We needed help to guide us though our redundancy process and clearly the whole matter had to be handled sensitively. On recommendation, we chose GD People to help co-ordinate and communicate this to our workforce and they did a sterling job for us. We would have no hesitation in recommending their services based upon our own experience to-date.

Darren Timson, Landcare Operations Director, Stockport.

Weston Recovery Services v Fisher

The Respondent operated a vehicle recovery business in which the Claimant was employed from 2 August 2004 until his summary dismissal on 28 November 2008. The Respondent permitted the Claimant to take one of the firm's mini buses on a fishing holiday to France in October 2008. On returning the vehicle he failed to check that it was in a safe condition. The rear step was missing and the seats were insecure. The Respondent considered this state of affairs to amount to a safety hazard, arranged for a disciplinary hearing and the Claimant was summarily dismissed for gross misconduct at that hearing on 28 November 2008. An appeal by the Claimant against that sanction was dismissed on 11 December 2008. No issue was raised with the procedure.

The tribunal was "...unanimous in our findings detailed above and in our conclusion that although dismissal was within the range of reasonable responses to what must be regarded as serious misconduct in that the Claimant's failure to secure the seats could have placed the Respondent's customers' well being at risk, it was not such conduct as should be seen as gross misconduct justifying summary dismissal. We therefore find that such dismissal was unfair and make the following award to the Claimant, being satisfied that his employment would not have continued beyond the expiration of notice which could properly have been given."

The sole ground of appeal related to the apparent inconsistency of the Tribunal's reasons, namely the Tribunal's finding that although dismissal was within the range of reasonable responses to what must be regarded as serious misconduct on the part of the Claimant, that conduct did not amount to gross misconduct justifying summary dismissal.

The EAT looked at Section 98 of the Employment Rights Act 1996 and took the view that the section is concerned with the sufficiency of the conduct reason for dismissal. It is not concerned with the common law concept of gross misconduct, that is, conduct by the employee amounting to a repudiatory breach of the contract of employment entitling the employer to terminate the contract without notice or pay in lieu of notice. Applying section 98 the dismissal was fair. The employer passed the Burchell test, followed a fair procedure and imposed a sanction, dismissal which fell within the range of reasonable responses. To that extent the appeal succeeded.

However the Tribunal had also found that the Claimant's conduct, although serious, did not amount to gross misconduct, that is, a repudiatory breach of contract entitling the Respondent to summarily dismiss him at common law. This was covered by the Claimant's alternative claim for damages for wrongful dismissal; breach of contract. Here the question for the Tribunal was quite different from the statutory question posed by section 98 ERA. Having found as a fact that the conduct did not amount to gross misconduct justifying summary dismissal it would inevitably follow that the Claimant's complaint of wrongful dismissal ought to succeed. In the circumstances the Claimant was entitled to four weeks net pay.

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Case Law Update

Morgan v The Welsh Rugby Union

This is a useful case for reviewing some of the issues you need to consider when engaging on a redundancy procedure in its various forms.

In this particular case, the Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role. Both men were interviewed for the new role but despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.

The Claimant's argument was based on the case of Williams v Compair Maxam [1982] IRLR 83. Williams sets out principles of good industrial relations to be observed in redundancy cases where the employees are represented by an independent union recognised by the employer. The EAT when outlining these principles was clear that they should not be taken as immutable or principals of law. Nonetheless, the principals have long been used as a benchmark for managing redundancy situations. They read as follow:

Conteh v Parking Partners Ltd

The Claimant was a black African female born in Sierra Leone. She was employed by the Respondent employer from 16 February 2009 as a customer car park attendant working in a car park at St George's Residential Development. The employer was a company which carried on business providing car parking facilities.

The marketing staff for St George's worked at the premises and were issued with tickets as they entered the car park. To leave the tickets had to be validated and on occasion the validation machine was broken. The Claimant had standing orders not to allow anyone to leave if their ticket was not validated. On the 14th March 2009, the Claimant exercised this standing order and refused to allow a member of the marketing staff to leave. The following day another member of the marketing staff came into the Claimant's office and was alleged to have said that "The fucking bloody machines are not working and who is paying your fucking bloody wages?", pointed to the sign on the wall and answered the question by saying, "St George's, you fucking stupid black African bitch". She went on insulting the Claimant, eventually letting herself out and slamming the door.

Lisboa v Realpubs

Over four decades the Coleherne Public House in Earls Court, London developed a national and international reputation as London's first 'gay pub'. Realpubs bought the premises. Realpubs own and operate gastropubs and their business model is to buy failing pubs and reposition them as gastropubs, offering good food and drink to all sections of the community.

In September 2008 when Realpubs acquired the Coleherne it was then in decline. The premises underwent refurbishment and were re-launched as the Pembroke Arms, opening to the public on 5 December 2008.

The Claimant in this case was an openly gay man. His working life has been spent in the hospitality industry. Between 2003 and late 2008 he worked as General Manager of a gastropub in Ealing. In late November 2008 he was interviewed by Realpubs' Operational Manager for a post in the Pembroke Arms. Following that interview the Claimant was offered and accepted a position as Assistant Manager at the Pembroke Arms. His employment commenced on 1 December 2008; it ended with his resignation on 11 January 2009.

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