Confusion over alcohol policy meant unfair dismissal

In Liberty Living Plc v Allan Reid, the Employment Appeal Tribunal (EAT) (Appeal No. UKEATS/0039/10/BI) considered a matter where the employer company had a disciplinary policy which stated that an employee could be dismissed summarily for an act of gross misconduct and this included "being under the influence of alcohol... during working hours." The company also had an alcohol and drugs policy which said that "consumption of alcohol or being under the influence of alcohol while performing company business or in the workplace is prohibited." It went on to say that "violation of this policy can result in... discharge even for a first offence." The employee had one alcoholic drink in a bar away from the workplace during the working day.

The letter inviting him to the disciplinary hearing contained an allegation of "being under the influence of alcohol during working hours." The disciplinary policy was enclosed with the letter, but the alcohol and drugs policy was not enclosed. The Employment Tribunal (ET) found as a fact that the employee was unaware of the latter policy until it was sent to him before his appeal but after his dismissal.

The employee was dismissed summarily. He was told that the reason for his dismissal was that the consumption of any alcohol at all during the working day was gross misconduct. The dismissal letter told him under the heading that indicated he was being dismissed for being under the influence of alcohol that he was being dismissed both for consuming an alcoholic drink during the working day and for being under the influence of alcohol during working hours. At his appeal, the dismissal was upheld because he had consumed alcohol during working hours.

The ET decided that this was an unfair dismissal because the employee was not aware of the alcohol and drugs policy and the policy was confusing.

The EAT agreed with the ET decision. It was incorrect for the employer to say that the employee was alleged to have been under the influence of alcohol and that this covered one alcoholic drink. The only conclusion to be drawn was that the employer had not applied its own policies nor did the employer itself know what those policies were.

What can employers learn from this case?

The employer must have clear policies, know what those policies are and make sure that employees know the policies so that they understand what standards of conduct are required of them. Any dismissals based on unclear standards of conduct or where the employee is not aware of the policies are likely to be found to be unfair.

New use of claims under the PHA?

Following the Court of Appeal decision under the Protection from Harassment Act 1997 ("PHA") in Iqbal v Dean Manson Solicitors, we may now see a wider use of the PHA to protect reputations.

The Claimant used to be employed by the defendant firm of solicitors. A few years later he represented an individual who was being sued by the Defendant in the county court. In the course of the correspondence relating to that matter, the Defendant sent three letters (two copied to the court) which contained various allegations and were serious attacks on the Claimant's character.

The Claimant issued a civil claim under the PHA alleging that the letters constituted a course of conduct which amounted to harassment.

The Court of Appeal decided that each letter was capable of being described as harassing. The judges felt that the letters arguably amounted to “a deliberate attack on the professional and personal integrity” of the Claimant, designed to put pressure on him to decline to act for his client against the Defendant firm. This meant that they were arguably evidence of a campaign of harassment against the Claimant and therefore capable of causing alarm or distress and being unreasonable and oppressive in nature.

In considering if there was a "course of conduct", the Court of Appeal decided that a claimant did not need to show that every act complained of was harassment. It is the cumulative effect of the individual acts "as a whole" that actually counts.

What are the implications of this decision?

Some commentators now suggest that, rather than sue under other torts such as defamation, it might be better to bring a claim under the PHA. The Iqbal case draws a clear connection between attacks on an individual’s reputation (especially the professional person) and the protection provided by the PHA.

Libel claims typically require allegations that a defendant has deliberately attacked the claimant’s reputation by publishing untruths. But a PHA claim could be brought for publications even if they were truthful, provided the result was the prohibited behaviour - in effect, it is possible to be both honest and oppressive and unreasonable.

The judgement can be seen in full here:

http://www.bailii.org/ew/cases/EWCA/Civ/2011/123.html

TUPE and administrations (pre-pack or otherwise)

A recent case affects what happens to employees and dismissals where a business or part of it is sold by an administrator. The case is OTG Ltd v Barke and others UKEAT/0320/09 and other cases.

The Employment Appeal Tribunal (EAT) has gone against its earlier decision in Oakland v Wellswood (Yorkshire) Ltd, and decided that administrations cannot be "bankruptcy … or … analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor" within the meaning of regulation 8(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

This means that where a sale of an undertaking by an administrator amounts to a "relevant transfer" for the purposes of TUPE, the employees who are assigned to that undertaking will transfer to the buyer and be protected against dismissal for a reason related to the transfer.

This applies whether or not the sale is by way of a "pre-pack" arrangement. Oakland had said that TUPE did not apply to pre-packs in this way.

But, the administration will be "relevant insolvency proceedings" for the purposes of regulation 8(6) of TUPE. That means certain liabilities in respect of the affected employees will be taken over by the Secretary of State rather than pass to the transferee. It also means that the new owner of the business will have more scope than usual to agree variations to the terms of employment of the transferring staff.

This latest case means that there are two conflicting EAT decisions on the point. The latest case, though, (OTG Ltd) was in fact a group of cases heard together and it is thought that Employment Tribunals will most likely follow that case.

Draft guidance on definition of disability

The Government has published its Draft Guidance on matters to be taken into account in determining questions relating to the definition of disability.

The Guidance deals with the main elements of the definition of disability, meaning of "impairment", exclusions form the definition, people with disabilities in the past. It "explains substantial adverse effect", effects of the environment, effects of treatment, progressive conditions, "long term effects", normal day to day activities, disabled children and disability as a particular protected characteristic.

It is a recommended read for advisers, because determining bodies, including Employment Tribunals, will be required to take note of it.

ACAS paper - the future of workplace relations

ACAS has published a new paper on its view of the change in workplace relations.

The paper refers to fragmentation, demographic change, complex contractual relationships, remote management, individualisation and a vacuum in representation for both employees and employers. It says this will create a more challenging environment for good employment relations in the years to come.

The paper calls for new structures and approaches to facilitate dialogue employers, employees and their respective representatives. It claims that information, advice and guidance via the internet is going to be increasingly more important because of the reach that this provides to smaller and dispersed workplaces. It calls for greater use of mediation and other forms of conflict management.

UK being encouraged to pull out of Strasbourg jurisdiction

The Policy Exchange argues in a report that the European Court of Justice is "inefficient, unaccountable and remote". It says the UK government should consider withdrawing from its jurisdiction if it cannot negotiate substantial reforms to the way the Court is run.

The Policy Exchange claims that the Court has "tended to stretch the original text of the European Convention on Human Rights to fit situations well outside the expectation of those who drafted and ratified it". Lord Hoffmann argues that "the very concept of human rights is being trivialized by silly interpretations of grand ideas" and says that "repatriating" UK human rights law to UK courts would be worthwhile.

Read the report.

Lessons from Orr v Milton Keynes Council

In the Orr case, the Court of Appeal decided that the knowledge of a manger could not be imputed to the disciplinary chair and so the dismissal was fair.

There is a danger that employers may draw incorrect conclusions form this case. There is still a need to carry out a reasonable investigation. This requires all relevant parties to be interviewed. What the Orr case means is that if an interviewed person withholds information which the interviewer should not suspect is being withheld, that information cannot be deemed to be known by the disciplinary chair or the employer.

A fair and reasonable investigation is still required.

Twitter and good deeds

As a kid, I was a boy scout. Yes, I know you might say how sweet that is. But seriously, I didn't realise at the time how important being a scout was in preparing me for later life.

Let me give you two examples. Firstly, we formed a scout band. We had cavalry trumpets in B flat pitch with no valves so the only notes you could play were the harmonics of C. We had snare drums, tenor drums, a bass drum and glockenspiels. We entered marching band contests and did ok.

I showed promise on the cavalry trumpet so my parents were persuaded to get me a valve trumpet and from there I progressed really well. I went to the Junior School at the RNCM at age 15 and was eventually offered a place on the graduate course at the college. That was one of only two places with 57 people auditioning. I had an offer of a place to study law at the same time at the University of Manchester. It was music I loved, but I looked ahead and realised that although I aimed to play professionally in an orchestra, I would end up waiting for dead men's shoes. So I took the place to study law and switched to brass bands as a cornet player, met my future wife there and the rest as they say is history.

All that from joining the scouts.

What else did scouting teach me? It taught me to be on the look out to do a good deed every day. Simple motto, but what a world we'd have if we all did that.

Brings me to today and Twitter. I was working on the pc this evening when I heard the letter box close. I went to see what had been posted through and there was a leaflet from people I had no knowledge of, Ben and Caroline Lomax, asking for old clothes, bedding, curtains, belts and handbags to raise money for Christies cancer charity. I read the leaflet and thought that if I posted a request on Twitter and appealed to local people, I might just get some takers. I sent out a general tweet and asked people to retweet it. I also sent a few tweets addressed to local individuals I follow.

Result. Within 10 minutes @CoffeeApe replied and said his family had 4 bags full of good quality clothes they had been meaning to take to a charity and he would be happy to donate them to Ben's appeal.

I mailed Ben and got a wonderfully grateful email in reply from Ben and Caroline. They said that they had hoped that just one response would result from their leaflet drops this evening and how pleased they were that I was that one response. They were thrilled.

Here's the thing. It took very little effort on my part. Far less effort than Ben and Caroline had put in by producing the leaflets and posting them through may letterboxes.The simple step was connecting the leaflet to how I might use Twitter to promote the cause. I just then posted a few tweets. Job done.

That emotion of contribution when you are able to help people like this really is one of the power emotions that Anthony Robins talks about in his work, "Giant Steps".

I looked at Ben and Caroline's website. Take a look yourself here and sponsor one of the squares that will be on the flag they are to take to the top of Mount Kilimanjaro. Do you know someone who might sponsor them?

So think how you can use Twitter or any other form of social networking for your good deeds and make a difference today.