COVID-19 and Redundancy Tribunal case
Dempster v The Gill Corporation Europe Ltd 2022
2022 was the beginning of the tribunals relating to coronavirus and how employers handled these situations.
Dempster V The Gill Corporation Europe Ltd 2022 case related to unfair dismissal, coronavirus, and redundancy. Dempster had been employed for 4 and half years from April 2016 to October 2020 as a General Operative. Unfortunately, due to the pandemic, The Gill Corporation ended up in financial difficulties. The company had furloughed employees, but the scheme changed in October 2020 meaning The Gill Corporation had to take on more of the costs associated with furloughing employees.
As the furlough scheme was changing, the company took the decision to write to all their employees, explaining that their situation was ‘not good’. The letter stated that those wishing to take voluntary redundancy should make themselves known to the company. Mr. Dempster believed he only needed to respond if he was willing to take voluntary redundancy, so took the decision not to respond.
The company sent further communications to Mr. Dempster on the 28th October 2020, declaring that he ‘qualified for the first round of staffing adjustments.’ The communication meeting also stated Dempster could take advantage of a consultation with the Managing Director. Furthermore, the communication included details of Mr. Dempster’s last working day with The Gill Corporation as being 30th October 2020.
The communication left Mr. Dempster feeling that he was dismissed without prior notice, with the dismissal being on the grounds of redundancy.
The Tribunal stated that Mr. Dempster was correct and had the right to a full consultation, where the company needed to highlight the current situation. Making him aware that he was being made redundant.
The tribunal stated that the company failed to follow the 3 steps of the redundancy process, detailed in the Employment (NI) Order 2003. Another issue was when Mr. Dempster appealed the decision for redundancy, the appeal was also handled by the Managing Director.
Due to failing to follow the correct processes, Mr. Dempster was automatically unfairly dismissed. The tribunal awarded Mr. Dempster £4,114.84 in compensation.
Lessons for employers
COVID-19 was a very difficult time for many businesses; however, this case highlights that employment protection will always stand. Therefore, all businesses should, and must, follow the correct procedure for dismissals.
Discrimination tribunal case
Sex discrimination
McCaughley V Footprints Women’s Centre 2022
The claimant had applied for, and was offered, the role of Support Services Manager with the charitable organisation Footprints Women’s Centre in West Belfast. During a phone call between the CEO Ms. Loughran and the claimant, the claimant indicated that she would like to discuss the terms and conditions included in the role of the Support Services Manager.
The claimant questioned if there was any flexibility regarding leaving and picking up children from school. The respondent and claimant disputed over the initial conversation, where the claimant believed she was told the organisation would be flexible, however, the respondent explained they stated they would try ways to accommodate the claimant.
Evidence was also put forward that Ms. Loughran pointed how the organisations maternity leave provisions were ‘not great’ after the claimant discussed the terms and conditions and the salary. The claimant stated Ms Loughran had said any requests needed to be in writing but this was later rejected by the respondent. Ms. McCaughley still accepted the role when the formal offer was made on the 30th October 2019, subject to receipt of acceptable references.
Fast forward to 8th November 2019, when the claimant received an email indicating she did not meet all the necessary requirements and the organisation was now not in the position to recruit her. The claimant requested further information, however, the respondent did not provide further information.
This led to the claimant filing a claim on the grounds of sex and age discrimination.
The Tribunal subsequently found that the respondent had not provided the real reasons for the claimant’s offer being removed. Furthermore, the tribunal found that the claimant had provided proof of the discriminatory elements i.e., concerns re school pick-ups. The tribunal also rejected the respondent’s reasons for removing the claimant’s offer, which included how the claimant had made too many requests prior to commencing work.
The tribunal upheld the claim on grounds of discrimination, awarding the claimant £8,500 for hurt feelings.
Lessons for employers
This case underlines the importance of how employers need to provide evidence for behind their decisions. The tribunal was able to state discrimination due to the respondent not putting forward sufficient reasons and issues relating to flexibility for school drops offs together with the fact that Ms. Loughran stated that the maternity provisions were ‘not great’.
Religion and belief
McClung V Doosan Babcock Ltd 2022 (Scotland)
The claimant (Mr. McClung) brought forward an unfair dismissal and a discrimination claim following the Equality Act 2010. The claimants’ grounds for discrimination claim were religion and belief. The claimant believed his supporting Rangers Football club was an intrinsic part of his life after being a supporter for 42 years.
The claimant also stated that supporting Rangers Football Club went further by demonstrating his loyalty to Northern Ireland and the Monarchy. He also cited that his membership and support of Rangers football club was at the same level of importance as individuals who attended church.
The discrimination arose when a Celtic supporting manager failed to offer the claimant work. The claimant felt he was being discriminated against due to being a Rangers supporter.
The Tribunal found that the respondent had not been discriminatory against the claimant due to the supporting of the football club as this did not fit within the 5 characteristics of being a philosophical belief. Rather it found that supporting Rangers football club was a lifestyle choice of the claimant.
In order for constitute a philosophical belief, it needs to be;
- Be genuinely held
- Be a belief rather than a viewpoint based on information available
- Be a belief having a substantial impact on human behaviours and life
- Reach certain levels of seriousness, importance, and cogency
- Respected in a democratic society, one cannot have conflict against others’ fundamental rights and the belief is capable of coexisting with human dignity.
Should this case have been in Northern Ireland, discrimination may have occurred on the ground of the employee’s political belief.
Lessons for employer
Employers need to review what constitutes a philosophical belief including the 5 characteristics, in order to ensure discrimination does not occur in the workplace. Previously we have seen cases regarding veganism and climate change which have amounted to a philosophical belief, as it has an impact on the claimants daily lives. It is notable that, those in Northern Ireland must be aware of the complications which could arise in relation to employees supporting Celtic or Rangers football clubs.
Age Discrimination
Irving V TUI Airways 2022
Ms. Irving (the claimant) worked for TUI (the respondent) the travel company for 20 years and had been working as a cabin crew at the Glasgow Airport. Due to COVID-19, the respondent made job cuts which led to the claimant’s position becoming redundant.
It came to light that the respondent was using the length of service as the main selection criteria for redundancy which resulted in employees over the age of 45, keeping their jobs. The claimant described herself as an ‘inbetweener’ due to the fact that she couldn’t benefit from the companies’ policies which benefited older employees or younger employees.
During her redundancy consultant meeting, the claimant immediately indicated that she felt discriminated against due to her age and highlighted how she was unable to benefit from the company’s policies for both younger and older employees., raising issues of equality in the workplace.
The claimant at this stage had emphasised that she wouldn’t have been able to have the same length of service which was required due to her age. Emphasising further, those over the age of 45 would have been safe from redundancy. During this meeting, the respondent assured Ms. Irving that other factors were being considered, such as attendance records and sanctions.
Nevertheless, the tribunal concluded that the sole determining factor for redundancy selection was length of service. This was due to the claimant being able to provide evidence that employees based in Glasgow had not been marked down for any attendance triggers nor, live sanctions or warnings.
The tribunal found that the respondent had indirectly discriminated against the claimant on the grounds of age. Furthermore, it was deemed as an unfair dismissal and breach of contract. Ms. Irving was awarded £6594.
Lessons for employers
Employers can learn from this case, by ensuring that they have clear criteria when electing employees for redundancy. Length of service should be the last resort when it comes to redundancy selection and should not be used as the sole factor. Furthermore, employers must be able to provide evidence to accompany any decision taken regarding redundancy selection.
Data Protection Tribunal case
McCann Vs Department of Communities
Mr. McCann (claimant) brought forward an unfair dismissal and disability discrimination case against the Department of Communities (respondent).
The claimant worked as a Quality Assurance Checker involving Universal Credit, where the claimant was investigated for breaches of procedure and for accessing the personal information of their ex-partner and their new partner via the unauthorised use of the departments computer system, on multiple occasions.
The ex-partner first raised complaints in August 2019, after the claimant sent text messages including personal information to the ex-partner.
Due to the security system set up in the Department of Communities, the security team could view the claimant access and the number of times it had been accessed. The claimant had accessed the ex-partner’s information on 92 days and accessed the new partners’ information 44 times.
The respondent had a clear Family and Friends policy, in their employee handbook, which detailed how employees could not access personal information on friends or family, the policy also made reference to estranged partners. The respondent dismissed the claimant, as his actions amounted to gross misconduct.
The claimant subsequently brought an unfair dismissal and disability discrimination claim to the tribunal. The claimant defence was that he was not given the opportunity to properly explain his versions of events and that the respondent did not fully explain what amounted to ‘legitimate business reasons’ when accessing personal information on their system. The claimant’s disability claim was in relation to tinnitus and PTSD.
It was found that the claimant did not provide enough evidence at tribunal on how the disability impacted his daily activities. The tribunal subsequently dismissed his claims that the claimant was treated less favourably due to his disabilities.
The tribunal dismissed the case.
Lessons for employers
This case highlights the importance of having robust workplace policies, particularly concerning computer equipment and personal information. Therefore, employers should ensure all policies are up-to-date.
Unfair Dismissals Tribunal case
Unfair dismissal relating to process and procedures
Bozova V Kilmorey Arms Ltd 2022
Ms. Bozova (the claimant) was employed at the Kilmorey Arms Hotel (the respondent) as a bar person between July 2018 to 2nd September 2019. The claimant had been deemed hard-working, who at times could be volatile. Having one live written warning at the time of her dismissal. However, this was not a final written warning. The claimant had admitted her fault in the situation which resulted in a written warning.
On 1st September 2019 a customer known as ‘Customer X’ during the case, came into the bar threatening the claimant, saying he would get her sacked and knew where she lived. This was following an incident on the 29th August 2019 relating to Customer X’s drunken behaviour and the claimant was instructed by the director to ring the PSNI.
Following the incident, on the 1st of September, the bar manager instructed the claimant to either stay behind the bar or either do not serve customer x. It was stated that either the instruction was for the claimant not to get involved with Customer X or to stay behind the bar. However, the claimant was at Customer X table leading to the doorman getting involved and putting his hand on the claimant. It was cited the claimant was at Customer X’s table silently.
The doorman Mr. Grant put his hands on the claimant’s shoulders to try to turn her away from the Customer X’s table and to apparently diffuse the situation. The Tribunal found this to be ‘battery’ and found there to be no rational reason for the doorman to do this.
The claimant was invited to a meeting the next day 2nd September 2019. The claimant was not made aware of the reasons for calling her to the meeting, nor that there was the possibility of disciplinary action. During this meeting, the respondent made the claimant aware she was being dismissed. Further to this, the respondent sent a letter to the claimant stating she was being dismissed due to misconduct.
The tribunal determined this was automatically unfair dismissal, due to the respondent not following the correct procedure for dismissal. Which included not outlining why the claimant was being called to a meeting in the first place.
The tribunal concluded that this was unfair dismissal and, the tribunal awarded the claimant £7695.86. The The tribunal made a Polkey reduction of 50% due to the claimant already having a written warning, and a further 35% reduction due to the misconduct of placing herself near customer x. However the 35% deduction was counteracted with a 30% increase due to the company not following statutory procedures.
Lessons for employers
This case illustrates the requirement to follow statutory procedures when dealing with disciplinary action and employee performance.
Unfair dismissal due to conduct
Dinsmore v Terex GB Limited
Mr. Dinsmore was employed by Terex GB from June 1988 up until October 2020. Terex GB Ltd (the respondent) provides washing, mobile screening, and washing equipment for the mining and quarry industries.
An accident occurred on 25th June 2020, when an employee operating a forklift pushed a pump off the shelf in a warehouse, weighing 41kg and fell 13 feet. The employee reported the accident the next day, and the claimant reported it to the quality inspector who requested the pump to be scrapped.
The pump was valued at £1500 and queries rose, leading to the commencement of an investigation. Through this investigation, it was highlighted that there was a failure to follow the ‘near miss incident reporting and investigation’ process. The claimant was employed as the Dungannon site’s Store Supervisor, making it his responsibility to ensure the near-miss accident was reported to the Area Supervisor or Manager, or the HSE representative. The claimant had asserted it was up to the employee to report the near miss.
The respondent put the claimant on suspension with full pay for the duration of the investigation. The reason for the suspension was a ‘serious breach of trust and confidence’ and a ‘serious breach of safety’.
The investigation concluded that disciplinary action would follow due to the failure to report the near-miss accident. During the disciplinary meeting, the claimant admitted he would have done things differently and reported the near miss to HSE. The meeting concluded on the 14th October 2020 finding that the claimant’s failure to report this near miss amounted to gross misconduct, leading to the dismissal of the claimant.
The tribunal needed to establish if the dismissal came within the band of reasonable responses. The tribunal highlighted the respondent had provided a high level of training prior to and after the coronavirus shutdown. This training made the claimant aware of his responsibilities and actions that were needed. They noted the claimants response to deflect the blame onto another employee for reporting.
The claimant had longstanding service, and the tribunal concluded his misconduct did amount to a fair dismissal. This, they claimed was due to the misconduct falling into the band of reasonable responses. The case was dismissed.
Lessons for employers
Tribunals have used the ‘band of reasonable responses’ as a test for a long time. It has been seen to favour the employer over the employee. During these cases, the tribunal will look at what they find reasonable, but reflect from the employer’s perspective and if it falls within the band. This case supported with the employer due to the employee having a supervisory role and their safety-first policy.
