While indulging in my fondness for reading employment case law (not something my book group has welcomed), I have come across a couple of slightly odd decisions that I want to bring to your attention.

The first decision relates to redundancy and is a warning for employers facing an employee volunteering themselves for redundancy.

Stephenson College v Jackson [2011] WL6148273

Stephenson College placed a number of staff in a selection pool and scored them against selection criteria to identify who should be redundant; Mr Jackson was the person with the worse score and was therefore facing a compulsory redundancy.

Mr Jackson’s colleague, Mr Cooper, had the second worst score (in fact, there was only one point between them) and volunteered himself for redundancy in Mr Jackson’s place because he was unhappy at work. The College did not accept Mr Cooper’s voluntary redundancy, and instead completed its redundancy procedure and dismissed Mr Jackson as redundant.

Mr Cooper resigned and left his employment.

The Employment Tribunal and the Employment Appeal Tribunal concluded that the decision to refuse Mr Cooper’s voluntary redundancy rather than make Mr Jackson redundant was a decision that no reasonable employer would have taken and therefore Mr Jackson’s dismissal was unfair.

In reaching this conclusion, the Tribunals considered that the evidence indicated that there was very little between Mr Cooper and Mr Jackson in the scoring exercise.

What does this mean?

We often consider whether it is appropriate to invite applications for voluntary redundancies in order to avoid or reduce the need to make compulsory redundancies. However, this inevitably comes with the risk that the people who volunteer are your better workers (or perhaps those who would be more expensive to make redundant due to their length of service!) and so it is normal for an employer to reserve the right to refuse an application.

This case indicates that refusing an application for voluntary redundancy might be considered unreasonable by a Tribunal, but this shouldn’t put you off inviting applications for voluntary redundancy.

I would recommend that, if you are going to invite applications for voluntary redundancy, you do this before you carry out any scoring of employees in a selection pool. If you receive any applications after the scoring stage and do not wish to accept them, you will need to have a good justification for this which should be backed up by the scoring – e.g. to show that the volunteer is a better qualified or more reliable member of staff.

The second decision relates to the right an employee has to be accompanied to a disciplinary hearing or grievance hearing. The right is to be accompanied by either a work colleague or a trade union representative.

Roberts v GB Oils Ltd UKEAT/0177/13/DM

Mr Roberts was a tanker driver; he was invited to a disciplinary hearing due to an allegation that he had been contaminating diesel oil. He requested the right to bring a colleague “L” to the disciplinary hearing and his request was refused on the basis that L had been banned from all of GB Oils’ sites. Mr Roberts then made alternative arrangements and was accompanied by someone else. Mr Roberts was dismissed.

Although the decision to dismiss Mr Roberts was fair, the Employment Tribunal and the Employment Appeal Tribunal found that there had been a breach of his right to be accompanied to the disciplinary hearing. It is the employee’s right to choose who accompanies them to a disciplinary hearing provided that they are either a colleague or a trade union representative.

What does this mean?

You will need to have a strong justification for denying an employee their choice of colleague and requiring them to make an alternative selection. It is surprising that in this case the fact that “L” was banned from all GB Oils’ sites was not considered sufficient justification, but for the time being this is a binding decision and you are advised to only refuse a choice of colleague if that colleague would be disruptive to the disciplinary procedure.

There is some comfort in the Employment Appeal Tribunal’s consideration of what remedy might be appropriate for an employer’s refusal to a particular choice of colleague. Where the employee is able to make an alternative selection and is therefore not subject to any detriment as a result of the refusal, the EAT has suggested that the appropriate remedy would be:

“an award of nominal compensation only, either in the traditional sum now replacing 40 shililngs - £2 – or in some other small sum of that order.”

And finally…

A witch who was sacked for swapping her shifts at a Londis supermarket in Hemel Hempstead to attend a Wiccan ceremony to celebrate Halloween has successfully claimed that she was discriminated against because of her religion or belief and has been awarded £15,000! She is thought to be the first pagan to win such a case.
Posted Friday 31st of January 2014