âSorry guys. Not sure I'll be able to do the show tonight. ... So I'm predicting his next calamity will involve lost m
EXCUSES, EXCUSES Mobbed by seagulls? Fallen down a manhole?
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FAIR DISMISSAL When long term minor issues mount up
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Wg Employment Issue 607/June 2018 We’re in that time of year when there’s a sudden spike in sickies. Which, glancing back at it, conjures up a rather nasty picture... but, projectile vomiting imagery aside, the World Cup and Wimbledon are sure to tempt even the most committed employees to phone in sick for a day of thrills by the flat screen. The excuses are largely uninventive – migraine, stomach bug, toothache etc. But if you’re Talk Radio presenter and 2017 I’m A Celebrity finalist Iain Lee, you may be more creative. This week Lee reported to fans on Twitter that he might not make it in to work on his 10pm show because he had been attacked by an owl. Yes. Actually. “Sorry guys. Not sure I’ll be able to do the show tonight. This is the weirdest thing, but...I’ve just been attacked viciously. By an owl. It sounds like a joke, but it’s not. Just sitting in A&E with blood everywhere.” Which is bizarre enough – but the boy has form. Back in April, Lee fell down a well. "Sorry team. This is messed up. Tonight's show is cancelled as I've fallen down a well. This is not a joke," he tweeted. And apparently, he actually had. His sickies seem to be inspired by cat-related nursery rhymes. As in ‘Ding dong dell, pussy’s in the well…’ and ‘The owl and the pussycat…’. So I’m predicting his next calamity will involve lost mittens or going to London to look at the Queen. Me – I never take a sickie. Well, there was the Dodgy Salmon Incident of 1996 which actually turned out to be a touch of pregnancy – resulting in a really long sickie. How about you? We’d love to hear about your outrageous (and true!) excuses… and any your staff have given. Please email - or share your most outrageous excuses on our Facebook page – HERE.
When the Trust loses trust And speaking of bad behaviour brings me to the case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust. Misconduct is a potentially fair reason for dismissal; in considering whether a dismissal for misconduct was fair, the tribunal will ask whether the employer undertook a fair investigation when they reached the decision to dismiss, and whether the misconduct was a sufficient reason for dismissal. A dismissal for misconduct will only be fair if the employer had grounds to believe that the employee was guilty of misconduct, and carried out a reasonable investigation. In this case, Mr Mbubaegbu was a consultant orthopaedic surgeon employed by the Homerton University Hospital NHS Foundation Trust (the Trust). He had worked there for 15 years and had an unblemished disciplinary record. From April 2013, new department rules were introduced and the various consultants were informed that their compliance with the rules would be monitored. An external HR consultant carried out an investigation and found events of non-compliance by Mr Mbubaegbu and four other consultants. The findings against Mr Mbubaegbu were considered to be more serious than for the other consultants, although there were fewer incidents. Mr Mbubaegbu and the other consultants had disciplinary action taken against them (the others had less serious disciplinary sanctions applied to them). Two investigations were carried out, during which Mr Mbubaegbu continued to work, and the final reports were produced eight months later. In the 16 months prior to the hearing, no more incidents occurred. The outcome of the disciplinary hearing was that Mr Mbubaegbu was summarily dismissed for gross misconduct – and his appeal was unsuccessful.
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Mr Mbubaegbu brought a claim to the Employment Tribunal (ET) for unfair dismissal, wrongful dismissal and race discrimination. One member of the ET believed that the dismissal was not a reasonable response as a number of the various incidents were trivial and the Trust had not taken the recent absence of incidents into account. However, the majority accepted that the Trust reasonably believed that Mr Mbubaegbu would not be able to change his behaviour and that dismissal was within the Trust’s range of reasonable responses. The ET dismissed all claims. Mr Mbubaegbu appealed to the Employment Appeal Tribunal (EAT). The EAT stated that it is possible for a series of acts demonstrating a pattern of conduct to be sufficiently serious and could undermine the relationship of trust and confidence between an employer and an employee; even if there was not one sole act which amounted to gross misconduct. In this case, the Trust had found that some of the actions were grossly careless and negligent, which amounted to repeated conduct of unsafe behaviour which put patients at risk. The Trust had lost confidence in him that he could change his behaviour, and so the EAT dismissed the appeal. It is useful to have authority from the EAT on this issue. It reflects an earlier decision in Neary v Dean of Westminster that conduct which undermined the trust and confidence in the employment
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relationship could amount to gross misconduct – and conduct could be made up of a single act or several acts over a period of time. The focus was on whether the conduct throughout the course of employment had undermined that trust and confidence, not whether one incident on its own amounted to gross misconduct. This will not be so in every case, however, and employers should be very cautious before deciding to dismiss with no prior warnings where there is no definite act of gross misconduct.
Apprenticeship MOT anybody? We have a few places left on our Compliant Apprenticeship Masterclass on the 17th July… so hurry to book your place, and make sure you’re ticking all the procedural boxes! Apprenticeships have continued to be in the spotlight since the introduction of the Apprenticeships, Skills Children and Learning Act 2009; so it’s more important than ever before to make sure your apprentices are on the correct documentation. In this masterclass we’ll look at issue such as:
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The employment status implications that may arise if an apprentice has not been issued with a compliant apprenticeship agreement
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Clauses that are required in order for an apprenticeship agreement to be compliant
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Contact the team Sarah Whitemore (Partner) – 02380 717462 Howard Robson (Partner) – 02380 717718 Lisa Joyce (Associate) – 02380 717447 Emma Kemp (Associate) – 02380 717486 Natalie Rawson (Solicitor) – 02380 717403 Chris Greep (Solicitor) – 02380 717411
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