UK: Unfair dismissal – “taking a sickie” is gross misconduct

An employer can fairly dismiss for gross misconduct where it has a genuine and reasonable belief (after reasonable investigation) that an employee has dishonestly exaggerated their condition and fraudulently claimed sick leave and pay. The EAT confirmed in Metroline West v Ajaj that such dishonesty is a fundamental breach of trust and confidence and may justify dismissal.

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UK: HR advice on disciplinary matters should be limited

HR should ensure that, when advising managers investigating or deciding on disciplinary matters, their advice is limited to matters of law and procedure, for example, to ensure all necessary issues have been addressed clearly;  they should not advise on culpability or the appropriate sanction (save for addressing issues of consistency). The report of a manager investigating a disciplinary matter must be the product of their own investigations.

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UK: Unfair dismissal – dismissal for attending work smelling of alcohol was unfair given failure to follow policies

Employers seeking to dismiss for misconduct should consider carefully whether the behaviour properly falls within the category of gross misconduct and ensure they apply the precise terms of their policies and procedures. In McElroy v Cambridgeshire Community Services the dismissal of an employee for attending work while smelling of alcohol was unfair where the policy required an employee to be “unfit for duty” and there had been no evidence or finding to that effect. The dismissal was also unfair in relying on the employee’s refusal to attend a second occupational health appointment, given that it had not been made clear that this would be treated as a disciplinary matter and the employer had not put this allegation to the employee. Continue reading

UK: Termination – payment in lieu of notice payable despite subsequently discovered gross misconduct

Employers should review any precedent payment in lieu of notice (PILON) clauses and compromise agreement wording to ensure that any payment will not be payable or can be recovered if, having dismissed an employee, the employer subsequently discovers the employee’s prior gross misconduct.

The Court of Appeal has ruled that, where an employer exercised its contractual right to terminate with a PILON payment, that payment remained payable as a debt even though the employer subsequently discovered that the employee had committed gross misconduct which would have entitled it to dismiss summarily.  While choosing to exercise the PILON clause will ensure the termination is lawful and therefore preserve the right to enforce any covenants, it also creates a contractual debt from which the employer cannot resile unless the contract expressly permits this.  

A carefully drafted PILON clause may therefore present a solution.  The case also highlights the importance of compromise agreements including a warranty from the employee that there has been no prior breach of contract. Continue reading

UK: Cavenagh v William Evans

In an English Court of Appeal case it was held that the gross misconduct of a managing director of a company, which was only discovered after his redundancy, did not enable the company to avoid liability to pay an agreed payment in lieu of notice. (Cavenagh v William Evans [2012] EWCA Civ 697). Continue reading