Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

Small businesses

The Government’s paper looks at the Australian Small Business Fair Dismissal Code – a one page document which provides a very basic set of guidelines to follow when a business with fewer than 15 employees dismisses an employee for conduct or capability. Views are sought as to whether, as regards small businesses, a code such as this could replace the Acas Code which currently applies to all employers, irrespective of size, in relation to discipline and performance matters. The paper also seeks evidence on whether small businesses should be able to dismiss employees on a “no fault” basis, and instead that employees receive an automatic “compensation” payment, whatever the reason for dismissal. The Government is examining how other countries deal with dismissals in the case of small businesses. In Germany, for example, businesses employing 10 or fewer employees are exempted from unfair dismissal laws. 

Whilst the immediate reaction of small employers will likely be to welcome such a change, the wider implications of no-fault dismissals must also be considered. It would appear that the proposal would effectively amount to giving such employers an exemption from unfair dismissal laws except if the dismissal is for a discriminatory reason, or in connection with whistleblowing or assertion of a statutory right. Could this inhibit small employers from taking on more staff if that means exceeding the maximum number of employees for “small businesses”? Since job security will be diminished, it may be harder for small employers to compete for the best talent. Further, without recourse to an unfair dismissal claim, there is a risk that an aggrieved employee will bring a discrimination claim or allege that the real reason for dismissal related to whistleblowing (whether or not this would have any substance at all). However, this risk could be addressed by strengthening the ability of the Employment Tribunal system to weed out unmeritorious claims. 

Having acted for a number of small businesses and charities, our view is that a less complex code would be desirable, particularly for businesses with fewer than 10 employees. However, whether or not they should effectively be exempted from unfair dismissal laws is a more contentious issue. An area of controversy which is inherent in the Government’s proposals is the suggestion to compensate employees for no-fault dismissals. If the compensation is set too high, employers will remain discouraged from taking on staff. If too low, the employees will have virtually no dismissal rights. The Government asks for views on the appropriate compensation. Perhaps a compromise would be to increase the statutory minimum notice period by 2-4 weeks after the employee has 2 years’ continuous employment (ie the new minimum period of employment for unfair dismissal clauses for employees taken on after 5 April 2012), making sure that the legislation provides for employers to be free to pay in lieu of notice so that they not burdened with an employee they do not want.

A point which is unclear from the Government’s paper is whether small employers will be able to opt not to make a no-fault dismissal compensation payment on termination of employment in circumstances such as gross misconduct. It is unclear as yet, whether, if no compensation payment is made, the employee would be entitled to make an unfair dismissal claim, or would their remedy simply be for payment of the statutory no-fault dismissal compensation amount? It would seem sensible that small employers should not have to pay an employee compensation where it has followed a fair dismissal route in such circumstances but if this option is chosen, it also seems fair that the employee should have full recourse to usual unfair dismissal rights. It will be necessary for any legislation to define the concepts clearly and provide for this type of situation to be addressed. 

Acas Code

The Government is also seeking views on the Acas Code, which was already substantially revised and reduced in length in 2009. As well as having a concern that it is not suitable for small businesses, the Government also considers that it may not deal adequately with cases of poor performance. The criticism is that the Code concentrates more on backward-looking actions (such as conducting investigations) which are more relevant to disciplinary issues, than what is to be done for the future.

Whilst there is no doubt that the abolition of the former statutory disciplinary and dismissal procedures was a beneficial step for employers and has simplified Employment Tribunal claims, we do not believe that the revision of the Acas Code has made much difference in the actual dismissal process. It would have been useful if it had been made absolutely clear that ill health dismissals were not covered by the Code. However, it is our experience that the Code does not hinder the performance management process and it would certainly not be helpful to make the Code any more complex or prescriptive.

Reed Smith will be responding to the Government Call for Evidence paper and for that purpose, we would be interested in hearing your views on the paper or, indeed, on any of the comments we have made above. Please feel free to send in your comments via our blog or to email direct by contacting Ruth Bonino (rbonino@reedsmith.com). Alternatively, you may wish to respond in person. The consultation closes on 8 June 2012.

What happened in this case?

The Suffolk Mental Health Partnership NHS Trust (the Trust) dismissed two of its nurses for gross misconduct in connection with their handling of an 87 year old patient who suffered from dementia. A colleague reported witnessing them restraining the restless patient (with the help of two other health care workers) by securing him to a chair which was in turn tied to a table. The same colleague had raised similar concerns about the same patient's treatment by different members of staff when he had been agitated during the preceding day shift.

Following the report, the nurses were suspended pending a disciplinary investigation. Shortly afterwards, the Trust's Vulnerable Adult Protection Committee took the decision to alert the police to the incident. After the police informed the Trust that no action would be taken, the Trust continued with its own investigation which recommended disciplinary action.

At the disciplinary hearing, the nurses accepted that they had tied the patient's chair to the table but did not accept that they had tied the patient to the chair or that their actions were inappropriate. In reaching a decision, an experiment was conducted to test whether the explanation put forward, that a sheet had been wrapped around the patient to make him feel like he was in bed (rather than his being tied to the chair), was credible. The manager conducting the hearing concluded that it was not, although the nurses were not given the opportunity to comment on the experiment and were not even informed that it was being undertaken.

The nurses were dismissed for assault, negligence and professional misconduct under the Trust's disciplinary procedures. The nurses appealed internally, however the appeal panel supported the original findings, in what amounted to a review rather than a complete rehearing of the case.

The Employment Tribunal concluded that the Trust had unfairly dismissed the nurses. It identified a number of errors in the disciplinary process followed by the Trust which rendered the dismissals procedurally unfair, particularly in circumstances where the outcome of the process was likely to impact on their ability to pursue a career in nursing. The key criticisms were the failure of the Trust to (i) give the nurses the opportunity to be present at and comment on the “chair experiment” and (ii) obtain and have reference to the first written statement provided by the colleague who witnessed the event giving rise to the allegations (which differed from her subsequent evidence to the disciplinary hearings).

The Tribunal also decided that no reasonable employer could have concluded that the patient had been tied to the chair (bearing in mind that this would mean siding with the one witness rather than the two nurses and two healthcare workers) and that the Trust had failed to take into account the relevant context (i.e. the fact that the patient had also been very agitated on the day shift and no harm was done to the patient).

The Employment Appeal Tribunal (EAT) overturned the Tribunal's decision, and the nurses appealed to the Court of Appeal (CA).

The Court of Appeal

The CA upheld most of the Tribunal's findings, including that there had been a procedurally unfair dismissal.

Procedural defects in disciplinary procedure made dismissals unfair

The CA found that the Tribunal was right to take the view that the procedures followed by the Trust had needed to be particularly rigorous in view of the importance of the process to the nurses' careers. With this in mind, the CA found that the Tribunal had been entitled to find that the procedural defects were fatal to that process and that it did not substitute its own view, but instead had justifiably concluded that no reasonable employer would have acted as the Trust did. This alone was sufficient to render the nurses' dismissals unfair and the fact that the nurses did not appeal internally against the procedural defects did not excuse the defects.

The CA did find that the Tribunal overstepped the mark in concluding that no reasonable employer could have concluded that the patient had been tied to the chair. This meant that it was necessary for the Tribunal to assess the likelihood of the nurses being fairly dismissed if a fair procedure had been followed, in order to assess whether it was appropriate to reduce the compensation awarded to them (a Polkey reduction). However, the CA made clear that, even if the patient had been tied to the chair, a decision to dismiss would still very likely be outside the band of reasonable responses an employer might have taken and therefore unfair (particularly given the nurses' length of service, the fact that no harm was done to the patient and that the nurses' actions were intended to protect the patient).

Informing the police

The CA was very disapproving of the decision to inform the police in circumstances where there was obvious justification for restraining the patient. The CA indicated that employers should only inform the police when, after very careful consideration, they hold a genuine and reasonable belief that a crime may have been committed.

Right to suspend

Although the case did not turn on the Trust's decision to suspend the nurses, the CA also took the opportunity to emphasise that suspension must not be a "knee jerk reaction" in cases of alleged misconduct. The CA indicated that the likelihood of the complaint being upheld, the risk of a repeat incident and the past record of the employee are all relevant factors in deciding whether it is appropriate to suspend. Other factors include the seriousness of the allegation and the risk that, by attending work, an employee might prejudice an investigation.

What does the case mean for employers?

Primarily, the case shows that very high procedural standards are expected when a disciplinary procedure could have career long implications for the employee. This could apply to many employees, even if their professions are not overseen by a regulatory body.

The case also highlights the fact that, although an internal appeal hearing can be an opportunity to put right any defects in the original decision, this does not mean that employees cannot challenge the fairness of their dismissal by referring to alleged procedural defects for the first time in Employment Tribunal litigation. Employers who have concerns about the procedure followed in a first instance disciplinary decision would therefore be well advised to consider a complete rehearing of the matter on appeal.

This decision could also be used by an employee to support an allegation that, by inappropriately reporting a matter to the police or suspending the employee without justification, their employer has fundamentally breached its implied obligation to maintain the relationship of mutual trust and confidence, thereby entitling the employee to resign and claim constructive dismissal. Accordingly, great care should be taken when deciding whether to suspend an employee or report a matter involving the employee to the police. In particular, it is recommended that before reporting a matter to the police, an employer should at least carry out some investigation including, if appropriate, speaking to the parties involved. Furthermore, employers should bear in mind that even when there is a contractual right to suspend in the employee’s contract of employment, this right must not be exercised capriciously or perversely, whatever the circumstances.