The summer is a good time to take stock and look for trends. At Legal-Island, we've been analysing some recent cases from NI and beyond that cover disciplinary and dismissal issues. We've pulled together three of the most interesting and have set out below some helpful recommendations and action points.

The cases referred to below cover issues about the differences between employees and workers; the fundamental differences between NI and GB laws on dismissal; and essential actions in ill-health dismissals.

Not all Workers are Employees - Don't Get it Wrong

The distinction between ‘worker’ and ‘employee’ can be crucial and a mistake can be costly. The NI tribunal case of Michael Riley v PCO Davies Limited [2016] NIIT 2602/15 illustrates this point only too well.

The claimant was invited to a meeting concerning a complaint made about his conduct whilst on the site of a client which had the potential to cause the loss of a major commercial contract. The claimant left the meeting believing he had been dismissed after the Managing Director said, “I am gonna have to let you go”.

Notwithstanding that the respondent later tried to clarify its position, the NI tribunal found that the respondent here clearly made a rash, hasty decision to sack the claimant. However, the situation is complicated by the fact that he genuinely believed he was entitled to do so, based on the assumption that the claimant was an ‘ad hoc worker’ and not an ‘employee’. The employer did not follow (and therefore breached) the statutory dismissal procedures - the dismissal was automatically unfair and a 40% uplift was applied to the award.

Practical Questions and Options

• Q. Do you have categories of worker or employee that are a-typical?
• Q. Do your disciplinary and dismissal procedures apply to all categories of employee/worker?
• Q. What arrangements are in place to deal with unsatisfactory agency workers or casual workers?

Revise your procedures to ensure they comply with statutory requirements and the LRA Code of Practice. Consider applying the NI statutory procedure standards to all categories of workers and having separate arrangements for agency workers only.

Beware of GB-Based Case Law and Statutes: We Have Different Laws in NI

Phoenix House Ltd v Stockman & Anor [2016] UKEAT 0264_15_1705 was GB Employment Appeal Tribunal case. Ordinarily, these cases would have persuasive weight in NI tribunals because the laws are similar in both jurisdictions. However, the NI statutory dismissal laws don't apply in GB and this case could confuse things if the findings of the EAT were to be followed in NI by employers.

NI employees are covered by statutory dismissal procedures that apply to pretty much every non-collective dismissal except where the reason is a statutory ban on employing the individual. The claimant employee in this GB case (where statutory procedures do not apply and individual misconduct cases are generally covered by an Acas Code of Practice) was dismissed by the employer for a breakdown in the relationship following an unsuccessful grievance and a warning having been given to the claimant.

The original tribunal found the dismissal procedurally unfair and also awarded a maximum uplift of 25% for the employer's failure to follow the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures when dismissing the employee. On appeal, the EAT has confirmed the unfairness of the dismissal but has ruled that the Acas Code does not apply to SOSR dismissals and, therefore, no uplift in award can be made.

NOTE: The Acas Code applies in GB only. The Labour Relations Agency Code applies in Northern Ireland and does cover SOSR dismissals and the tribunal may award up to 50% of an uplift to an award for failure to comply with the statutory procedures in NI.

Practical Questions and Options

• Q. Do you have GB-based advisers?
• Q. Are they aware that NI laws on unfair dismissal and discipline are different to those in GB?
• Q. Do your procedures refer to GB legislation, such as the Employment Rights Act 1996, or the Acas Code?
• Q. Do you apply the statutory procedures consistently?
• Q. Do your managers know how they operate?

Ensure you follow the NI statutory (123) procedures when dismissing employees in NI for any reason other than it being unlawful to continue to employ someone. However, keep in mind that, even in 'statutory ban' dismissals, an employer must follow reasonable procedures, consider alternatives to dismissal and comply with the requirements of the Employment Rights (NI) Order 1996.

The statutory uplift may not apply in statute ban dismissals in NI but employees need only one year's continuous service to claim unfair dismissal, as opposed to the two years' service required in GB. And, if you get it wrong and fail to follow the 123 procedures in NI, and the reason for termination is not a statutory ban on continued employment, your decision to dismiss will be automatically unfair and employers will face an uplift of up to 50% in any award for unfair dismissal. You may wish to consider applying the statutory procedures to all dismissals in NI:

Step 1: Write to the employee notifying him/her of the allegations against him/her, and invite him/her to a meeting to discuss the matter;

Step 2: Inform the employee of the basis of the allegation before holding the meeting to discuss this – at which the employee has the right to be accompanied – and notify the employee of the decision;

Step 3: If the employee wishes to appeal, hold an appeal meeting at which the employee has the right to be accompanied – and inform the employee of the final decision.

Always Take Medical Advice in Ill-Health Dismissal Cases and Never Predetermine the Outcome

It is important that the employer takes professional medical advice into account and does not predetermine the matter, as the NI tribunal case of Mark O’Hare v Hastings Hotels Group Ltd [2016] NIIT 1525/15 points out.

There were issues of unfitness to work in this case and the respondent firmly held the view throughout that the claimant was misleading everyone by faking sickness. This was despite GP sick notes, Occupational Health reports and an independent HMRC adjudication that the claimant was ‘unfit for work’. The respondent contended that the claimant’s misleading actions were a breach of conduct which led to a loss of trust and confidence in him as an employee.

The tribunal found that there was a predetermined outcome to the disciplinary process and the process and penalty were outside the band of reasonable responses for a reasonable employer in the circumstances of the case.  The claimant’s dismissal was thus unfair.

The tribunal was extremely critical of the employer here who ignored numerous medical opinions that the claimant was unfit for work. It went on to hold that there is a burden on employers, especially when dealing with employees who are ill with mental health problems, to be proactive, clear and consistent in the way they deal with them. It further commented that good industrial practice requires that an employer who refers an employee to OH should take the lead in relation to contacting the employee to facilitate his or her return to work.

Practical Questions and Options

• Q. Does your prior knowledge of an employee's previous conduct make you suspicious of their motives in a new incident?
• Q. Are you in danger of being seen as biased?
• Q. Are you actually biased and therefore likely to endanger the outcome of a subsequent tribunal case?
• Q. Do you have OH structures and support facilities/policies in place, should the need arise?

Always take medical advice in ill-health cases. HR professionals are just that - they are not medical experts, regardless of how many ill-health cases you might have dealt with.

Challenge your preconceptions. Ask yourself, 'How might an outsider, who doesn't know me or the employee, view MY actions?'

Remember - it is for the employer to show that the dismissal is fair under the law. A fair and unbiased procedure and a decision based on sound, appropriate advice after a reasonable investigation are all essential if the employer is to show the dismissal is fair. And you must comply with the 123 procedures for ill-health/capability dismissals in NI. Consider stress-testing your initial decision against these statutory standards before coming to a final decision or issuing any letter of dismissal.

NI Tribunal decisions are available on the OITFET website.

The above recent cases all featured in Legal-Island's employment law update email service. The full case reviews and all others going back several years are available to subscribers and fully searchable on our Northern Ireland Employment Law Hub.

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