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EMPLOYERS UPDATE: Developments in Employment Law

In this newsletter, I am concentrating on just one case. It is not even an appeal case and therefore sets no precedent. However, the Employment Tribunal case of Ball – v- First Essex Buses Limited raises a number of useful points, which I would like to draw to your attention.

Mr Ball claimed that he had been both unfairly and wrongfully dismissed. The first point to note is that, although journalists appear to use these terms interchangeably, there is a very real and fundamental difference between unfair and wrongful dismissal.

I do urge you to find an hour to read the 26 page Judgment of the Employment Judge. Quite apart from anything else, it demonstrates the approach that an Employment Tribunal will take in reaching its decision. The law requires that the parties to a Tribunal hearing must be made aware of the reasons why they won or lost. There is no doubt here that the parties who appeared before Employment Judge Tobin will be in no doubt as to why they won or lost.

Briefly, a wrongful dismissal is a dismissal in breach of contract. The company decided that Mr Ball had committed gross misconduct and therefore he should be dismissed without notice. The Tribunal determined that he had not been guilty of gross misconduct and therefore the company had breached his contractual entitlement to 12 weeks’ notice. The dismissal was therefore wrongful.

With unfair dismissal, the clue is in the name. In order for a dismissal to be fair, first of all, the employer must show that the reason for the dismissal was one of the potentially fair reasons set out in the legislation. Here, everyone agreed that Mr Ball had been dismissed for a reason relating to his (mis)conduct, one of the potentially fair reasons.

Beyond that, a Tribunal has to be satisfied that the employer acted reasonably in dismissing for that reason. As the Judge helpfully sets out in the Judgment, there are two aspects to this: a) did the employer utilise a fair procedure? and b) did the employer's decision to dismiss fall within the range of reasonable responses open to a reasonable employer?

I commend to you paragraphs 9 to 16 of the Judgment for a clear explanation of the law relating to one fair dismissal.

In passing, I also commend the layout of the reasons supporting the Judgment. The Judge summarises the Claim and Defence (Response), sets out the law, gives his findings, based on the evidence, as to the facts in the matter and then he makes his decision. Having established that Mr Ball was both unfairly and wrongfully dismissed, he goes on to explain why it is he awarded him £37,639.

You will note that the Claim was issued in October 2017 and came before the Tribunal for hearing in August 2018. 10 months is long enough but the indications are that, in London South at least, proceedings are becoming protracted, partly at least due to a lack of resources. At a Preliminary Hearing in October 2018, I was told that the earliest date available for a one-day hearing thereafter was July 2019 and a two-day hearing in August

  1. My five-day hearing was finally listed for November 2019, some 20 months after we posted the original Claim.

Note also (paragraph 19) that the parties placed before the Employment Judge 437 pages of documents. Even then, it would seem that they omitted both Mr Ball's Contract of Employment and the company's Disciplinary Rules, both essential documents, you would have thought.

Anyway, on to the facts of the case.

Mr Ball, then aged 61, had been employed by the company as a bus driver for over 20 years when he failed a random drug test. His saliva was found to contain traces of cocaine.

At first glance, it might be surprising that his dismissal, confirmed after two internal appeals, was adjudged unfair. Do please read the Judge's Reasons why that was the case.

Do not make the mistake of thinking that this case means that an employer must not dismiss an employee who fails a drug test. First of all, as an Employment Tribunal case (as distinct from an Appeal case), it sets no precedent. Secondly, the principal reason the company lost the case was because it spectacularly mismanaged the disciplinary process. At various stages, influential Managers within the company described the case as "black or white" and "open and shut". This enabled the Judge to criticise the "closed minds" of the dismissing Manager and the two Managers who handled the subsequent appeals.

It is also made clear (paragraph 52) that the company's General Manager had formed the view that Mr Ball had to be dismissed and made his Managers aware of that view. In fact, the General Manager provided a sinister presence influencing the entire process and undermining the independence of those whose job it was to make the decision.

The case is really an object lesson in how not to conduct a disciplinary process. Crucially, the company did not even follow its own Disciplinary Policy which stated in terms that there was a positive obligation on the company to consider all aspects of the employee’s case. It did not do so. Very clearly, it looked only for reasons why it could find Mr Ball guilty. It was significant (paragraph 46) that Mr Ball was dismissed for being “under the influence of illegal drugs”, this being one of the examples of what might be considered "gross misconduct" as set out in the Disciplinary Policy.

That said, there was no evidence that Mr Ball had been under the influence or unfit for work. In fact, the evidence was that the saliva test carried out by the company indicated that, if Mr Ball had been using cocaine, then that use would have been low and infrequent and would not have put him under the influence.

I think that the case also demonstrates how an employee should approach a disciplinary matter. Too often, by the time I am consulted by employees, it is too late to advise them how to deal with such a hearing. Often, they have gone into the hearing believing that they can only be dismissed for misconduct if the evidence shows beyond a reasonable doubt that they are guilty. Not so. The correct test for unfair dismissal is as I have set out above and, by and large, so long as an employer acts reasonably, he will dismiss fairly. An employee who does not engage with the disciplinary process, on the basis that he is innocent until proven guilty, will often be disappointed, both at the disciplinary hearing and at the Tribunal.

It is not stated explicitly in the Judgment but the implication is that Mr Ball received sound advice from his Union or lawyers at all times. Having failed the company's drug test, he arranged his own. One of the flaws in the company's process was that it failed to consider the result of the two hair follicle tests that Mr Ball arranged and which were both negative. The Managers had wrongly been advised by the company's HR that the hair follicle results could be ignored. The Judge concluded that this must be evidence of the company's determination to arrive at a preordained conclusion, namely that Mr Ball should be dismissed.

The company lost the unfair dismissal case because the Judge concluded that no reasonable employer would have discounted the hair follicle tests and indeed a whole host of other contra indications which suggested that it would be highly unlikely that Mr Ball, a diabetic with high blood pressure, would have taken cocaine. It failed to consider the possibility that (as had been shown in other cases) he might have picked up traces of cocaine from banknotes which he handled in the course of his work. Further, Mr Ball had 20 years’ creditable service and an exemplary disciplinary record. His Managers were surprised at the suggestion that he might be a cocaine user. Furthermore, the indications were that Mr Ball's negative hair follicle results were more trustworthy than the company's single saliva test result.

Having established that Mr Ball had been unfairly dismissed, the Judge awarded him £14,425 by way of basic award. This is calculated in the same way as a statutory redundancy payment and is as high as it is simply because of Mr Ball's age and length of service at the date of his dismissal.

Mr Ball found a new, but less well paid, job. The Judge awarded him a sum equivalent to the difference between what he would have earned had he remained with the company and what he would actually earn in the three years that remained until his proposed retirement.

In my experience, it is rare for Judges to award as much as three years loss of earnings. A Judge can add 25% to the compensatory award where an employer fails to comply with the ACAS Code of Practice and impose a penalty of up to 1 £5,000 where a case has interestingly, HMG announced on 17 December 2018 that they planned to increase this limit to £20,000.

"aggravating features". In that latter regard, it would seem that such penalties are extremely rare. In the first three years in which the scheme was operating, a grand total of £17,000 was imposed. The penalty is paid not to the claimant, but to HM Government. This is therefore not a huge money spinner.

Perhaps, in the light of the robust findings of the Judge (not only did he find that the company approached the matter with a "closed mind" but he found one of its witnesses neither truthful nor credible and another two witnesses inconsistent), it was surprising that he penalised the company by uplifting the award by only 5% for its disregard of the ACAS Code and declined to impose any penalty on the company on the basis that the case contained "aggravating features."

The Judgment, though not short, is worth reading. Some new clients have the idea that the Employment Tribunal is an informal round-table discussion forum at which a "fair" outcome is somehow achieved. It is not and a consideration of Judge Tobin’s Judgment and the reasons for it makes clear that a Tribunal is very much a Court, that matters are considered very carefully and that detail counts.

As always, these Newsletters are only a guide to some changes in Employment Law. They are by no means exhaustive nor an alternative to getting proper advice about your particular problem. Expressions of opinion are to be taken as my own and do not necessarily represent the view of the firm. Please call me for more help on any employment matter.