How to Avoid Employment Tribunals: And What to Do If You Can't
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How to Avoid Employment Tribunals: And What to Do If You Can't

And What to Do If You Can't

Colin Everson

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eBook - ePub

How to Avoid Employment Tribunals: And What to Do If You Can't

And What to Do If You Can't

Colin Everson

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About This Book

This title was first published in 2002: The best way to avoid losing at an employment tribunal is to make sure that you don't get drawn into one. The author offers a practical training resource to help you understand the risks associated with employment tribunals, identify risk areas within your organization and, most important of all, provide you with the means to raise awareness amongst both managers and their employees and help them develop good people-management practice. At the heart of the resource are three compelling training case studies on unfair dismissal, racial discrimination and sexual discrimination. This resource also provides you with material to audit your current management practices and identify where and how to improve them.

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Information

Publisher
Routledge
Year
2017
ISBN
9781351786188
Subtopic
Sociologie
Edition
1
Case study 1
AN APPLICATION ALLEGING UNFAIR DISMISSAL
George Kempton and the Citizensā€™ Advice Bureau vs. Speedwell Pies and Pasties
INTRODUCTION
This case study is the longest of the three and in many ways the most complex. It is modelled very closely on a real case and all the events and the sequence of events are very close to what actually happened. Read it carefully and use the discussion break-points provided to review your own thoughts and opinions of the way in which it progressed and was conducted.
An application alleging Unfair Dismissal
George Kempton and the Citizensā€™ Advice Bureau vs. Speedwell Pies and Pasties
Image
PROCEDURAL CHECKLIST
A checklist is provided as part of this Resource on page 61. It has been annotated to show how Speedwellā€™s procedures stand up to detailed scrutiny. A blank copy is provided in Appendix 2 on page 93, which you can use as a check on your own procedures.
TRIBUNAL PROCEDURES
When you have read through the case, you may find it helpful to look at Tribunal Procedures on page 70, where there are charts showing the logic that is used to determine whether there has been Unfair Dismissal.
A BAD MONDAY MORNING FOR PETER LEWES
Peter Lewes arrived at Speedwell on a dreary Monday morning, and said ā€˜Good Morningā€™ briefly to everyone as he checked over the site before dealing with the dayā€™s post. He opened it in his office on the first floor. Amongst the usual welter of circulars, trade publications, appeals from charities and catalogues from their stationery supplier announcing ā€˜still more unbelievable dealsā€™ was an official-looking envelope. Inside it was a summons for him to appear before an Employment Tribunal in a few weeksā€™ time in a town about fifty miles from the site.
George Kempton, an employee who had been dismissed several weeks previously, was claiming that he had been ā€˜unfairly dismissedā€™. Though Peter was not exactly surprised, he had begun to believe that the incident on a Saturday morning had receded into the past and that his former employee had perhaps accepted the justice of his fate. Instead of which, Peter was now faced with all the distracting hassle of a tribunal hearing, a potential maximum award of Ā£50 000 to a man who had already caused him much trouble ā€“ and possible legal fees, which Peter could not afford, on top of any award made should he lose.
Summary dismissal was a severe penalty and he had not imposed it without much soul-searching. Now, he felt a knot in his stomach and asked himself yet again whether he had acted fairly ā€“ and whether he would be able to prove to a tribunal that he had done so. Wearily, he sat down to consider, go over the case once again in his mind and decide what to do. He began by reviewing the people directly involved, starting with himself.
The Management
Peter Lewes (aged 47) ā€“ proprietor for the past 11 months of a food manufacturing, wholesaling and retailing organization employing around 16 full time equivalent (FTE) staff, 24 full-time and part-time employees in all. He was working at home on the Saturday in question but in telephone contact with the organization via Jackie York, Deputy Manageress.
Jennifer Lewes (aged 39) ā€“ wife of Peter; not involved in the organization on a day-to-day basis, deals with marketing issues and financial accounts.
Rose Stockbridge (aged 24) ā€“ Manageress of the retail part of the organization. With eight years service, beginning as a ā€˜Saturday girlā€™, she was promoted about a year ago, just before the present proprietors bought the organization. Not working on the Saturday in question.
Jackie York (aged 36) ā€“ Deputy Manageress of the retail organization. Works part time, including most Saturdays. Fourteen years service, broken by a period of two years. Deputizing for Rose on the Saturday in question.
The Staff
Only those both working and affected by the incidents are listed.
Retail
Emma Gatwick (aged 16) ā€“ Saturday Girl, three months service, engaged by Rose Stockbridge.
Production
Anne Chester ā€“ full-time general production and hygiene assistant, six months service, engaged by Peter.
George Kempton (aged 38) ā€“ a long-serving full-time production employee, 23 years service. Joined the organization on leaving school.
Martin Taunton (aged 34) ā€“ full-time production assistant, two years service. Formerly worked for a much larger organization in a similar field.
Shaun Derby (aged 36) ā€“ full-time production assistant, 10 months service, engaged by present proprietor when he moved to the area.
Distribution
John Phoenix (aged 57 years) ā€“ delivery driver, 18 months service. Works mainly from about 4 a.m. to 9.30 or 10 a.m. Collects money from some ā€˜cashā€™ wholesale customers on Saturday morning and so tends to be rather later returning to base.
The Customers
Only those present during the incident are mentioned.
Mrs Exeter ā€“ a long-standing ā€˜regularā€™, who always comes in on a Saturday morning.
ā€˜Ladyā€™ Fieldstreet ā€“ another Saturday morning customer.
The Background
Peter and Jennifer bought the Speedwell organization from the previous owners, who had run it for about three years (making and selling, to both retail and wholesale customers, a range of pies, pasties and a limited range of flour confectionery items). The Leweses, who have other business interests, took on the existing staff at the time. The intention was to run Speedwell through the existing Production Manager (David Brighton) and Rose, the Shop Manageress. Both had been appointed by the previous owners. Peter spent about three days a week at the site (about forty miles from home until they could move closer) plus alternate Saturdays; Jennifer spent much less time there. Peter made a point of being present on occasions during the night, when most production tasks were in progress.
Over eleven months, the Leweses introduced many changes and improvements to working arrangements, including those involving health, safety and hygiene. All of these had been given scant attention by the previous owners! Among these changes were an arrangement with a local laundry to supply and launder sets of overalls (allowing two sets of clean overalls per production employee per week). Production staff were also issued with a pair of safety shoes, on the strict understanding that they must be worn at work ā€“ and only at work. These would be replaced annually. Peter also installed a shower, at a cost of several hundred pounds, for use by production staff, which they were allowed to use as often as they wished to. He installed a proper rest room and changing room for female employees, who had previously used a corner of a store room as an unofficial rest area.
On the sales front, Peter negotiated a contract with the local hospital to supply a range of items to their visitorsā€™ coffee shops. Obtaining this contract involved undergoing a stringent independent Hygiene Audit, at a cost of several hundred pounds, and accepting a number of conditions about the premises and the behaviour of staff. All production staff were informed about ā€“ and involved fully in ā€“ the changes required to secure the new ā€“ and vital ā€“ business.
The chief events leading to the eventual employment tribunal hearing triggered by George Kempton were as follows:
ā€¢ Retail sales were badly affected by a large roadworks scheme in the immediate area, which made the market square a mess and took away many parking spaces.
ā€¢ The Production Managerā€™s role became redundant and Peter helped him find acceptable alternative employment in a similar organization.
ā€¢ Peter then negotiated a deal with the production staff whereby they became effectively an autonomous working group, or ā€˜cellā€™, subject to his general direction. All production staff were granted a 12Ā½ per cent pay rise to recognize the increased responsibility they now accepted, for example daily production scheduling and ingredients stock control.
ā€¢ Peter instigated a programme of regular briefing for all staff, including Saturday staff, to keep them informed about the changes he was making. Briefing sessions, backed up by notes on the new notice boards, placed emphasis on health, safety and hygiene matters ā€“ especially concerning the hospitalā€™s requirements.
ā€¢ The improvements which Peter made, coupled with developing a close working relationship with the local Environmental Health Officers led to the award of the local authorityā€™s gold award for food hygiene standards.
ā€¢ After Brightonā€™s departure, it became clear that there had been tensions between him and both the production and retail staff. On at least two occasions, this had led to physical confrontation between Brighton, Kempton and Taunton. No reports were made of this at the time to Peter, nor were previous incidents mentioned by the former owners.
ā€¢ Peter introduced formal Contracts of Employment, which specified detailed Terms and Conditions of Employment. He used the format recommended by the Trade Association. The Contracts were discussed fully and individually with every staff member, before they signed what to most of them was a highly unfamiliar document.
ā€¢ The Terms and Conditions specified clearly what would constitute ā€˜Gross Industrial Misconductā€™ for which the penalty would be summary dismissal. The implications of this penalty were made clear to all staff members. There was no union involvement at the site. Peter would have been perfectly happy had there been, having worked mostly in larger organizations and appreciating the positive role which Unions frequently play. Not surprisingly, no member of staff had any formal written warnings on file, or any recorded verbal warnings.
ā€¢ For production staff, the contracts included reference to the new ā€˜semi-autonomousā€™ working arrangements and their responsibilities under them.
ā€¢ All regular staff who did not already hold the Basic Food Hygiene Certificate were enrolled on a course run by the local hospital. All the male production staff already held this award, or an equivalent qualification from previous training.
POINT FOR DISCUSSION BREAK
Assess the background work that Peter had done concerning employment systems, particularly concerning
ā€¢ communications with staff
ā€¢ changes to working arrangements in production
ā€¢ welfare arrangements (for example laundry provision)
ā€¢ issue of Contracts of Employment and Terms and Conditions of Employment.
Do you think that Peterā€™s actions were
ā€¢ fair?
ā€¢ consistent as between the employees?
In general terms, where would you rate him on the Personal Questionnaire you have completed for yourself? From the evidence you have, does he appear to be a hawk or a dove by inclination?
The First Incident
About four weeks before the incident that resulted in George Kemptonā€™s summary dismissal, Peter arrived at the site at 8.30 a.m. and was approached immediately by Anne Chester. She told him there had been an incident involving herself, George Kempton and a wholesale customer, Sue Hurst, who had come in to complain about human hair found inside a pie. The customer had spoken initially to Rose Stockbridge, who summoned George to talk to her as he was the longest-serving member of the production team. According to Anne, his overalls were dirty, he was not wearing a hat and wore filthy trainers rather than the safety shoes with which he had been issued. The customer told him that he ā€˜smelledā€™. She also commented on a bicycle which was propped against a table in the production area. Anne confirmed it had been there and, under questioning by Peter, said it belonged to George Kempton.
George Kempton retorted that the hair was nothing to do with him and told the customer that probably it was one of hers. Anne had to intervene to calm things down. This all happened on a ā€˜lightā€™ production day (Thursday). George had gone home before Peter arrived and left no message about the incident. Fortunately, no retail customers became involved. The offending hair appeared to match George Kemptonā€™s colouring but, short of conducting forensic tests, there was no way of proving it was one of his. Peter had no doubt that it had been baked into the product.
Peter dealt first with the angry customer, involving him in a visit to her premises. Sue Hurstā€™s account, broadly speaking, agreed with that of Anne. She said it was not the first time that she had seen George Kempton in a less than hygienic state and that one more such incident would cause her to take her business elsewhere. Peter then rang George at home and told him that he would investigate the incident at 9.30 the following morning.
This he did, in the presence of Rose Stockbridge. George Kempton was very quiet and at first refused to answer Peterā€™s questions. After hearing the accounts of Anne Chester and Sue Hurst, however:
ā€¢ he eventually admitted that the bicycle was his and said he feared it w...

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