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Archive for the ‘Employment law’ Category

Summer Q and A’s

In business principles, discipline and grievance, Employment law, health and safety, holiday on June 20, 2022 at 11:23 am

With the hottest day of the year last week, summer is well and truly underway. But as much as the sun puts a smile on our faces, hot weather can cause issues in the workplace. Here are some of the questions we get asked about summer-time working:   

1. Is it too hot to work?

You may hear from employees, “it’s too hot to work, you have to send us home.” However, the Workplace Health, Safety and Welfare Regulations 1992 state a reasonable temperature must be maintained at work. There is no mention of a maximum! Keep staff cool by allowing them to switch on fans and air conditioning or ‘dress down’ on hotter days if possible. Could outside workers start earlier or later to avoid the midday sun?

2. How do I look after vulnerable employees in extreme weather?

Are any of your employees pregnant or do they have a disability? They may be more affected by hot weather. Have a discussion with them – you may be able to help by allowing them to work in a cooler area, take more frequent breaks, or work from home temporarily.

For some employees, hot weather may exacerbate medical conditions. Don’t jump to conclusions regarding an employee’s sickness absence on a hot sunny day as they may have sunstroke or severe hayfever. We always recommend that you should carry out a return-to-work interview.

3. What about home workers in hot weather?

There’s no expectation that you should install air conditioning in your employees’ homes! However, they should have the same rights as those working in the office. For example, more vulnerable staff should take more breaks, even when working remotely.

Check in with homeworkers and encourage them to put in place measures to keep cool and hydrated – such as ventilation, keeping blinds closed, drinking plenty of water, taking breaks.

If staff working from home feel that the temperature is unreasonable they should speak to their manager about what arrangements can be made.

4. How do I manage holiday requests?

As the sun comes out thoughts turn to holidays. Now is a good time to remind employees of your holiday policies and procedures.

Your mechanisms for handling holiday requests are important, ensuring operational cover and communicating the need for approval before bookings are made and how conflicting requests will be treated i.e., first come first served, or alternating priority for popular periods. Good holiday policies will also consider cancellations, travel disruptions on returning, and what would happen if sickness overlapped with holiday.

5. What do I do if I think my employee is ‘pulling a sickie’ to enjoy the sun?

Employees who are refused a holiday request may take the time off anyway. Alternatively, you may suspect a member of staff is ‘pulling a sickie’ so that they can take advantage of the good weather.

Don’t jump to conclusions – conduct a full investigation into the absence. From here, it may become a disciplinary issue.

6. What if there is travel disruption?

Trains may travel slower in hot weather to prevent the tracks from buckling, or there may be traffic jams due to holidaymakers or tourists.

Employees should also be encouraged to plan ahead for their journeys where it is known that this is likely to be a problem and make allowances for delays.

If you would like to know more about this topic contact Rob Bryan Associates – 01462 732444 / rob@robertbryan.co.uk

Preparing the Workforce for Impending Strikes

In absence, business principles, Employment law, government, pay, workers on June 20, 2022 at 11:08 am

Significant travel disruption is expected on 21, 23, and 25th June as members of the RMT Union strike over pay, proposed job cuts, and conditions. The action includes drivers, guards, catering staff, signallers, and track maintenance workers, effectively shutting down the national railway network. It is expected that service will be reduced to a fifth of the normal capacity.

Action point:

If your employees are unable to get to work:

  • What alternatives are there? E.g. work from home, hybrid workers could change their work at home days, agree annual leave, enforce annual leave (this can only be done with twice the length of the annual leave to be enforced eg two days’ notice to enforce one day of annual leave, and so employers looking to do this should do so soon), use banked time in lieu, agree period of flexible working
  • If the employees are to work their contracted hours or use authorised leave they are entitled to be paid as normal

If your employees will be/are late:

  • check what your contracts say about pay/absence
  • Be wary of rounding up’ pay, e.g. when an employee arrives 10 minutes late for an 8.00am shift they will not be paid until 8.30am. Employees may feel this unfair when lateness is due to strikes and it could also be deemed an unlawful deduction of wages. It could also cause pay to dip below National Minimum Wage for lower-paid workers.
  • Employees could be given the option of working the time back.
  • Employers could treat these instances differently to other types of lateness as they are not the employees’ fault and they may not have any other option. Make sure that this approach is applied consistently across the workforce, and be aware that this could set a precedence for future instances.

If care arrangements are affected:

  • Care, child-care settings, and schools may have to close or limit their provision if their staff are adversely affected by the situation. Employees have a statutory right to unpaid time off to care for dependants.
  • If this is likely to be an issue we recommend having a conversation with your employees as soon as possible to see what arrangements can be made.

If you would like to know more about this topic contact Rob Bryan Associates – 01462 732444 / rob@robertbryan.co.uk

Government to extend the scope of exclusivity ban

In contracts, Employment law, Equality, government, pay, workers on June 20, 2022 at 10:58 am

An exclusivity clause within a contract prevents a worker from being free to take other work or work for another employer whilst being on standby awaiting work.

Back in 2015, the government looked at restrictive practices used by some employers using zero-hour contracts. For a zero-hours contract “exclusivity clauses” are already banned and unenforceable.

The government has now announced that any exclusivity restrictions placed upon workers whose earnings are below or equivalent to the lower earnings limit (currently £123 per week) will also be banned. Clearly, there is scope for this band to be widened in the future. No date has yet been set for implementation however the legislation will also give workers protection from unfair dismissal and the right not to be subjected to detriment for failing to comply with an exclusivity clause. There is also a right to claim compensation.

Action point:

There isn’t yet a date for when the change will come into force but it is due in Parliament later in 2022. Employers can prepare by:

  • reviewing employment contracts and amending any exclusivity clauses to apply only to those earning above the LEL
  • Work out the weekly earnings for employees so that you are aware who the rules apply to
  • Update policies and procedures e.g. employers can still require staff to tell them that they have additional employment even if exclusivity cannot be enforced
  • Check total working hours – to comply with Working Time Regulations, those working more than 48 hours per week across all employment need to sign an opt-out agreement
  • Consider if a restrictive covenant is necessary e.g. employees who want to work for a competitor or if there is confidential/sensitive information at risk.

If you would like to know more about this topic contact Rob Bryan Associates – 01462 732444 / rob@robertbryan.co.uk

PPE Regulations updated

In Employment law, health and safety, Uncategorized, workers on June 20, 2022 at 8:55 am

On April 6 the PPE regulations were updated to amend the old 1992 Regs. These regulations extend the employer’s and employee’s duties in relation to the use and provision of personal protective equipment to other workers who may be engaged on a less formal basis such as casual or occasional workers.

All businesses must carry out a risk assessment in relation to all their activities and determine if harm can occur to employees, visitors, contractors, or members of the public.

Control measures are then implemented to minimise risk as far as practically possible. PPE is an important control measure. PPE will be the last line of protection where all other practical measures have been taken but risk of harm still remains.

Rather than PPE being “available”. PPE users should be aware of why PPE is used and any particular hazard they may have been exposed to and what “signs” or ill effects they should look for.

If you have further questions contact Rob Bryan Associates – 01462 732444 / rob@robertbryan.co.uk

Recent Cases of Interest: Summer 2022

In absence, covid-19, Employment law, Equality, family, health and safety, maternity on June 16, 2022 at 10:58 am

Employee who refused to attend work because of concerns about coronavirus was fairly dismissed

In one of the first cases concerning a covid-related dismissal to be heard by the Employment Appeal Tribunal (EAT), Rodgers v Leeds Laser Cutting, it was ruled that the employer acted fairly in dismissing the employee.

Rodgers started work with Leeds laser Cutting as a laser operator in June 2019. He carried out his work in a large open factory, with usually 5 people in total on the shop floor.

The day after the national lockdown started on 23rd March 2020, the employer sent out a communication to all its employees stating that the business would remain open and Covid safety measures would be observed.

A risk assessment exercise had already been carried out just prior to the lockdown by an external firm of specialists and they had recommended that measures including social distancing, wiping down surfaces and the staggering break times should be put in place.

On 25th March, Rodgers developed a cough, which he claimed was due to dust. He worked normally up until the end of his shift on 27th March, and on 29th March he sent an email to his boss stating that he would not be returning to work until the lockdown had eased. He said this was because he had a vulnerable child at home along with another young baby, and he did not want to put them at risk of catching Covid. He then submitted an NHS self-isolation note covering him for the period from 28th March until 3rd April. His boss replied to the email saying, “ok mate, look after yourselves”.

There was then no further contact between the parties until 24th April, when Rodgers sent a text to his boss saying that he had been told that he had been “sacked for self-isolating”. He also requested that the effective date his employment had ended, and the reason be put in writing to him, along with his P45.

On 24th April, Rodgers received his P45 from the Company and although there had been no other communication, the employer subsequently accepted that this act had confirmed the dismissal.

Rodgers then submitted a claim to the Employment Tribunal stating that he had been automatically unfairly dismissed for refusing to return to the workplace due to a serious and imminent danger, namely Covid-19. However, following a hearing on 29th January 2021, the tribunal dismissed his claim concluding that Rodgers did not believe there was a serious and imminent danger in the workplace, but in the world in general. It also concluded that Leeds Laser Cutting had taken reasonable steps to reduce the risk of infection in the workplace.

Rodgers then appealed this decision questioning whether the tribunal had made an error in concluding that Rodgers’ belief was one of a serious and imminent danger in general rather than in the workplace itself. Following the appeal hearing on 12 April 2022, the EAT dismissed his appeal.

RBA Comment:

In this case the EAT endorsed the tribunal’s view that the employer had taken reasonable steps to try and avoid the transmission of Covid within the workplace and that a belief of danger by an employee would not be enough to create liability on the part of an employer.

Employee found to be victim of harassment because of having to express breast milk in ‘dirty’ toilet

In the case of Mellor v Mirfield Free Grammar School, the claimant was employed as a teacher at the school. In September 2019, Mellor informed the school that she was pregnant. On 16th March 2020, prior to taking her maternity leave, she wrote to the principle with a flexible working request and asked for access to a room to allow her to express when she returned to work.

Mellor’s child was born on 19th April 2020, and her flexible working request was granted on 21st May 2020.

In June 2020, prior to her return to work, Mellor wrote to the school to finalise details for her return and stated that it was important to make the school aware that she would still be breastfeeding when she returns to work and that she may need a room to express in, although she did not plan to feed her child at lunchtimes from September.

In early July 2020, Mellor had a discussion with her line manager about her return to work in September, during which she was told that breastfeeding her baby at school would be impossible as her partner would not be allowed to bring the child onto the school premises due to Covid restrictions.

Mellor informed the tribunal that following her return to work in September 2020, she made numerous requests to her boss to have a room made available to her so that she could express and that she was suffering pain through not being able to do so. The school countered this by saying that there were many empty rooms available throughout the school which Mellor could have used. However, the tribunal dismissed this on the grounds that it was not reasonable to expect Mellor just to wander into an empty room at random, especially during the pandemic.

Following a short period of sickness absence and several other requests from Mellor for a room to be made available for her, no further action was taken by the school. This resulted in her stating that from that point onwards she used the toilets or her car daily, at lunchtime, to express. She went on to say that she wasn’t allowed any time to express, and that she was forced to do it during her lunch break whilst eating her lunch at the same time. She added that she found it disgusting to have to eat her lunch in toilets, which were often dirty.

The tribunal judge summarised the situation by saying that Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and that she had made the school aware on numerous occasions, but nowhere was provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” the judge explained. “It is obvious that this is unacceptable.”

“In our judgement, the conduct did have the effect of creating a degrading or humiliating environment for the claimant,” the judge said. “We are aware of the seriousness of these words, but in our view a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.”

RBA Comment

To avoid the possibility of similar claims, employers need to ensure that suitable facilities are made available at work for new parents. Discussions should take place with breastfeeding employees to determine their needs and suitable arrangements should be put in place to ensure that women who need to express milk can do so in a suitable, clean and private location. 

Managing Covid guidance in the workplace

In absence, business principles, covid-19, Employment law, government, health and safety on March 21, 2022 at 11:46 am

The government has removed the legally mandatory requirement for people in England with Covid to self-isolate. The legislation was removed with guidance taking its place from 24 February.

Following this announcement rates of infection across the whole of the UK have dramatically risen. For employers, working with guidance is potentially more difficult. Many questions arise in relation to how a business can protect itself, how to manage sickness absence and related pay, what testing should take place and how risks should be managed.

Not all workplaces are the same. Employers are advised to consider their own risk assessments, and this will mean assessing the spread of a contagious disease, the dangers arising and the potential consequence for anyone exposed to the risk, such as employees, customers or contractors. Although the word advised is used, all employers have legal obligations to carry out risk assessment in relation to all of their business activities. Specific separate guidance applies to employers in health care settings.

Guidance (see link to Gov.uk)

Guidance in relation to self-isolation for the first 5 days states that employees should remain away from work. The guidance also advocates testing and managing the risk of returning to the workplace from days 5 to 10.

Sick Pay

On 24 March, entitlement to statutory sick pay will revert to the pre-pandemic rules. This means statutory sick pay is payable on day 4 of absence and will require an employee to actually be sick or incapacitated from work, rather than “affected by Covid”. So SSP will no longer cover for isolation in the home for looking after someone who is isolating.

Testing

Without a regime of free testing, identifying sources of potential infection will rely on self-reported symptoms. For some there are no symptoms. For any business identifying a critical need for preventing workplace contagion, testing will need to continue. From 1 April free tests are expected to be withdrawn.

The combination of removing an incentive to remain away from the workplace and the means of identifying potential spread makes managing this situation harder. For businesses impact assessments highlighting critical delivery of services, general workplace safety or the protection of vulnerable people, management of this issue will be of vital importance.

Where a business can justify testing and the enforcement of isolation, nothing in the government’s announcement changes or interferes with the employer’s ability to manage its workplace and workforce. Mandatory testing for employees may be justified and indeed essential. Some employers are contemplating amendments to their sickness and absence policies to pay sick pay in support of effectively monitoring and managing the business risks.

Special situations

Some employees will have concerns for their personal welfare. This may be an underlying medical condition, a fear of working in close proximity to others, travelling in crowded spaces and perhaps concerns of passing Covid to other vulnerable members of their family or household. The government’s announcement, together with “living with Covid” and returning to normal, will have an adverse impact on some employees. The ongoing advice for employers remains discussing specific arrangements with individuals and identifying, where possible, practical alternatives to office space working or rush-hour travelling.

In summary we suggest:

1. Making an updated and current assessment of COVID infection risk within your workplace activities and those people impacted by your work

2. Communicate the measures you have and are going to put in place along with any options for alternative working arrangements, potentially with a review date

3. Consider how COVID-related sickness absence will be treated together with any company sick pay support and options for alternative working and communicate

*the changes from 24 March do not affect Wales or Scotland, you may have to consider separate approaches across your business in these areas.

Repeal of vaccination as a condition of employment

In business principles, contracts, covid-19, Employment law, government, health and safety, Uncategorized on March 7, 2022 at 1:29 pm

The Government is proceeding with revoking vaccination as a condition of deployment (VCOD) in all health and social care settings.

The regulations revoking VCOD in all health and social care settings will come into force on 15 March 2022.

The Government is still strongly encouraging social care staff to take the vaccine.

The operational guidance, Covid-19 Vaccination of People Working or Deployed in Care Homes applies to regulated activity in a care home, i.e., the provision of accommodation together with nursing or personal care, and all professionals and tradespeople who enter these settings, now reflects this decision.

The Government’s response stated: “In light of this latest scientific evidence and having considered the views received as part of the consultation, as well as an analysis of equalities impacts the Government will bring forward regulations to revoke vaccination as a condition of deployment.

“The regulations will revoke the requirements that CQC registered persons only permit those who are vaccinated against Covid-19, unless otherwise exempt, to be deployed for the provision of a CQC-regulated activity in health and/or social care, and to enter CQC registered care home premises.”

Spring Newsletter 2022

In business principles, contracts, Employment law, government, health and safety, holiday, pay, Uncategorized, workers on February 28, 2022 at 11:04 am

Our latest newsletter brings you news and views from our HR experts on:

  • The Employment Bill
  • Setting Business Goals
  • Employment Status
  • Right to Work Checks
  • The Jubilee Bank Holiday
  • Updates to national insurance and statutory rates
  • Recent cases of interest

Join our mailing list

The Employment Bill

In business principles, contracts, Employment law, Equality, government, pay, workers on February 16, 2022 at 1:05 pm
gavel with keyboard in background. Text read 2022

The Government first proposed an Employment Bill in 2019.  However, it has not yet progressed; this may occur in 2022. The following changes are expected to be included in the Bill: 

  • A new single enforcement body to enforce breaches in relation to national minimum wage, modern slavery, employment agencies, statutory sick pay and holiday pay for vulnerable workers. It will have new powers to tackle non-compliance, including civil penalties of up to 20,000 GBP per worker for the breaches under the Gangmasters Licensing and Employment Agency Standards regimes.   
  • Workers to receive their tips in full.  The government announced in September 2021 that the new legislation, which will be supported by a code of practice on fair and transparent distribution of gratuities, will require all employers to pass on tips without any deductions.  
  • A new right for workers (including those on zero hours contracts and agency workers) to request a more predictable contract after 26 weeks’ continuous service.  This is intended to provide more certainty about the number of hours or days they will be required to work. 
  • Extending redundancy protections for pregnant workers and those on maternity leave and other forms of family leave by extending the period of protection to apply from the point the employee informs the employer that the employee is pregnant to six months after the end of the family leave period.
  • A new right to additional neonatal leave which would grant parents of babies who are born prematurely or who are admitted to hospital in their first four weeks to up to 12 weeks’ paid time off (one week of leave for each week spent in neonatal care).
  • A new right to one week’s unpaid leave for unpaid carers.  According to the government’s consultation published in September 2021, this will be a day one right for all workers which can be taken as a block of one week or as individual days, taken for caring purposes such as personal and practical support, financial matters, personal or medical care. 
  • Making the right to request flexible working arrangements a day one right by removing the requirement to have 26 weeks’ service before a request can be made. 

The government has previously announced it will place a duty on employers to prevent discrimination in the workplace and will reintroduce protections for employees who suffer discrimination or are harassed by customers and clients.  

Whilst the above is not an exhaustive list, it should help you to remain aware of the key HR topics that will impact employment this year. We will be providing more details on these topics together with the changes that will be required for contracts and handbooks.  

Recent Cases of Interest: Spring 2022

In business principles, contracts, Employment law, Equality, pay on February 16, 2022 at 1:05 pm

Worker allowed to claim back pay for untaken annual leave 

In yet another case involving Pimlico Plumbers, the Court of Appeal has overturned a previous judgement from the Employment Appeal Tribunal and ruled that workers can only lose the right to roll over paid statutory holiday if their employer has been open about their entitlement and encouraged them to take the holiday.  

This case was brought by a worker by the name of Gary Smith who started working for Pimlico Plumbers in 2005. From the outset, Pimlico Plumbers maintained that Smith was a self-employed contractor and was therefore not entitled to paid holiday. Smith initially accepted this situation and decided to take periods of unpaid leave throughout his time with the firm.  

However, in 2011 Smith raised a claim with the Employment Tribunal arguing that he was at least a worker, which would have entitled him to paid holiday, and he sought to claim back pay for the periods of unpaid leave he had taken.  

Smith’s claim eventually went all the way to the Supreme Court which ruled that he was indeed a worker and was therefore entitled to paid holiday. The case was then referred back to the Employment Tribunal who decided that Smith’s claims for unpaid leave were out of time. This judgement was then appealed and the Employment Appeal Tribunal upheld the decision saying that Smith could not claim for leave that was taken but unpaid, only for unpaid leave not taken.  

Finally, the Court of Appeal found that not only was Smith “denied the opportunity to exercise the right to paid annual leave” but he was also entitled to claim back pay for the unpaid leave he had taken. 

RBA comment: 

The Smith case highlights the importance of clearly establishing the employment relationship between workers and the employer. The employer in Pimlico attempted to have control over the workers without the liabilities associated with employment. The working practice was very different from the contract wording. The plumbers were powerless to negotiate terms with employment rights. 

The employment status was determined by the courts. Smith was not an employee but being a worker was sufficient for him to have the rights under the working time directive and this included paid holiday. Paid holiday at the minimum rate 5.6 weeks per year equates to 12.07% of pay.  

The court of appeal had to consider if Smith had lost his right to take holiday due to a time limit. The CA decided that it was impossible to lose a right to holiday pay if you didn’t know you had it! 

In the video below Rob explains the difference in employment status and how that applies for your business:

View Video

Pilot dismissed after claims he slept during a flight 

In the case of Lawson v Virgin Atlantic Airways, the airline admitted to the tribunal from the outset that the dismissal had been unfair due to the procedure that was followed. However, they also maintained that there were capability issues with Lawson. 

Lawson commenced employment with Virgin in 1998, and throughout his employment he had passed many simulator and other flying tests. He had regularly flown long-haul flights on which there were 3 pilots, a captain and two flight officers. During such flights, the pilots took it in turns to take rest periods, with two of them remaining on the flight deck at any one time. 

During an 11-hour flight to Hong Kong in 2015, difficulties arose because Captain Lawson’s two flight officers became ill. Rather than making an unscheduled landing somewhere in Russia, he decided to continue flying alone to his destination, where he successfully landed the aircraft. 

An internal investigation subsequently took place into Lawson’s actions during which he was interviewed and said he felt shocked to be asked whether he had taken 40 winks during the flight. The final investigation report made no formal criticism of his handling of the flight and at a later debrief meeting he was not told he had done anything wrong, so he continued flying. 

However, some months after this, Lawson failed two further flight simulation tests. After failing the first test he was removed from active operations and was given one day’s training before completing the second test, which he also failed. 

A formal training review was then set up, but Lawson was informed by his internal staff association that if he attended the review meeting he would be dismissed. They also advised him that his options were either for him to resign and they would negotiate a severance package for him, or he could take the matter to an employment tribunal. The staff association then started to negotiate a leaving package with the airline. 

Shortly after this Lawson was signed off ill and was off work for almost a year. During this time, he had not been informed of the outcome of the training review and neither had there been any discussion with the company about a possible return to work. Lawson therefore sought advice from the Professional Pilots Union who advised him to lodge a formal grievance over the matter. 

On the same day that he lodged his written grievance, he received a letter from the HR department inviting him to a meeting to discuss the outcome of the training review. Lawson subsequently attended the meeting during which the report was read out and concluded that to provide him with further training would be unlikely to achieve success. Virgin then offered Lawson a settlement package which he turned down. 

Following this meeting, Lawson received a letter confirming that he had been dismissed. He appealed against his dismissal and whilst both his appeal and grievance hearings were held, both were rejected. 

At the Employment Tribunal, the airline put forward the case that there had been concerns about Lawson’s performance over a long period of time, although there was no documentary evidence to support these claims. The tribunal therefore ruled that the dismissal was “substantively unfair, as well as (as admitted) procedurally unfair”. Although Lawson was seeking reinstatement, instead they awarded him £90,312 by way of compensation.  

RBA comment: 

This case once again demonstrates the need for employers to follow a fair and transparent procedure when addressing performance issues. Failure to follow such a procedure is likely to render any dismissal unfair, irrespective of the nature or severity of the conduct or performance being dealt with. Reviews should be documented and shared promptly with any shortcomings identified. Training needs should be explained and properly supported. 


Employee dismissed for raising frivolous grievances 

In the case of Hope v British Medical Association, the issue was whether the employer had acted reasonably in summarily dismissing the employee because of what they considered was his repeated misuse of their grievance procedure. 

Hope had raised a number of grievances, some of which were minor complaints about managers and others were about the responses he received to his grievances. He refused to escalate the grievances to the formal stages of the procedure, but at the same time would not withdraw them. He was warned that if his behaviour persisted, he may face disciplinary proceedings and again he complained that such action amounted to an abuse of procedure. 

In an effort to resolve the situation, a formal grievance hearing was arranged but Hope declined to attend. The BMA therefore decided to go ahead with the hearing in his absence and it was determined that his complaints were frivolous and vexatious. Furthermore, it was concluded that his refusal to attend the meeting was an abuse of process and disciplinary proceedings were therefore subsequently initiated.  

Following the disciplinary hearing, it was decided that Hope’s behaviour constituted gross misconduct and he was summarily dismissed. Hope later raised a claim with the Employment Tribunal that he had been unfairly dismissed. 

The Employment Tribunal found that the BMA had acted reasonably in the circumstances and that Hope’s dismissal had been fair. They concluded that his numerous grievances had been frivolous and vexatious, he had refused to deal with these complaints in accordance with the recognised grievance policy, and that he had refused to comply with a reasonable management instruction to attend the hearing itself. As a result, his behaviour had led to a fundamental breakdown in the working relationship. 

Hope appealed against the decision on the basis that the tribunal had failed to consider whether his conduct had constituted gross misconduct. The Employment Appeal Tribunal dismissed Hope’s appeal on the basis that they considered the BMA had acted reasonably in all the circumstances.  

RBA comment:   

This decision demonstrates that an employer is entitled to take action against an employee who behaves in a way that abuses the grievance procedure and, through doing so, seriously damages the working relationship. However, under normal circumstances, employers need to be wary of initiating disciplinary proceedings against an employee who has raised a complaint, particularly any complaint which could be a public interest disclosure.