Thursday, 23 June 2011

New Redundancy Notification Clarification

New redundancy law

The EAT has handed down a new judgment ,'Howard v Campbell's Caravans', involving notification to an employee that he will be retired after his 65th Birthday...

The Case involved the dismissal of an employee at the end of the week in which his 65th birthday fell, in accordance with a NRA of 65. It was said to be unfair and to constitute age discrimination because the employer had failed, in the manner of the prescribed retirement notification under Schedule 6 of the Employment Equality (Age) Regulations 1996. Specifically it was contented that the employer had failed to specify the retirement date in that the notification had merely said that he would be retired “after” his 65th birthday.

Mr Justice Underhill argued that it does not necessarily constitute a failure to comply with the requirement of the statutory retirement procedure that the employee must be notified of the intended date of his retirement.

It was held that the inclusion of the word “after” did not always mean “on a date later than” and that in context the notification should be read as stating an intention to retire him on his 65th birthday (it making no difference that he was in fact retired two days later)

On the employer’s alternative case that the notice constituted notification of retirement at the end of the week in which his birthday fell, by reference to the company handbook which made it clear that that was its practice, doubted whether that would have sufficed because the notification should not require reference to extraneous documents.

Friday, 10 June 2011

The Relevance of 'Burchill' to Capability

In the Edinburgh Appeal Tribunal an appeal against a finding of unfair dismissal was upheld in the case of D B Schenker Rail (UK) Ltd v Doolan Appeal No. UKEATS/0053/09/BI 13 April 2011

The ET had no basis for finding that the employers were not entitled to conclude, on expert evidence that the Claimant was fit to work - they had substituted their own view as to whether or not the Claimant should have been dismissed for that of the reasonable employer.

The dismissed man was a production manager suffering from stress and depression - a referral to an occupational psychologist was made - eventually he was dismissed on capability grounds.

The Tribunal accepted that the Respondent’s reason for dismissing the Claimant was capability (paragraph 175). A question arose as to whether it was a genuine reason and whether certain expert evidence should have been relied upon by the Respondents.

Para 33 sums up the correct approach when there is a question as to the sufficiency of the reason for dismissal:

'Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability - in this case. Accordingly the Tribunal required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.

The East Lindsay District Council case is often cited as authority for the proposition that an employer requires to ascertain the “true medical position” (Phillips J at paragraph 18) but we consider that that is not to be read as requiring a higher standard of enquiry than is required if the reason for the dismissal is misconduct. When paragraph 18 is read together with the preceding paragraph it would appear to go no further than to support the Burchell approach of requiring that a reasonable investigation into the matter be carried out, which makes sense.'