Posted in : HR Updates on 20 March 2014
Angela Schettino
Think People Consulting
Issues covered:

Angela Schettino writes:

The termination of the employment contract may come about in many ways, including in the form of a redundancy, as an end to a fixed term contract or as a result of a fundamental breach in the contract due to misconduct or capability. We know that in most cases the parting of ways is not something the employee will be immediately agreeable to (if ever), and therefore the process and procedures which lead up to any dismissal are often fraught with tension and emotion.

Objective and systematic processes and procedures are the foundations to any fair dismissal and we are guided on such things in Northern Ireland by the Statutory Procedures and the LRA Code of Practice. Employers are expected to investigate thoroughly (with a few exceptions) and act reasonably prior to all dismissals.

It is often the case law, rather than the Code of Practice, which provides the most useful insights into how the tribunals may view specific complexities. There have been some interesting developments in case law this year that require some consideration in how we approach dismissal. Whilst most are not NI cases they may still be persuasive to NI tribunals.

It is also important to note that the DEL Employment Law Reform Consultation for Northern Ireland may change the landscape further in the near future. We note the key areas for consideration below.

Firstly, and as a reminder, the five potentially fair reasons to terminate a contract of employment (now that Default Retirement has been removed) are;

  • Conduct
  • Capability (Performance or Ill Health)
  • Redundancy
  • A statutory requirement (which could prevent employment continuing)
  • Some other substantial reason

A number of cases last year have revisited the ‘reasonableness’ of employers’ actions and whether indeed a dismissal falls within the ‘band of reasonable responses’.

Misconduct Dismissal - Reasonable Response Test

One such notable case was Tayeh v Barchester Healthcare Ltd [2013] EWCA Civ 29 in which the claimant was dismissed from her job as a nurse in a care home by Barchester Healthcare Limited following two incidents, namely falsification of a record and the neglect of the patient after a fall. The employer deemed her actions to amount to Gross Misconduct and dismissed her. This case was ultimately heard by the Court of Appeal.

The Court of Appeal reviewed the meaning of ‘reasonable response’ and underlined in its conclusion that the role of a tribunal is simply to assess the reasonableness of the decision to dismiss against the objective standards of the hypothetical reasonable employer measured by reference to a band of reasonable responses. In short a tribunal must not substitute its own view for that of a reasonable employer.

The case is a reminder that employers are entitled to take a view on what they consider to be Gross Misconduct, even when this view may be considered to be at the ‘harsh’ end of the reasonable spectrum.

It is advisable for employers to revise their Disciplinary policies particularly around Misconduct descriptions in order to make it clearly understood which types of conduct will be considered Gross Misconduct and therefore risk potential dismissal. The case law highlights the importance of actively communicating these to employees to ensure understanding.

Capability Dismissal - Absence After Maternity Period

In the case of Lyons v DWP JobCentre Plus, an employee was dismissed for Ill Health Capability reasons, following a period of absence relating to post natal depression, occurring once the employee had returned after her maternity leave.

At Employment Appeals Tribunal (EAT), her claim for discrimination (unfavourable treatment for a pregnancy related illness) failed, as the illness occurred after the maternity period, and therefore the protected period under the Equality Act (applicable in G.B.). The claim for direct sex discrimination also failed.

Following the ECJ case of Brown v Rentokil, the EAT held that if a woman suffers a pregnancy-related illness which extends beyond the period of her maternity leave, the employer is entitled to take into account the period of absence after the maternity leave and compare that period with any period of sickness of a man.

Whilst this case relates directly to the question of ‘protected periods’ relating to pregnancy related ill health, it is another reminder that sensitive Ill Health Capability dismissal can be handled fairly and appropriately. This was also demonstrated in last year’s case of BS v Dundee City Council [2013] CSIH 91 in which an employee was dismissed for incapacity after 35 years' service when the employer was unable to establish a return date.

In all cases appropriate advice should be sought.


The LRA Code on Discipline (and Grievance) is very clear;

“When dealing with disciplinary cases, employers need to be aware of both the law on unfair dismissal and the statutory minimum procedures contained in the Employment (NI) Order 2003 for dismissing or taking disciplinary action against an employee.”


Any form of disciplinary hearing should be preceded by an investigation of the facts relating the case. The investigation will be completed by an officer/manager who will not go on to sit on any subsequent disciplinary hearing panel (unless this is not reasonably practicable).

It is important that employers investigate matters thoroughly and consider all evidence; new evidence coming to light at a late stage should be taken into account.

This point was the determining factor in the recent Irish case, ‘An Employee v An Employer [2013] IREAT UD1454/2011’ in which the Tribunal decided that the claimant’s misconduct did not warrant dismissal and the fault lay with the employer's investigation process and failure to revise their approach in the face of new evidence from the claimant.

The three step disciplinary procedure

The three Statutory steps in any dismissal process remain as follows:

  • Write to the employee notifying him/her of the allegations against him/her (cause for consideration of a dismissal) and invite them to a meeting to discuss the matter.
  • Inform the employee of the basis of the allegation (rationale) before holding the meeting to discuss this – at which the employee has the right to be accompanied by a colleague or trade union representative – and notify the employee of the decision.
  • Offer the employee the right of appeal.

It is worth noting that the three step minimum disciplinary process should be followed where any sanction is imposed, including a demotion.

In the event that a case is taken against an employer for unfair dismissal and the procedural steps have not been completed, the tribunal may find the dismissal automatically unfair. In addition, if the employee has failed to follow the procedure, i.e. attend meetings, or failed to raise an appeal, their compensation may be reduced by up to 50 per cent.

Right to be Accompanied

The LRA is consulting to revise the Code of Practice wording on the ‘right to be accompanied’ following the decision in Toal & Anor v GB Oils Ltd UKEAT/0569/12/LA , in which it was established that an employee’s choice of companion need not be ‘reasonable’ as long as the accompanying person is from one of the three acceptable groups, including a colleague, a TU official or an accredited TU representative. The proposed LRA rewording of the code reads as follows;

"Employers must agree to a worker’s request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements, for example choosing to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location."

Employment Law Reform NI

The Employment Law landscape in NI is subject to its widest review perhaps in a generation. The overall desire is to allow for a framework which continues to protect employee rights but at the same time provides greater flexibility and ease of process for employers. A number of the things under review will touch on our approach to Dismissal, particularly where there is potential for a tribunal claim, these include;

  • Early conciliation proposals
  • Proposals for neutral assessment of cases
  • A proposal to extend the unfair dismissal qualification period
  • Revised unfair dismissal compensation awards
  • Proposed changes to collective redundancy consultation periods
  • Revised compromise agreements and protected conversations

We will watch this space for the impact of the finalised reforms.

This article is correct at 21/10/2015

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Angela Schettino
Think People Consulting

The main content of this article was provided by Angela Schettino. Contact telephone number is 028 9031 0450 or email Angela.Schettino@thinkpeople.co.uk

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