First Tuesday Q&A

The claimant was dismissed by reason of gross misconduct and in particular.

Can previous history be taken into account when dismissing someone for gross misconduct?

Posted in: First Tuesday Q&A NI on 01/04/2014 An employer may dismiss fairly for a first instance of gross misconduct. It is also possible to dismiss fairly where a less serious form of misconduct takes place, following previous warnings. In some cases it may be difficult to pinpoint whether behaviour amounts to gross misconduct and it will de...
This article is listed under the following topics:
Unfair Dismissal Disciplinary and Grievance Issues

When, if ever, it is appropriate for an employer to argue frustration of contract? For example if an employee is given a prison sentence of 3 or more years for an offence that is no way connected with their employment can an employer claim frustration rather than have to go through the statutory dismissal procedure using "some other substantial reason" as the potential reason for dismissal?

Posted in: First Tuesday Q&A NI on 01/10/2013 Case law confirms that a custodial sentence imposed on an employee is capable of frustrating the contract of employment but whether it does or not depends on the circumstances of the case with the length of the term to be served by the employee being a significant factor to be considered. Tribunals...
This article is listed under the following topics:
Unfair Dismissal Disciplinary and Grievance Issues Contracts of Employment

Can you dismiss an employee for breach of trust? How would a Tribunal see this?

Posted in: First Tuesday Q&A NI on 03/09/2013 Dismissing for breach of trust / trust and confidence is possible and falls into the category of dismissing for “some other substantial reason”. This type of dismissal should, however, be handled with caution as Tribunals are likely to look carefully at the surrounding circumstances to determine if...
This article is listed under the following topics:
Unfair Dismissal

An employee (on a permanent employment contract for past 2 years) has always worked on a 2 shift arrangement on Monday (7 hour shift) & Tuesday (7 hour shift) only each week since she commenced with the company.

The company, in order to cover its shift requirements for a two week period, now wants the employee to a) increase the number of shifts and b) for the employee to work days other than Monday and Tuesday. It is known that the employee works for another company (non-competing) for some other days each week.

There are other employees (both male and female) who work shift arrangements with the company and they generally work between 5 to 7 shifts per week and are available all days. The company wants to commence discussions with the employee to increase the number of shifts that she can undertake and also to be able to do additional shifts on days other than Monday and Tuesday.

a) What approach would you recommend?

b) What advice would you suggest if the employee refused to undertake the planned new arrangement?

c) Can the company go as far as to terminate the employment contract if the employee refused to co-operate?

Posted in: First Tuesday Q&A NI on 02/07/2013 When an employer considers making changes to an employee’s terms and conditions of employment, from a legal and practical perspective, obtaining the consent of the employee is the simplest option for employers. This will obviously not be a problem if the change is to the employee’s benefit but clea...
This article is listed under the following topics:
Unfair Dismissal Contracts of Employment

An employee does not wish to disclose her illness. 9 weeks of certificates stating, “unfit for work” have been received. Can a company doctor disclose the illness to the employer or can we insist on knowing the nature of the illness or move to dismissal or some other action?

Posted in: First Tuesday Q&A NI on 08/01/2013 Under the Access to Personal Files and Medical Reports (NI) Order 1991 (the Order) an employer cannot request a report from an employee’s own doctor without the employee’s consent, which should be recorded in writing. While referring an employee to a company doctor (which we assume to be the case h...

We dismissed a male employee a year ago for sending intimidating messages to a female employee. He has now posted a further offensive message on the same employee’s facebook page. At the time the employee left he signed a compromise agreement. What should we do following this female member of staff drawing this to our attention?

Posted in: First Tuesday Q&A NI on 06/11/2012 An employer has a duty of care towards its employees, but can this be extended to protection from beyond the employment? The Sex Discrimination Order 1976 (Amendment) Regulations (NI) 2008 amended the definition of harassment. The new provision makes an employer liable for third party harassment. I...
This article is listed under the following topics:
Unfair Dismissal Discrimination and Equality Policies and Procedures

In what circumstances will an employment tribunal accept covert monitoring as evidence?

Posted in: First Tuesday Q&A NI on 02/10/2012 This question raises a number of issues and we are not told if the monitoring footage is within the workplace or outside. The Industrial Tribunal does not have formal rules of evidence about the admissibility of evidence but, if a party to the proceedings wishes to rely on recordings in support of ...

Why is a thorough investigation important in disciplinary cases? Is it a legal requirement?

Posted in: First Tuesday Q&A NI on 04/09/2012 There is no statutory obligation to carry out an investigation before a disciplinary matter. However, it is the investigation process which will identify whether there are grounds to instigate disciplinary procedures. The Labour Relations Agency’s Code of Practice on Disciplinary and Grievance proc...
This article is listed under the following topics:
Unfair Dismissal Disciplinary and Grievance Issues

We employ seasonal ‘summer’ workers. If we employ them for successive summers are they covered by unfair dismissal legislation/expectation of summer work under custom and practice?

Posted in: First Tuesday Q&A NI on 07/08/2012 In order to have unfair dismissal rights, the seasonal 'summer' worker must qualify as an employee AND also be able to prove one year of continuous employment. As regards the expectation of summer work under custom and practice, employers should be aware of the GB Employment Appeal Tribunal case of...
This article is listed under the following topics:
Unfair Dismissal Contracts of Employment A-Typical Working Recruitment and Selection

May I dismiss an employee who has under one year’s service without going through the disciplinary procedure?

Posted in: First Tuesday Q&A NI on 05/06/2012 As a starting point, an employee normally requires 1 year’s service to bring a claim for unfair dismissal. However, there are occasions in which an employee can bring a claim for automatic unfair dismissal despite not having one year’s service. Some examples are, if the reason for the dismissal is ...
This article is listed under the following topics:
Unfair Dismissal Disciplinary and Grievance Issues