Monthly Archives

December 2015

Employee wins first payout in caste discrimination case.

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Employee wins first payout in caste discrimination case.

A woman has been awarded around £184,000 in what is considered to be the first caste discrimination case in the UK.

Permila Tirkey made a claim to a tribunal that her employer discriminated against her because of her “low caste” – she is a member of the Adivasi caste, described as the “servant caste” in Hindu society. The court heard that her employer, a family from Milton Keynes, brought her from India and made her work 18 hour days, seven days a week.  She slept on a foam mattress on the floor and was forbidden from calling her family.

Her original claim, had been for direct and indirect discrimination on the grounds of religion or belief, but her employer claimed that this should be dismissed because the Equality Act 2010 does not refer to caste.  But the EAT upheld the case, and sent the case back to tribunal, which found in her favour.

Council slated for recruitment fallings

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Council slated for recruitment fallings

An inquiry into a bin lorry crash that killed six people last December has found that Glasgow City Council’s recruitment process was inadequate.  Had the council arranged to have the driver’s medical records checked out, this would have raised concerns about his history of blackouts and dizziness, the inquiry ruled.

Harry Clarke was unconscious when he lost control of his bin lorry in Glasgow city centre, and it has now been revealed that he had lost consciousness in a stationary bus in an incident in 2010, when he worked for First Bus.

He had also been advised several years before not to drive an oil tanker because of bouts of dizziness.  Clarke had not revealed his previous health issues, the inquiry held.


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When can an employee be dismissed for Gross misconduct?

The simple answer is ‘Not very often’ as this is actually a very unusual and even rare occurrence!

Gross misconduct is basically an issue/action which goes to the heart of the contract and the employee cannot therefore be allowed back to work.

What is the different process for Gross Misconduct Dismissal and Contractual Dismissal?

  1. Gross Misconduct – Generally would need to be suspended on full pay whilst investigating then full process followed ie. Investigation, Invite to Disciplinary hearing, Disciplinary hearing and outcome letter with right of appeal. Dismissal will be without notice pay.
  2. Contractual Dismissal – This would occur when the employee has followed the warning process, generally Verbal warning, Written warning, Final written warning following by dismissal, with notice. Full process would also need following.

What Gross Misconduct isn’t:-

  • Repeated misconduct – as if it wasn’t deemed as Gross misconduct the first time then it is very unlikely to be Gross misconduct this time
  • Numerous issues adding up to Gross misconduct – Gross misconduct is generally one act rather than lots of misconducts adding up to wanting to dismiss as each misconduct should be dealt with on it’s own merits
  • AWOL, unacceptable levels of absence/lates etc will generally not be Gross misconduct

What Gross Misconduct can be:-

  • Theft
  • Physical Violence
  • Fraud
  • Under the influence of drugs/alcohol at work
  • Severe acts of negligence

There are others but they would need to be severe breaches of those issues eg. H & S, criminal offences, bringing company into disrepute etc.

You would also need to check your Contracts/Handbook to ensure that they are covered in there, in general.

However, even if you have, for example, ‘Swearing at a Manager’ in the Contracts, it doesn’t necessarily mean that you could carry out a ‘safe’ Gross misconduct dismissal, as a Tribunal would look at whether it would be ‘reasonable’ for an employer to dismiss for this.

The other misconception is that Summary Dismissal for Gross misconduct can be on the spot ‘You’re Fired’.  However, a full process needs to be followed in general (this can sometimes be amended slightly if under 2yrs service and the contract covers it).

If in doubt…..speak to your Advisor at Elcons on 01422 822842.






Dismissal upheld after contract leak

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A manager who complained he was unfairly dismissed has lost his legal claim. Andrew Collins, who worked for transport company Cabline, denied revealing confidential information about a £3 million contract to a potential competitor. He then made a claim for unfair dismissal, unfair deduction of wages and holiday pay last year.

Cabline claimed that Collins had breached its trust by sharing details of the potential business over a lunch meeting, but he argued that he knew nothing of the negotiations and that some details were already public. His claim for unfair dismissal was rejected, and the judge described his other claims as poorly founded, so they too were dismissed.

Cancer sufferer wins disability tribunal after redundancy

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An NHS Trust discriminated against an employee with cancer who was required to undergo a competitive interview process in a redeployment exercise, a tribunal was held.

Mr Waddingham, who had worked for the NHS in various roles since 1984, was informed in 2012 that his role was at risk of redundancy. During the redeployment exercise, employees needed to score 75 per cent or more to be considered for the new role. Shortly after Waddingham started treatment for throat cancer in early 2013, he applied for a vacant position at the Trust for which he had relevant experience. At the interview, he only scored 54 per cent, so was not appointed, and his employment was ended in March 2013.

He brought an employment tribunal claim for disability discrimination, claiming that he was unfavourably treated because of something that had arisen in consequence of his disability, contrary to the Equality Act 2010, and that the Trust had failed to make reasonable judgements.

He argued that he had been fatigued on a “cocktail of drugs”, and this had affected his concentration. The tribunal found that Waddingham was treated unfavourably because of his condition, and that requiring the claimant to undertake a competitive interview and to meet a required standard was not a proportionate means of achieving a legitimate aim. It suggested it might have been more reasonable to assess him for the role without a competitive interview, using evidence from his long service.

Age discrimination claims do not always centre on mistreatment

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An Employment Tribunal has demonstrated that age discrimination claims do not always centre on the mistreatment of older workers.

In Osborne and another V Gondhia and others, two sisters claimed that they were subject to aggressive behaviour and unfair treatment in their jobs at a service station on the grounds of their age (18 and 21).

They claimed that they were often the target of unjustified criticism in front of customers, and that they were accused of incorrectly labelling food (when it was in fact an older colleague who was responsible).

They won their claim, and the tribunal also upheld a sex discrimination claim, the crux of their complaints being that their treatment occurred because they were young and female.