Disciplinary and grievance appeals Samuel Smith Old Brewery v Marshall and another
The employees (pub managers) raised a grievance in response to the brewery requiring them to reduce additional staffing hours. The grievance was not upheld and the employees appealed.
The employees refused to impose the reduction on their staff – the brewery held a disciplinary hearing and dismissed the employees.
The employees argued it was necessary to conclude the grievance procedure before starting disciplinary procedures.
The EAT held it was not necessary to conclude the entire grievance process before conducting the disciplinary hearing and therefore the dismissal was not unfair.
Constructive dismissal Munchkins Restaurant Ltd v Karmazyn and others
Four female waitresses alleged that throughout their employment at Munchkins Restaurant, Mr Moss, the controlling shareholder, made them wear short skirts and subjected them to talk of a sexual nature. The claimants had been employed for one – five years.
The women brought claims for sexual harassment and constructive dismissal.
On appeal it was argued that there were no grounds for constructive dismissal as the claimants had put up with the ‘intolerable’ behaviour for several years. The EAT commented that ‘putting up with it’ does not make it welcome, and upheld the award of £15,000 to each claimant, making Mr Moss and the company jointly and severably liable.
This case casts doubt on the principle that the employee must always act quickly in response to a breach or be taken to have affirmed the contract.
Sickness absence Rawlings v The Direct Garage Door Company Ltd
Mr Rawlings was employed by the Direct Garage Door Company (DGD). He was absent due to illness throughout 2004 and 2005, until 5 April 2006 when his employment was terminated.
DGD’s holiday year ran from 1 January to 31 December. In December 2004, Mr Rawlings informed DGD that he would like to take his statutory holiday from 2 December 2004 – 30 December 2004. DGD paid Mr Rawlings holiday pay.
In 2005, Mr Rawlings asked near the end of December where his holiday pay was, but did not seek to take any. Mr Rawlings made a claim for unlawful deduction from wages.
Mr Rawling’s claim succeeded, following the cases of Stringer and Pereda.
Tribunals may give effect to the right for those on sick leave to defer holiday/holiday pay.
Date of termination of employment Geys v Societe Generale, London Branch
Mr Geys was told by Societe Generale that he was summarily dismissed on 29 November 2007. Payment in lieu of notice was paid into his account on 18 December 2007, without Mr Geys’ knowledge. Termination was not deemed to have taken effect until 6 January 2008, when My Geys received a letter confirming he had been paid in lieu of notice.
The contract continued until the employer unequivocally communicated its decision to exercise its contractual right to summarily terminate by making a payment in lieu of notice.
Important for employers to make it clear that they are exercising their contractual right to pay in lieu of notice.