Employment law SOS

4 mins read

Tracey Marsden of Nabarro, on a drunken punch-up and the rights and wrongs of a change of contract

One of my employees was drunk at a recent corporate event and got involved in a fight. We dismissed him immediately for gross misconduct, but he has taken the case to an industrial tribunal. Does he have a defence?

Gross misconduct is bad behaviour considered so serious that immediate dismissal is justifiable. Physical violence will usually be considered serious enough to warrant summary dismissal depending on the circumstances. Whether or not the employee has a defence to the allegations will depend on how involved he was in the incident. Did he start it? Was he acting in self-defence? How drunk was he? Was he provoked? Although the incident took place outside of the workplace, it is still likely to be considered to be work related as it occurred at a corporate event and therefore this will not give him a defence.

A tribunal will consider the character of the conduct, and whether it was reasonable for the employer to regard that conduct as gross misconduct on the facts of the case. Even in gross misconduct cases, there may be mitigating factors which suggest that dismissal is not reasonable. Long service and previous good conduct are factors that may be relevant when deciding whether dismissal was the appropriate sanction. It is important to note that a dismissal will not necessarily be fair just because the misconduct in question is listed in an employer's disciplinary policy as worthy of dismissal.

A tribunal will also consider whether the employer followed a fair procedure in bringing the employment to an end. Were the allegations set out in writing? Was there a fair investigation? Was the employee invited to a disciplinary hearing and did he have the opportunity to put forward his version of events before he was dismissed? Was he accompanied? Was he given the right to appeal? If he was dismissed on the spot, the dismissal will almost certainly be unfair, although he will only be able to bring a claim of unfair dismissal if he has 2 years' service.

My employer is trying to change my contract of employment and I don’t agree with the new terms. I’ve told them, but they are insisting. What are my options?

An employer cannot unilaterally change your terms and conditions of employment, unless the contract allows the change in question to be made. Your express or implied agreement will be needed; otherwise the employer will be acting in breach of contract and the original terms of the contract will remain in place.

If your employer goes ahead and changes your contract without your consent you can respond in the following ways:

work under the new terms under protest, raise a grievance and, if that does not resolve matters, bring a claim for breach of contract;

if the breach of contract is fundamental, going to the root of the contract, you could resign and bring a claim for constructive dismissal, although you should think very carefully before taking this step as you will effectively be putting yourself out of work;

refuse to work under the new terms. However, this will only be possible if the new terms affect your day-to-day working arrangements (such as job duties and working hours) as opposed to matters which are firmly in the employer's control, such as pay.

You may choose to work under the new terms but make clear that you are not accepting the change. As long as you do this you will not be found to have impliedly agreed to it, provided the circumstances (including the passage of time) do not suggest that you have subsequently accepted the new terms. It is therefore important to act promptly by raising a grievance and/or bringing a claim.

If the changes are fundamental to the employer, and you refuse to agree to them, it may decide to go down the route of dismissing you and offering you re-engagement on the new terms. This would not amount to a breach of contract if proper notice of termination were given, but the dismissal may be unfair if the employer does not have sound business reasons for the changes and/or has failed to consult with you or your representative about the changes proposed. This is usually a last resort for employers, but can be an effective weapon to get employees onto new terms where there are sound business reasons for making the changes.

60 second guide to age discrimination

Age is a "protected characteristic" under law and as such direct and indirect discrimination because of age is prohibited.

Victimisation against employees who have taken action is also prohibited.

Unlike unfair dismissal, there is no service requirement for a claim to be brought.

Job applicants and those under a contract of employment, a contract of apprenticeship or a contract personally are protected.

Direct discrimination involves treating a job applicant or employee less favourably than others in a different age group, because of age.

An employee claiming direct age discrimination will need to show that they have been treated less favourably than a real or hypothetical individual in similar circumstances.

Indirect discrimination occurs when a provision, criterion or practice (PCP) is applied to all, but disadvantages job applicants or employees of a particular age group.

Both direct and indirect age discrimination can potentially be justified if the treatment or the PCP is a proportionate means of achieving a legitimate aim. Proportionality involves a "balancing exercise" between the importance of the legitimate aim pursued and the extent of the discriminatory effect.

To justify direct discrimination on the grounds of age, an employer needs to be able to show that the legitimate aim meets a social or employment policy aim, not just the employer's private interests. This makes it much harder in practice for an employer to succeed in a defending a direct age discrimination case than in a claim for indirect age discrimination.

In indirect discrimination cases, the employer's legitimate aim must simply amount to a "real business need". There is no requirement that it has any wider public interest or social policy aims.

It is important to note that there is no maximum compensation limit for an age discrimination claim. Compensation can (depending on the circumstances) be considerable.