Employers can sack staff facing charges ‘but must follow rules’
Wednesday 22nd July 2009, 2:29PM BST.
AN EMPLOYER can still dismiss an employee awaiting trial if they have a reasonable belief they have committed an offence, according to a top employment lawyer.
The expert’s comments followed a tribunal that found Vuyswa Yoli, a staff nurse who tried to help con a bank out of $45m., was unfairly sacked by Health and Social Services. The panel reduced the maximum compensation level of six months’ pay by a quarter and awarded her £14,380.
The department dismissed Mrs Yoli before she was convicted after the police told its human resources department that she had been arrested on suspicion of being involved in a serious fraud.
But AO Hall partner Louise Hall (pictured) said while it might look as though the judgment tied an employer’s hands, that was not the case.
‘Where the employee has been charged but is still awaiting trial, an employer can still dismiss the employee but needs to have formed a reasonable belief that the employee committed the offence.
‘That belief has to have been formed on reasonable grounds, which requires a proper investigation and due consideration before reaching the decision.’
She said the panel’s conclusion in the Yoli case – that a reasonable employer would have taken a more measured, considered and balanced approach to the dismissal – suggested that the sacking was poorly handled, which rendered the decision to dismiss Mrs Yoli unfair.
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Surely everyone is innocent until proven guilty ?
Health and Social Services should have suspended this lady on full pay until the outcome of the trial was known. It would have been a lot cheaper than the £14k they’ve now had to pay out and it would have also been a lot more professional.
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This from a body that employs a small army of HR employees.
Clearly an area where savings can be found.
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More professional, maybe. But not cheaper. According to the Press she was arrested on 26 November, dismissed on 30 November but did not come up for trial until 21 April. Why should employers have to keep jobs open and pay salary if somebody is on remand for that length of time?
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I completely agree with employee protection legislation however this is a ludicrous ruling. Although I accept it abides by the letter of the law and as Bert writes, HSSD should have acted more professionally, it certainly doesn’t abide by the spirit of the law in my view.
Although HSSD didn’t follow the procedures to the letter, the fact was the lady was found guilty of fraud and would have been dismissed should have been taken into acount. Now, if she had been found not guilty, she should have received compensation, or better still her old job back – if she wanted it that is.
As it stands, the Guernsey taxpayer now has to fork out £14,000 to a convicted fraudster because she was sacked after committing an offence. I hope HSSD appeal and win – then learn to follow procedures better next time.
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Well said Paul
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Eminent lawyer says.
“but needs to have formed a reasonable belief that the employee committed the offence”
That’s strange advice. It’s not for an employer to form any belief, that’s the job of the courts. What is important to an employer is whether an employee can fulfill their contract and is available for work. If you are on remand, then, I would have thought that you couldn’t and are therefore dismissable. Clearly not anymore.
I will be adding next to the sick leave clause in our contracts ‘remand leave’ for all future employees.
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Paul le P
If you were to have been discovered fighting with someone at work and sacked because of this, you might well feel brassed off if the employer hadn’t bothered to investigate the maatter and to find out what was the cause of the fight, and that it was not your fault.
This basic right that the employer applies to all. That is what the Tribunal were saying.
You might not like that protection but may others would. Or perhaps you now would?
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Mr Inder
I assume your post is tongue in cheek.
If not, then I would advise you to contact an employment lawyer ASAP. It might save your company a lot of money in the future.
Sadly. tribunals are kept busy with “man in the street attitudes” rather than following the legal route, something that costs a lot when things go wrong.
You play the game or feel the pain.
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Hi Stephen, no need for formality, it’s Neil please and the final para was tongue in cheek.
Hopefully HSSD will have the gumption to appeal this decision and sense will prevail.
Good luck HSSD!
All the best
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Stephen John – you have missed the point of my argument completely which is not against employee protection legislation at all. What I object to is the abuse of a law that was designed to protect employees from unfair treatment by their employers. I do not believe that the authorities that drafted these laws believed for one moment that they would be used to pay compensation to a criminal who was sacked for committing a crime.
Unfortunately, it appears from this case that the employment protection law has gone down the same route as the Human Rights / Health and Safety legislations. We live in a legal system that seems to have taken leave of its senses and completely forgotten the reason why these laws exist – to protect the innocent. Instead, they have being manipulated by clever lawyers and bureaucrats who seem incapable of any degree of lateral thinking, resulting in a situation where the guilty are “compensated” because some paperwork wasn’t in order.
This ridiculous situation has been allowed to happen because too many people prefer to hide behind the letter of the law rather than adopting a common sense approach that involves some thought. This kind of “technicality” based law practice is what has made the American legal system such a laughing stock, with the British and Guernsey systems rapidly following suit.
Take this case – the law has been interpreted literally rather than allowing common sense and the spirit of the law to prevail. So, although the HSSD should have followed procedure – and should be strongly reprimanded for not doing so, ultimately they were proved correct. However, as a result of a “technicality” based ruling that completely avoids common sense and wisdom, we are left with a sitaution where our taxes are being used to pay compensation to a criminal who was dismissed from employment for committing a serious crime – and only because some twit in HR didn’t follow the correct procedure.
If you can convince me that the law was designed to be applied in such a manner, fair enough. Personally I think the law has been abused and that a rethink of the manner in which legislation is applied is very necessary.
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Stephen John – after giving this some more thought – and after a conversation with my wife who is far wiser than I in these matters, I think you have a point.
Although there is a sour taste of injustice that public money is being used to compensate a criminal, this is probably one of those times where, in order to protect the innocent in future by maintaining the fundemental right of everyone to be “innocent until proven guilty” this ruling was necessary.
I’m not so proud as to not admit when I’m wrong. I guess this just proves that human laws will never get it right all the time!
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Paul Le P
You are right to be angry about the taxpayer forking out money because some daft twit or twits at HSSD didn’t do their job properly.
There can be no excuse for the failure of HSSD to follow the correct procedures. They are simple to follow and keep you out of trouble.
Even iof the HSSD staff were as incompetent as they appear they could have had free advice from the Industrial Relations staff at Commerce and Employment, staff very well experienced, and willing to give advice. All for the cost of a phone call.
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Paul Le P is right when he says the employment laws (and human rights laws) are abused and used by the ‘guilty’ to get compensation. Most employment cases rarely get as far as a tribunal as employers are forced to settle rather then go through a process which is slanted hugely in favour of the employee. If commonsense was used then most cases brought by employees would fail.
How is it an employee can give say a months notice under their contract and leave a job but an employer can’t give an employee a months notice in accordance with their contract without the possibility of being taken to a tribunal? Employment laws, human rights laws and health and safety laws fail due to the incompetence of courts, tribunals etc to use commonsense, their inability to understand the real world and their inability to interpret laws correctly.
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Stephen John – absolutely right! At the risk of sounding vindictive, heads should roll at the HSSD HR department – with the correct disciplinary procedures followed of course!
On to this particular case, although the panel was legally correct to rule unfair dismissal due to the presumption of “guilty until proved innocent” – given the perculiar facts of this case there should have been an even greater reduction in the level of compensation – I was thinking along the lines of £0 compensation being a fair figure. It galls me to think of public money that should be spent saving lives is being used instead to compensate this lady who, if correct procedures were followed, would have been dismissed upon conviction.
Surely there should be some provision in the law where, should employees be arrested, they are suspended on full pay until trial: if found not guilty, they can return to work without any financial loss incurred (and if necessary the employer compensated for productivity loss); if found guilty, any salary paid during remand is recouped by the courts and returned to the employer?
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Would it not have been possible to stop this woman’s pay as she was absent from her place of work regardless of the reason?
there is an added complication as she is a registered nurse and her registration body would also need to rule on her ability to continue with her job.
I find the ‘That belief has to have been formed on reasonable grounds, which requires a proper investigation and due consideration before reaching the decision.’ statement to be meaningless in this situation – How would HSSD have been able to carry out a ‘proper investigation’ while the police were conducting theirs?
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I think this pay must be wrong unless the nurse in question was a senior ward sister or a junior matron as the pay scales just do not fit for a quarter of 6 months pay! I think it was reported she was a staff nurse so even on the top of the pay scale she would only have been earning about £26,500 not including her unsocial hours pay if she did them.
Nurses in Guernsey managed to negotiate a higher percentage pay rise over 3 years so will be a bit higher than the national pay. I don’t know whether this nurse’s pay is being lumped in with the approximately £5000 bonus she would have been entitled to after 2 years – sounds like it. She had only been working in the island a few months though before she was arrested, according to what has been reported in the press. She will probably lose her UK registration too as she now has a serious criminal conviction – not sure whether it will still make a difference in her home country though.
The laws seem to be stupid to continue paying people who are arrested and on remand but surely HR took advice on this? I hope that this person does not get a huge payout due to someone not following procedure – but i would not hold my breath. If she was a member of a union she is probably able to access good lawyers.
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Innocent until proven gulity.That is exactly right.HSSD,jumped the gun on this one,most likely on the back of bad advice from greedy lawyers.all they had to do was wait until her conviction went thru and then sack her.Surely, they know that by now,at least one would hope so.
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Bad management who didn’t know what they should have known. It’s as simple as that.
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