Christmas and the holiday season is a time where everyone wishes to take time off and spend it with their family and go through their annual traditions. However, for many businesses there is no time off. Several industries, such as hotels, care homes, etc. work as normal all over the Christmas period whereas other companies may have some employees on call instead. Indeed, in the case of White -v- Balfour Beatty CLG Limited (UD888/2013) the EAT had to consider the fairness of the employer’s decision to dismiss an employee after he had refused to work an on call shift on Christmas Day.
Christmas Roster
The employer in this case worked in gas fitting and was contracted by Bórd Gáis Éireann to provide services including emergency response call outs. In essence, should a member of the public report a gas leak the company was contractually required to respond to this emergency within 50 minutes. The employee in this case was a gas fitter who worked as a part of the emergency response team. This emergency response service is provided 24 hours a day 365 days per year and the company gave evidence that out of its annual 13,000 reports of gas every year, 5,000 of these had arisen during the out of hours period.
It was for these reasons that the employer was very organised in coordinating their out of hours roster. Indeed, in 2012 the employer had prepared their on call roster for the remainder of the year, including Christmas, in February, 10 months in advance. This roster required the claimant to cover the on call emergency response service from for a week commencing 21 December to 28 December, including Christmas Day.
Employee Refusal
On 17 December 2012, the employee told his supervisor that he would have difficulty in covering Christmas Eve and Christmas Day as he would be out of the area he was expected to cover and that if he had to work it then he would have to stay with his mother-in-law, which he had a personal difficulty with. In addition, the employee highlighted that he had arranged for a sub-contractor to cover his on call duty, someone the employer had utilised in the past for on call purposes.
The Operations Manager sent out a general text to other workers for volunteers to cover the shift but there were no replies. As such, the Contracts Manager informed the employee on 17 December 2012 that it was very late to raise this issue, especially given that the roster was prepared since February, and that he must fulfil his duties. In addition, the employer offered to book a hotel room for the employee and his family in the area in addition. The employee continued to refuse, however.
Disciplinary Process
An investigation meeting was held on 21 December 2012 and the employee was accompanied by the shop steward. At this meeting the importance of the employee working the shift was outlined in no uncertain terms and that if he failed to do so then it would amount to gross misconduct. The employee again refused to work the shift and did not provide any extenuating circumstances as to why he had to refuse. Indeed, the HR Manager stated that the employee seemed entirely indifferent to the seriousness of the matter, even when it was explained that gross misconduct could lead to dismissal. As such, the employee was suspended on pay and was notified that a disciplinary hearing would take place after Christmas. In the intervening period a number of other employees had to cover the on call roster.
The disciplinary hearing was conducted on 07 January 2013. This this meeting it was noted that the employee showed no remorse or contrition and as a result the employee was dismissed for gross misconduct. An appeal hearing was conducted on 23 January 2013 and the decision to dismiss was upheld.
EAT Decision
The EAT decision is worth considering in good detail. The Tribunal stated that “that in the particular circumstances of the dismissal it was fair. This is so because of the fact that the claimant was made aware in advance of his refusal to work his full rostered shift that such a failure could result in his dismissal. Further, this roster was set in February 2012 and it did not change in relation to the requirement for him to work the week of Christmas when there was an alteration in July. Therefore, he had very reasonable notice of the requirement to work this week.
Where the claimant was informed that the alternative cover that he had secured for the shift was not suitable, he should have fulfilled his basic contractual duty which was to work his reasonably rostered hours. There were no over-riding exceptional reasons as to why he did not do so, and in those circumstances, it was reasonable for the employer to terminate his employment.”
What Can We Learn?
Based on the EAT decision, there are a number of important points to note that would have stood in the employer’s favour in terms of reaching the decision to dismiss:
- The employer issued the roster well in advance meaning that employees could make necessary arrangements.
- When the employee requested not to work the shift, the employer did take steps to facilitate this, including contacting other members of staff.
- When no one could cover, the employer convened a meeting on 21 December to explain the seriousness of the situation during which they made it expressly clear that dismissal was a possibility.
- After the meeting of 21 December, the employee was suspended on full pay pending the outcome of the disciplinary process.
- The employee was accompanied by a shop steward and/or a trade union representative throughout.
- The employee was afforded a right to appeal.
Employers should seek advice from Peninsula Business Services if they have any questions in relation to disciplinary matters, especially those concerning potential gross misconduct. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.
