Employment Cases Update

Parkview Care Ltd v Fenn UKEAT/0112/19/BA

Date published: 08/01/2020

Appeal against the ET’s findings that 5% was an appropriate assessment of the Respondent’s contribution to his dismissal, and that the Respondent was entitled to his normal hourly rate when “sleeping in”. Appeal allowed in part.

The Respondent faced disciplinary proceedings by the Appellants; he considered that the conduct of the disciplinary meeting was unfair, and brought a claim in the ET for constructive unfair dismissal. The ET found that the Respondent was treated unfairly, and that the hearing lacked the elementary requirements of natural justice; it concluded that 5% was a just and equitable deduction for the purposes of section 123(6) Employment Rights Act 1996, and it decided that the Respondent was entitled to his normal hourly rate when "sleeping in". The Appellants appealed on a number of grounds, including that, given the serious nature of the underlying conduct, 5% was a very low assessment of the Respondent's contribution to the dismissal, and that the ET had erred in deciding that the Respondent was entitled to his normal hourly rate when "sleeping in".

The EAT held that the ET had misunderstood the correct approach to contribution, such that the award of 5% did not take adequate account of the gravity of the Respondent's misconduct; having considered written submissions, it concluded that the Respondent's contribution should be set at 25%. Also, the EAT found, as a matter of contractual construction, that the Appellants had agreed to pay an "allowance" for time spent "sleeping in", rather than at the Respondent's normal hourly rate, and so this ground of appeal was upheld.

Read the full text of the judgment on BAILII or download the file by clicking the link below.