Employment law

Dismissal procedure

Santamera v Express Cargo Forwarding (trading as IEC Ltd) (2003) The Times, 13 January

An employee was dismissed for bullying a number of her colleagues.

At no stage of the process of investigation did the employer give the employee an opportunity to cross-examine the complainants.

Furthermore, she was not given such an opportunity at the hearing.

Nevertheless, a tribunal held that the dismissal was fair.

The EAT rejected the employee's appeal.

There is no rule of law which renders it incumbent on an employer, when dismissing an employee for misconduct, to arrange a hearing which gives the employee the opportunity to cross-examine the person making the complaint.

However, the decision of the Northern Ireland Court of Appeal in Ulsterbus v Henderson [1989] IRLR 251, does not go so far as to establish a proposition that cross-examination of the complainant can never be necessary to achieve fairness.

The issue in cases invoking section 98(4) of the Employment Rights Act 1996 is always that of reasonableness.

There may be cases where, on the particular facts, it is impossible for an employer to act fairly if cross-examination of a particular witness is not permitted.

Minimum wage

Scottbridge Construction Ltd v Wright [2003] IRLR 21

The Court of Session has upheld the decision of the Employment Appeal Tribunal (EAT) in this case, reported at [2001] IRLR 589.

A night-watchman was entitled to the national minimum wage for all the 14 hours that he was required to be on his employers' premises each night and not only in respect of those hours when he was required to be awake for the purposes of performing specific tasks.

The 14 hours that the employee was required to be on his employer's premises were 'time work'.

This was not a case where the worker was not in fact working, but rather on call and waiting to work.

By Martin Edwards, Mace & Jones, Liverpool