Day: March 21, 2019

INVESTIGATING MISCONDUCT – How important is a proper investigation after an allegation of misconduct at work?

Kuldeep S. Clair, our senior Consultant Solicitor in Employment Law and Civil Disputes offers his views: 

In employment cases, it is generally crucial for there to be a fair investigation before an employee is dismissed for an allegation of misconduct. All relevant evidence must be heard. The employer must show that he has not acted unreasonably, or for underhand motives when dismissing. The reason and evidence should be clear, or at least as clear as it is possible to be, in the circumstances.

A warning should generally also only be given after an investigation which is proportionate to the seriousness of the wrongdoing which is being alleged.

A recent case in the Employment Appeal Tribunal demonstrates how this is a soft, and case-by-case principle, last week, in the case of Beattie v Condorrat War Memorial & Social Club. The claimant employee had been dismissed after the employer took into account a previous written warning which had been given without a full detailed investigation. The claimant challenged the earlier warning as being unfair on procedural grounds. Part of those grounds was justified in principle.

The tribunal held that the dismissal was basically unfair, but that her damages ought to be reduced to zero, on the basis that the result would have virtually certainly been the same, even if a proper investigation had been carried out.

This is what is known to employment lawyers as a ‘Polkey reduction’ to the compensation. In this case, the reduction was by 100%. (It is possible for a reduction to be of any percentage that the tribunal believes is just.)

The Employment Appeal Tribunal also upheld the earlier tribunal’s decision of awarding no damages. It said that it was not appropriate in this case for the tribunal to start questioning the earlier decision of the employer to issue the warning. The tribunal should only be concerned with the decision in front of it unless it was obviously completely perverse. But in this case, the employee had accepted at least some responsibility for the offense for which she had received a warning.

Citing the above case probably makes a client little wiser about what to do in an individual situation. But it highlights the need for advice, based on fundamental principles, being tailored to the individual situation every time.

 

Kuldeep S. Clair

Consultant Solicitor

Employment, Dispute Resolution, and Litigation

Sterling Lawyers Limited

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EU National’s Children and British Passports

Since the June 2016 referendum, when most British voted for Brexit, EU nationals became concerned about protecting the interests of their children and started to look for options of securing a UK passport. Let’s get into more details.

According to the general rule, children born in the UK automatically acquire a British passport. However, depending on the date the child was born different rules might apply.

For instance, those children who were born in the UK from October 2000 to April 2006 must prove that one of their parents held permanent residence or indefinite leave to remain/enter at the moment they were born. Only, in that case, they will be able to get a British passport. Permanent residence card or a letter from the UK Visas and Immigration are enough evidence to be provided to the British immigration authorities. However, most parts of EU nationals did not apply for such documentation, mostly because of the lack of immigration law knowledge, so their children losses the right to obtain a British passport automatically. Such a pity, but due to non-acquaintance the parents will have to apply on behalf of their children and register them as British citizens.

 

Those, who were born after April 2006 can obtain British passport if they can prove that their parents were exercising Treaty Rights by residing in the UK for at least of 5 years before the child was born. EU parents who have not completed 5 years residence in the UK prior to giving birth will withdraw their children’s right to become British at birth. Nevertheless, this category of children will have a right to register as British citizens following the terms and conditions of the British Nationality Act 1981. It should be noted, that such application is rather high-priced and would cost nearly GBP 1000.

We often get lots of questions from the clients in the cases, where one child (usually the eldest one) was born outside the UK and the youngest – in the UK. In that case, the younger child will have two options: either to be British at birth or to register through automatic entitlement, which was described in the previous paragraph.

Holding British citizenship, you can always come back to the UK to live, study or work. As parents are highly concerned about their children education, you can get a British education, which is undoubtedly one of the most efficient in the world. Sure enough, British passport is one of the most beneficial nowadays and can be counted as a great investment into your child’s life providing lots of advantages and opportunities for a better future.