Veitch Penny LLP - Exeter | Crediton, Devon

Case

London Underground Ltd v Ferenc-Batchelor. Harding –v- London Underground Ltd
Employment Appeal Tribunal - (May 2003)

Issues

(1) Contract of employment
(2) Disciplinary procedure
(3) Right to be accompanied

Facts

Ms Ferenc-Batchelor and Mr Harding made complaints to the Employment Tribunal based upon an alleged failure by their employers to allow them the right to be accompanied at disciplinary hearings that could have resulted in “an informal oral warning”, as per section 10 of the Employment Relations Act 1999.

By way of background, the Act states that an employer must allow a worker to be accompanied by a companion where the worker:

(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and
(b) reasonably requests to be accompanied at the hearing.

A “disciplinary hearing” was then defined as a hearing that could result in:

(a) The administration of a formal warning to a worker by his employer,
(b) the taking of some other action in respect of a worker by his employer, or
(c) the confirmation of a warning issued or some other action taken.

In Ms Ferenc-Batchelor’s case, she was called to a disciplinary hearing regarding an incident where she had incorrectly taken a train into a station after going through a red light. When she asked to be accompanied, she was informed that she was not allowed “trade union representation at this level.” At the hearing, detailed investigations were made, which included visits to where the incident took place. At the end of the investigation, her employer concluded that an informal warning was not appropriate, and initiated a formal disciplinary procedure. At this point, Ms Ferenc-Batchelor was accompanied.

The Tribunal held that Ms Ferenc-Batchelor should have been given the right to be accompanied at the investigative hearing. This was because although the hearing could have resulted in an “informal oral warning”, the warning was in reality a “formal” warning under the Act. It was considered to be formal as it was confirmed in writing, and continued to have an effect for up to twelve months on the employee’s record.

In Mr Harding’s case, he was called to an interview under the employer’s attendance at work procedure. His request to be accompanied was refused, and Mr Harding walked out of the meeting. The hearing continued and he was given an “informal oral warning” in his absence. Again, this was confirmed in writing and remained on his record for twelve months.

The Tribunal held that the warning did not amount to a “formal warning” in terms of the Act and accordingly he did not have a statutory right to be accompanied at the hearing.

London Underground appealed the decision in the Ferenc-Batchelor case. Mr Harding appealed the decision in his case.

Decision

The appeal in the Ferenc-Batchelor case was dismissed and allowed in the Harding case.

An “informal oral warning” of the type issued to the employee’s was in reality a “formal warning”, as defined in the Act. Therefore, the employees did have the right to be accompanied.

The distinction between an informal and a formal warning is that an informal warning may signal the commencement of a disciplinary procedure in the future, in the event there is any further repetition. In such a situation, the informal oral warnings itself would fall away and play no part in the procedure or in any decision. A disciplinary warning becomes a “formal warning” when it becomes part of the employee’s disciplinary record. The Appeal Tribunal noted that making the warning part of the employee’s record is to be contrasted with management purely recording what occurred. Attaching a time scale for the continuation of the warning also lends a degree of formality to what has occurred. This is in contrast with the purpose of an informal oral warning which is designed to allow the employee to improve, and by its nature will fade and disappear naturally by the course of time.

In these cases, the employer’s disciplinary and attendance at work procedures stated that an “informal oral warning” could be confirmed in writing, could have a formal time scale for continuation, would form part of the employee’s record and could be taken into account in the event of repetition. Therefore, in the Ferenc-Batchelor case, the Tribunal had been correct to find that what was described as an “informal oral warning” was, in reality, a formal oral warning. Furthermore, in the case of Harding, the Tribunal had erred in finding that the warning was truly informal.

Comments

Clearly the right to be accompanied is an important right, whose importance is set to increase once the statutory dismissal and grievance procedures come into force. The message given by the Tribunal is clear and should be born in mind by all employers from a managerial point of view – an “informal” warning will be considered to be “formal” if it has the characteristics of a formal warning, regardless of its description.

Peter Taylor - Managing Partner and Head of the Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .