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Robyn McIlroy
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I assume that the recent decision you refer to is the House of Lords judgment in the case Barber v Somerset County Council, which was one of the four co-joined cases heard before the Court of Appeal as Sutherland v Hatton - but the only one of the four to appeal to the House of Lords.
While the legislative competence of Parliament extends to all the United Kingdom, three distinct legal systems exist in Scotland, England and Northern Ireland. The House of Lords is the final court of appeal from all three jurisdictions (except for criminal cases in Scotland). The House of Lords decision in this case will therefore be be binding on Scottish lower courts where the same legal argument and the same legislative provisions are relied upon etc. All cases can however be distinguished on their facts and therefore it is possible for a Scottish 'stress at work' case to be distinguished from the House of Lords judgement concerned.
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Robyn McIlroy
Member - 2 posts
Based upon the information provided in your question I consider that there is a high likelihood that dismissal of this employee in the circumstances described could be regarded as unfair. To give a definitive view however I would need to examine the smoking policy to ascertain exactly in what way it is alleged the employee breached the policy (given that he seems to have been outside the premises when smoking and usually smoking policies permit smoking outside but not inside company premises).
My concern would be that dismissal is an overly harsh penalty for the disciplinary offence. Again this might depend upon exactly what the policy said, whether there were any other relevant factors whether he had previously been disciplined and given warnings for smoking etc. if however there were no prior occasions, even if his actions amount to a technical breach of the smoking policy, I would be concerned that dismissal would be an overly harsh sanction. If the employee has over 1 year qualifying period of employment he would have the right to bring a complaint of unfair dismissal against the company. An Employment Tribunal would examine all the facts and circumstances and would consider whether the dismissal was within the band of reasonable responses of an employer. If for example this is the first breach of the policy, if there was no immediate danger to health & safety, if the employee had a good disciplinary record then the dismissal is much more likely to be considered unfair.
If the employee does not have the qualifying period of employment he may nevertheless be entitled to take a claim of wrongful dismissal if he argues that his actions did not amount to gross misconduct and that if the company was entitled to dismiss him it was not entitled to do so without notice.
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