Omission to Act

/Omission to Act
Omission to Act 2018-04-10T11:02:43+00:00

“Omission To Act”

An “omission to act” is where the employer fails to do anything to remedy a situation. For example if the employer fails to implement reasonable adjustments in a timely manner then this would be an ‘omission’.

A failure to make a reasonable adjustment is an omission, not an act – Matuszowicz v Kingston Upon Hull City Council[2009] IRLR 288 (CA).

Once the employee has lodged a letter of grievance with their employer the employer is generally entitled to take what he is told by his employee at “face value.” An ‘omission’ to investigate an employee’s grievances adequately and promptly can give rise to the employee making a claim to an Employment Tribunal – W. A. Goolds (Pearmak) Ltd v McConnell [1995] IRLR 516 – “The employers duty to reasonably and promptly afford an opportunity to the employee to obtain redress of any grievance they may have”.

“Deliberate Omission To Act”

Once the employee has lodged a letter of grievance, and established facts that the employer is under a “duty of care” to either (i) make reasonable adjustments or (ii) take reasonable and practicable steps, or (iii) remedy a breach of the employers “health and safety” obligations. The onus is thus placed upon the employer to observe the “mutual trust and confidence“. Viz: to “act reasonably” and take what the employee has stated at “face value”. The employer must act swiftly, with prudence, and “due diligence” to right the wrong, taking into account the employer’s undertaking, resources, size etc., to do so. The bigger the employer, the greater the onus upon the employer compared to a small employer, with limited resources.

breach of contract may arise from the time when the employer either (i) omits to act (ii) doesn’t act reasonably (iii) deliberately omits to act. There is a difference between an “omission” and an “act”. Did the employer simply make an “omission” (oversight) – or, did the employer “omit to act” (capriciously)? Either way, this is for the Employment Tribunal to figure out, not you.

Should the employee make a claim to the Employment Tribunal due to the employer’s “acts” or “omissions” the employee needs to establish in their ET1 what the employer actually failed to do (breach). The Employment Tribunal will then look at what steps the employer could and should have undertaken, to have remedied the “breach”.

“A Fair Grievance Procedure”

Wigan Borough Council v Davies [1979] ICR 411
An implied term in contracts of employment is that the employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow workers; and where an employer has an obligation to take reasonable steps to achieve something and takes few or no steps, the onus of proving what steps would have been reasonable is on the employer.

Bracebridge Engineering Ltd v Darby [1990] IRLR 3 EAT
A failure to seriously consider a genuine grievance, or to operate an ineffective grievance procedure could be grounds for constructive dismissal.

Goolds v MccOnnell [1995] IRLR 516
The duty to reasonably and promptly afford an opportunity to employees to obtain redress of any grievance they may have.

Spink -v- Express Foods Limited [1990] IRLR 320
“It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.”

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