A Look Back at the Week that Was with Jane Bowen, Solicitor: This week – Tribunal Statistics

The Ministry of Justice has published their Employment Tribunal statistics for April to June 2018. These show that the number of single claim receipts at the Tribunal are up 165% when compared to the same period in 2017.

Whilst this is unsurprising given that Tribunal fees were still in force in the same period in 2017, the level of increase shows that we have returned to the position where aggrieved employees are issuing claims as a matter of course as the pendulum of cost vs reward has swung back in their favour. Rather interestingly though, the same statistics show that in the same period only 7% of claims were successful at hearing, the others either unsuccessful, withdrawn or settled prior to hearing.  This supports the assumption that there are number of claims being issued because “there is nothing to lose” rather than there being actually any merit to them.

Having returned from maternity leave this week after a period of 10 months, for me these statistics mean that I am returning to a very different caseload, with non-contentious matters having formed the bulk of my work previously.  With clients now facing an increase in claims, we encourage seeking legal advice at an early stage to ensure processes and procedures are being followed correctly and to minimise the financial and reputational risks that unfortunately go hand in hand with employment litigation.

Jane Bowen, Solicitor, works within Devonshires Employment & Pensions Team.

 

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Parental Bereavement (Leave and Pay) Bill

On 13 September 2018 The Parental Bereavement (Leave and Pay) Bill received Royal Assent. The Act will give all employed parents the right to two weeks’ leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. Subject to meeting certain eligibility criteria, employed parents can claim statutory parental bereavement pay for this period of leave. This will be a right from day one of employment and will require no qualifying service.

The final text of the Parental Bereavement (Leave and Pay) Act 2018, as it will be known, has not yet been published but it is expected these new rights will come into force in 2020.

For further advice on dealing with disciplinary hearings, please contact your usual contact in the Employment and Pensions Team.

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‘Bad Faith’ In Victimisation Claims

In considering a claim for victimisation, the Employment Appeal Tribunal has held an employee did not act in bad faith even though his allegations were made with an ulterior motive.

Victimisation

Victimisation occurs where a person (A) subjects another person (B) to a detriment either because B has done a protected act or because A believes B has done or may do a protected act.

A ‘protected act’ includes:

  • bringing proceedings such as a discrimination claim under the Equality Act 2010 (EqA 2010);
  • giving evidence or information in connection with proceedings under EqA 2010;
  • doing any other thing for the purposes or in connection with EqA 2010; or,
  • making an allegation that that a person has contravened EqA 2010.

An act will not be a protected act if the evidence or allegation made by the employee is false and given in bad faith. This is not to be confused with the concept of “good faith” used in whistleblowing cases prior to 25 June, as demonstrated by the case of Saad v Southampton University Hospitals.

The Facts

Mr Saad was a trainee cardiothoracic surgeon employed by Southampton University Hospital Trust (the Trust).

Performance concerns were raised regarding Mr Saad throughout his training. However, Mr Saad considered he was the subject of unfair treatment and in July 2011 he raised a grievance. The grievance included a complaint that in 2007 the training programme director at the Trust had made jokes that Mr Saad, who is Sudanese, looked like a terrorist. Mr Saad had not witnessed these comments being made himself but that he had been told about them by colleagues.

In October 2011 Mr Saad brought a claim for automatic unfair dismissal for whistleblowing and victimisation in which he relied on his grievance as the protected act and protected disclosure.

Employment Tribunal

The Employment Tribunal rejected Mr Saad’s whistleblowing claim. Although the Tribunal accepted that Mr Saad subjectively believed that the terrorist comment had been made it found his belief was not reasonable. The Tribunal also found Mr Saad’s grievance was not made in good faith as his predominant purpose in making his grievance was actually to delay the assessment process as part of his training programme which he knew he would fail.

The same logic was then applied to the victimisation claim, with the ET finding Mr Saad’s allegation about the terrorist comment had been made in bad faith due to his ulterior motive. Mr Saad appealed this finding to the Employment Appeal Tribunal (EAT).

Appeal

Mr Saad’s appeal was upheld. The EAT found it had been wrong to apply the good faith test for whistleblowing claims to the question of bad faith for his victimisation claim.

The EAT held that in a victimisation case, the primary question in considering bad faith is whether or not the employee acted honestly in making their allegation. Whether or not the employee had an ulterior motive can be relevant but should not be the focus of the tribunal. In this case, Mr Saad had genuinely believed that the terrorist comment had been made. As his allegation had been made honestly, it had been made in good faith and his claim for victimisation should be upheld.

Comment

This case is a useful illustration of the principle of bad faith in victimisation claims and may have an impact on the ability to defend such claims. This is because it will not be possible for employers to simply point to an ulterior motive as evidence of bad faith. However, if the allegation is patently false, it will be more difficult to argue that a Claimant honestly believed it, particularly if they do have an ulterior motive.

Employers should ensure that they have robust processes in place to investigate any complaints of victimisation in the workplace, even where the motives for raising issues may appear suspect.

If you would like to discuss this claim further, please contact your usual contact in the employment and pensions team.

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A Look Back at the Week that Was: This week – The value of references

Last week ACAS published new guidance on giving references. Most of its content will be of little surprise to HR professionals, the guidance covering when a reference must be given (generally no positive obligation to do so) and what it should say (it must be true, accurate and fair). Whilst there are legally tricky issues arising with references (for example when does an omission become misleading and what impact does GDPR have), in this piece I want to look at the trend towards providing only very basic – “tombstone” – references.

My clients tell me that if they see a reference now which states anything more than just job title and dates of employment then alarm bells start ringing that the reference must be an agreed one being given under a Settlement Agreement.  This seems such an indictment of modern society – that we’re so scared of being sued for saying something that is proven to be wrong that we’d rather not say anything very much at all, and that we’d only say something positive about a departing employee if we had to.  Whilst I am a lawyer and therefore might be thought to revel in the benefits of an increasingly litigious population, I genuinely don’t think that is a good place for society to be – but I do sometimes have to caution the more ‘exuberant’ of my clients to be sure that they can back up the description they are giving of someone in case it is used against them down the line.

What I don’t see though is how much informal sharing of additional information about candidates goes on behind the scenes. Whether, HR to HR, further details about for example attendance or disciplinary records are disclosed – or subtle comments and tone used to hint that the prospective employer should be careful. The difficulty for the prospective employer though is how it can withdraw a job offer if such information comes to its attention and causes concern.

That is because one consequence of the increased use of tombstone references is the inevitable lowering of the threshold of what amounts to a “satisfactory” reference – receipt of “satisfactory” references usually forming part of a conditional offer of employment.  If simple corroboration of what a candidate has said about their employment dates and job title is enough to satisfy the conditionality of a job offer then the ability to withdraw an offer because of surreptitiously gained additional information, without disclosing the existence of it, becomes increasingly difficult.

Is the next step just to abandon the reference-checking process altogether?  What value is it actually adding to the recruitment process?  A candidate could prove their previous job title and dates of employment to a prospective employer through paperwork.   HR teams could save the admin headache of chasing after reference requests which have not been replied to.  Because ultimately prospective employers should stand behind their own judgement about whether to offer someone a job or not – and if that judgement proves wrong (as sometimes it will), the probationary process provides the tool to manage that rather than looking to see if a third party can be held responsible.

Finally, for anyone who does check out the ACAS guidance for themselves, I do just want to flag one point that I think could be misinterpreted. ACAS say that an individual can make a request for a copy of a reference to the author of it; the implication is that the author ought then to provide it. Under the old DPA regime there was actually a specific exemption which meant that the author of a reference did not have to provide it to the subject, however it permitted a request to be made of the recipient and they would have to decide whether to disclose or not.  Under GDPR and the DPA 2018, personal data can be withheld by either the provider or the recipient where it relates to a confidential reference.  Employers would be wise to double-check the small print in their reference templates to make sure that it clearly states that the reference is confidential, although if it’s only a tombstone reference then there ought not to be any issue in disclosing it anyway.

Kirsty Thompson, Partner, works within Devonshires Employment & Pensions Team.

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Refusal to postpone a disciplinary hearing made dismissal unfair

The Employment Appeal Tribunal has held an employee was unfairly dismissed when her employer refused to postpone a disciplinary hearing to allow her union representative to attend.

Background

Mrs Smith had been an employee of Talon Engineering Limited (Talon) for 21 years.  She was suspended whilst Talon investigated allegations of gross misconduct including that she had sent unprofessional emails to a key contact of the business.  The first disciplinary hearing that was scheduled was postponed due to Mrs Smith being ill and then having a period of annual leave.  Mrs Smith’s union representative was not available on the new date and emailed Talon requesting the hearing be postponed.  He offered up 3 dates when he would be available, all of which were more than 5 working days after the re-arranged hearing date.

Talon refused to agree to this request and Mrs Smith refused to attend without her union representation.  Talon went ahead with the meeting in her absence. Talon dismissed Mrs Smith for gross misconduct. Her appeal against dismissal was unsuccessful and she brought a claim for unfair dismissal.

Employment Tribunal

The Employment Tribunal found although Mrs Smith’s conduct was potentially a fair reason for dismissal, refusing to postpone the disciplinary hearing made the dismissal unfair.

In the Tribunal’s view, no reasonable employer would have refused a further short postponement and gone ahead in the employee’s absence, given the importance of employees attending such hearings. Although in some circumstances it is appropriate to go ahead with such a hearing in the employee’s absence the Tribunal considered this was not one of those cases as there had been no misbehaviour on the part of Mrs Smith, the process itself had not gone on for a particularly lengthy period of time and the requested postponement was short.

Talon appealed to the Employment Appeal Tribunal (EAT). A key ground of their appeal was that the Tribunal had failed to take into account the rules on being accompanied to hearings set out in section 10 of the Employment Relations Act 1999 (1999 Act).

Appeal

The 1999 Act sets out the statutory right of employees to be accompanied to disciplinary (and grievance) hearings. Under section 10, where an employee’s chosen companion is unavailable, an employer must re-arrange the hearing if the employee suggests a reasonable alternative time which isn’t more than 5 workings days later than when it was supposed to take place.  The proposed alternative dates given by Mrs Smith’s union representative fell outside the 5 working day limit so Talon were not in breach of their duties under the 1999 Act in refusing to agree to these dates.

However, whether or not Talon were in breach of the 1999 Act was a separate question from whether Mrs Smith had been unfairly dismissed under the Employment Rights Act 1996. The EAT highlighted that although a breach of the 1999 Act would almost always mean that the employee was unfairly dismissed, this does not mean the opposite is true or that the Tribunal is prevented from finding that the dismissal was unfair.

The EAT upheld the Tribunal’s finding that the dismissal was unfair. It had not been reasonable to refuse to postpone the hearing and Talon had been “too impatient and hasty” to dismiss Mrs Smith.

Comment            

This case highlights the potential risks of deciding to proceed with a disciplinary hearing in the absence of an employee, particularly when the reason the employee is unable to attend on that date is due to the unavailability of their chosen representative.  The 1999 Act does not provide the single answer to whether an employer has to postpone a hearing or not.

In determining whether or not to proceed in an employee’s absence in these circumstances, employers should consider:

  • how long the disciplinary process has been ongoing;
  • the employee’s behaviour during that process, such as their willingness to engage;
  • the wider context, including the employee’s length of service; and,
  • the potential impact caused by agreeing to any alternative dates suggested by the employee, even if they fall outside the 5 working days set in the 1999 Act.

For further advice on dealing with disciplinary hearings, please contact your usual contact in the Employment and Pensions Team.

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This week: Our working weeks

Two interesting pieces on how we work, and how we want to work, made the mainstream media last week.

One of these was a story about PwC who are inviting recruits to specify when they would like to work (be it two days a week or just two months a year), and then trying to match those people to projects where they can do that. They call it their Flexible Talent Network, an initiative which is in response to a study they carried out which showed that just under half of the respondents prioritised flexible working and a good work-life balance the most when looking for a job.

This sort of idea is inevitably easier for some types of organisations to implement than others. But it does prompt the question of whether the flexible working that other organisations profess to offer as a benefit to staff is really that flexible. In comparison, it feels like finite flexibility within a framework. The default position still very often seems to be 9 – 5, Monday – Friday, in the office, and only a reluctant agreement to accept something like a 30 minute earlier start and finish time, or one day working from home, where a reason to refuse can’t be found. PwC is looking to tap into a talent pool that doesn’t want to, or can’t, conform to a traditional view of working and 2000 people have signed up in the first 2 weeks. It is often said that these sort of changes in employee attitudes are driven by the Millennials amongst us but everyone could take some benefit from a fundamental rethink about what flexible working actually means.

The second story of last week that caught my eye showed the significant proportion of employees who are opting to exercise flexibility as to where they do the work that they can’t find time to do during their official working hours. The results of a study by the University of the West of England confirmed what those of us who travel by train will see everyday (i.e. the significant number of people who are working whilst they commute).  With the advent of technology, it is easy and efficient to catch up on emails on what otherwise would be dead time, allowing an earlier exit from the office or avoiding the need to log-on once home. As it happens, I am writing this whilst I do my commute. The study asks the question of whether time spent working in this way should actually count as working time – the office worker’s equivalent of the Tyco case on mobile workers. I can’t see the law changing in that way but the study does raise other questions which employers ought to consider about employee wellbeing and data security. As an employer, how important is it to know how many additional hours your employees are doing? What monitoring arrangements would you put in place to find out when this is happening outside of the office? Ought you actually to prohibit employees from working on the train if the person next to them could read over their shoulder, or the train wi-fi be insufficiently secure?

And for those of us who do work on trains, what right do we have to ask the person who is actually unwinding whilst they travel by listening to their music, but causing a distraction in our unofficial working environment, to TURN IT DOWN??!!

Kirsty Thompson, Partner, works within Devonshires Employment & Pensions Team.

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Extending the effective date of termination in cases of gross misconduct

Lancaster and Duke Limited v Ms V Wileman

Summary

Following a recent decision from the Employment Appeal Tribunal (EAT) it has been clarified that when an employer has a genuine entitlement to summarily dismiss an employee on the cusp of accruing 2 years’ service because of their conduct, the employee is not entitled to rely on the provision in the Employment Rights Act 1996 (ERA) about adding on statutory notice to their length of service to determine whether they have the requisite service to enable them to bring a claim of unfair dismissal.

Background

Ms V Wileman (the Claimant) was employed as a recruitment consultant for a small employment agency business (the Respondent). Two days before completing two years’ service with the Respondent, the Claimant was dismissed (summarily) for gross misconduct. Subsequently she lodged a claim for unfair dismissal which the Respondent disputed, referring to the minimum requirement of two years of service which the Claimant did not have.

The Claimant argued that her length of service could be extended by the provision under S.97(2) ERA. This sets out that an employee who is dismissed in the absence of notice can in some circumstances artificially extend the effective date of termination to the date on which the proper statutory notice would have expired. S.86 ERA establishes a statutory minimum notice period of one week for an employee with more than 1 month and up to 2 years’ service, which in this case would have brought the Claimant’s service over the requisite 2 years, therefore allowing her to proceed with a claim of unfair dismissal. However S.86 also preserves an employer’s right to dismiss without notice where there has been gross misconduct.

At first instance the Employment Tribunal agreed with the Claimant and accepted that she had sufficient service to bring an unfair dismissal claim.

Appeal at the EAT

The Respondent appealed and the EAT upheld the appeal.

Although s.97(2) may allow for the effective date of termination to be deemed a later date where no notice was given, this provision will always be subject to s.86(6) and the employer’s right to give no notice. Effectively this means that there is no extension of length of service in cases of gross misconduct. As the Tribunal had not made a specific finding on whether the Claimant was guilty of gross misconduct, it was not possible to apply the principle at hand and the case was therefore remitted to the Tribunal.

Comment

Although the situation may not be one which is common, the decision comes as reassurance to those employers who dismiss employees close to their 2nd anniversary. Providing the employer was entitled to dismiss the employee for gross misconduct, the employee will not be entitled to add notice to take their length of service over 2 years and bring a claim of unfair dismissal. However an employer can’t just label a dismissal as a gross misconduct one in order to take the benefit of this decision – a Tribunal will look at whether there actually was an entitlement to dismiss for gross misconduct before ruling out the extension of service on that ground.

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