Here is the latest Employment Law round up and a summary of the latest employment law cases:
Whistleblowing claims against individuals
We are seeing a rise in whistleblowing claims brought against the directors or decisions makers as well as the company following the decision in Osipov v International Petroleum. In this case the employee blew the whistle and was put through a sham disciplinary as a result. The directors were subsequently held personally liable, along with the company.
The rise in whistleblowing claims is partly due to the fact that a claim for detriment has a lower burden of proof than an unfair dismissal claim and the award is an injury to feeling award which can be up to £42,700 similar to a discrimination claim award. This is significantly more than the basic award in an unfair dismissal claim. Claims with multiple Respondents are notoriously harder to manage and there is therefore more pressure to settle the claim early to avoid escalating costs.
Is suspension a breach of trust and confidence?
The Court of Appeal in London Borough of Lambeth v Ageroye considered what the correct test was when determining when a suspension would constitute a breach of contract. In this case a teacher was suspended for allegations of physical force towards two children at the school. She resigned on the same day that she was suspended and claimed the suspension was a breach of contract. The High Court held that suspension should be an act of necessity however the Court of Appeal reinstated the correct test which is whether there is reasonable and proper cause to suspend.
Employers should carefully consider whether suspension is appropriate in each case. For example not all gross misconduct offences will justify suspension. A rash decision to suspend could result in a constructive unfair dismissal claim.
Maternity Leave and Redundancy
In SW Yorkshire Partnership NHS Foundation Trust v Jackson the Employment Tribunal found that sending an important email about redundancy to an inaccessible email address because the employee was on maternity leave constituted ‘unfavourable treatment’ even though it only caused a few days delay and no substantial harm. They applied the rule that ‘but for’ the employee being on maternity leave, they would have received the email. The Employment Appeal Tribunal has remitted the decision back to the Employment Tribunal as whilst it is important to show causation through the ‘but for’ test the Tribunal should also have considered why the email was sent.
Employers must always exercise caution when conducting redundancy processes but especially redundancies that include or effect employees on maternity leave. Employees on maternity leave have enhanced protection against redundancy and may be entitled to be offered roles preferentially over other employees.
Can a dismissal be fair if the employer failed to follow a reasonable procedure when imposing an earlier warning?
The Employment Appeals Tribunal re-examined the decision of the Employment Tribunal in Beattie v Condorrat War Memorial and Social Club and others. The Claimant in this case was issued with a final written warning which was not properly investigated but was not challenged by the Claimant. The Claimant committed a further act of misconduct and was dismissed. The Employment Tribunal found that the process to dismiss was unfair and the Claimant was therefore unfairly dismissed, however her award was reduced under Polkey by 100% as they found that had a fair procedure been followed, she would have been dismissed in any event due to the final warning. The Tribunal refused to reopen the earlier decision to issue a final written warning and the EAT agreed.
Despite the findings, employers should always ensure that misconduct is properly investigated, and warnings are issued after following a fair and reasonable process.
Can a worker who is paid quarterly still be an employee?
The Employment Appeal Tribunal agreed with the Employment Tribunal in Exmoor Ales Ltd v Harriot that just because a worker was paid quarterly did not mean that they could not be an employee. The Employment Tribunal considered all other aspects including the point at which the Claimant agreed to work exclusively for the Respondent.
The status of a worker will turn on the individual facts and reality of the working relationship and can sometimes be hard to identify without specialist advice.
Disclosure of medical problem at dismissal appeal stage
In Glassford v Royal Mail Group the Claimant was dismissed due to poor conduct and unauthorised absences with previous disciplinaries. He appealed the dismissal and disclosed that he had a drinking problem at the appeal hearing. His appeal was dismissed and the decision to dismiss upheld. The Employment Tribunal found that the dismissal was fair and fell within a band of reasonable responses. The Employment Appeal Tribunal was invited to consider whether the employer should have undertaken further investigations before reaching a decision following his admission. The Employment Appeal Tribunal found that the Employment Tribunal had taken the correct approach in assessing whether the overall decision was fair. They found that the decision maker had considered his admission and had still found that the dismissal was reasonable especially as he had not sought help from either his GP or occupational health and therefore there was doubt over his willingness to tackle his problem.
This is an interesting case and it certainly raises the question as to whether the outcome would have been different if the employee had disclosed a qualifying disability under the Equality Act 2010. We have seen a rise in enquiries where mental illness is not disclosed until late on in disciplinary proceedings. We would advise an employer to exercise caution whenever an employee raises a potential disability late on in proceedings and to seek advice as to whether further steps need to be taken to protect both the employer and employee.
If you would like to discuss any employment issues please call us on 0114 303 2300 or email [email protected] for a confidential discussion. We are also running a 2 Day Mental Health First Aid Course. Our unique training course includes HR and Managers Resources to take away and implement within your organisation. To help your employees and those around you, join our course by emailing [email protected]