March 2020 Newsletter

We apologise for the delay in bringing you this month’s bulletin. In these unusual times, we have decided to focus on providing you with up-to-date coronavirus (COVID-19) updates which you can read here.

I am sure you will have many employment comments and queries during this challenging and unprecedented period.

We remain open as usual so please do contact us. Another useful source we have found for coronavirus/employment advice is the ACAS website. 

We hope that you, your colleagues and families remain safe during this period.

In the meantime, we have provided some general employment law updates for your information.

1. What to do if an employee faces Criminal Charges

 Overview: Is it fair to dismiss an employee who has been charged with a crime?
This was considered recently in Lafferty v Nuffield Health.

Facts: the employee was a porter at a charity. He had 20 years' service and a clean HR record. One of his duties was to transport patients who were anaesthetised. He was charged with a serious sexual offence outside of work (which he denied) and was released on bail. He was suspended on full pay while the employer investigated. The employer decided that the risk to its reputation if he was found guilty was too great bearing in mind his access to vulnerable patients. They dismissed him with notice.

Held: The Employment Tribunal found that his dismissal was fair based on 'Some Other Substantial Reason'.

On appeal, the EAT agreed but said each case will turn on its own facts - in some cases, the risk of reputational damage will justify dismissal before an employee has been convicted of a crime.

In this case, it was relevant that the employer’s sector had been operating under intense scrutiny due to employees committing sexual offences. Also, the employer had conducted a reasonable investigation before deciding to dismiss. They had asked for more information about the charges from the employee and the police. They had also considered suspension on full pay but, with no trial date set, had decided the potential cost of this would be unreasonable bearing in mind its charity status. The employee's dismissal was within the range of reasonable responses.

Comment: Be careful not to dismiss outright on the basis of any criminal charges. Here, the employee was dismissed because of potential reputational damage, not because the employer thought he was guilty of an offence. In addition, the employee's job as a porter provided him the opportunity to commit the kind of offence he was charged with so was higher risk. That won't always be the case (the EAT gave the example of an employee charged with a criminal driving offence but does not drive as part of their role. In that case continuing to employ the employee would be unlikely to result in reputational damage).

If you are considering dismissal, always carry out your own investigation separate to any police investigation before making any decision to dismiss. If an employee is charged with a crime, you should seek additional information rather than acting solely on any Police action (e.g. prosecution). Employers must also consider options other than dismissal as part of any decision-making process.

 2. Indirect discrimination – can a one off decision be a PCP?

 Overview: Under the Equality Act, an employer must make reasonable adjustments for a disabled employee if a Provision, Criterion or Practice (PCP) applied to all employees puts a disabled person at a substantial disadvantage compared to non-disabled people.

In the recent case of Ishola v Transport for London, the Court of Appeal looked at whether a one off decision can be a 'PCP' for which an employer must make reasonable adjustments.

Facts: The employee went off sick in May 2015 after his complaint against a colleague wasn’t upheld. He was disabled due to depression and migraines. He refused to engage with occupational health or with any other efforts to bring him back into work. He made numerous complaints about the people involved in managing his absence. He had already been invited to a meeting where dismissal was an option when he raised his final complaint about another manager involved in his sickness management. Although the issue wasn’t formally investigated before his dismissal, it was largely addressed by replacing the manager concerned. The employee was eventually dismissed for incapacity in June 2016.

The employee brought claims in the employment tribunal, including one for failure to make reasonable adjustments. He said that the employer's requirement that he return to work without a proper investigation of his grievance (which led to his dismissal) was a PCP. He said it would have been a reasonable adjustment to investigate the grievance properly to allow him to return to a discrimination free environment.

Held: The Court of Appeal said that some one-off decisions may be PCPs, if they apply or are likely to apply to other people or situations in practice. Others are just stand-alone decisions. In this case, the decision to dismiss the employee without fully investigating the final grievance was a one-off decision. It was not the employer's usual practice to dismiss employees without investigating grievances.

Comment: This is not a case that condones generally moving to dismissal before resolving relevant grievances appropriately. However, in this case, the employee had raised numerous complaints or grievances against different members of staff involved in his case. All except the last one had been resolved (albeit not to the employee's satisfaction) before the employee's dismissal. In these exceptional circumstances, moving to dismiss without fully investigating the final complaint was reasonable.

 3. Unfair dismissal – what knowledge does an employer need to dismiss?

 Overview: Do the Tribunals need to take into account knowledge of various managers (e.g. investigating and dismissing officer in a disciplinary investigation) when deciding whether a dismissal was fair?

Facts: In Uddin v London Borough of Ealing, the employee was dismissed due to an allegation of inappropriate sexual behaviour towards a work placement student in a bar. The employee had reported the matter to the police but had subsequently withdrawn her complaint. The investigating officer knew that the complaint had been withdrawn to the police but did not tell the dismissing officer about this. Was the decision to dismiss therefore outside the range of reasonable responses open to the employer?

Held: The ET said the dismissal had been fair because the employee could have been fairly dismissed anyway even without the police complaint.

The EAT disagreed. The dismissing officer said she had taken the police complaint into account. She would have asked more questions had she known the police complaint had been withdrawn. Therefore, the knowledge of the investigating officer was relevant and hidden from the dismissing officer. This made the dismissal unfair.

Comment: It doesn’t really matter to employers which part of the legal test is affected when a dismissing officer isn’t given all the relevant information by an investigating officer. The important point is that it matters, both in relation to the reason for dismissal that a tribunal must establish, and the fairness of a dismissal overall.

Employers should ensure that all relevant information is given to dismissing officers. if a disciplinary or appeal hearing remains outstanding, this includes facts which come to light after the investigation has apparently finished.

 4. Whistleblowing case

 Overview: In the UK, Workers are protected from being treated badly by their employer after making a protected disclosure (i.e. “whistleblowing”) about any malpractice they see.

In Jesudason v Alder Hey Children's NHS Foundation Trust, the Court of Appeal considered whether an employer's attempts to “set the record straight” can amount to a detriment.

Facts: The employee was a consultant surgeon. He made numerous disclosures to various bodies, including the Trust's HR department and the Care Quality Commission. He also made inappropriate disclosures to Private Eye magazine. He resigned his post and signed a settlement agreement. He then brought a claim for detriments suffered due to whistleblowing, including detriments after his resignation. He said he had suffered detriment due to letters the Trust had sent to third parties defending its position. The letters said that the employee's allegations were completely without foundation (when reports had identified concerns) and that the employee's actions were 'weakening genuine whistleblowing'.

Held: The Employment Tribunal (ET) and EAT agreed that the letters could not amount to a detriment because the Trust was simply defending its position.

On appeal, the Court of Appeal said that both the ET and EAT had technically got it wrong. An employee could suffer a detriment if negative comments were made about him in a letter seeking to set the record straight. The employer's motive is irrelevant if the effect is detrimental to the employee.

Despite this, the Court agreed with the ET and the EAT on causation - the claim still failed because the detrimental treatment (the letters) was not caused by the employee's protected disclosures (the reason the Trust had made those detrimental comments had been damage limitation, to reduce the effect of the potentially damaging information the employee had made public, not because he had blown the whistle).

Comment: This case shows that an employer might be able to justify making negative comments about an employee when seeking to defend its position, especially when matters have been thrown into the public domain by an employee.

Whistleblowing is a complex area of law and legal advice is generally recommended.

 5. Age discrimination – compulsory retirement

 Overview: The law states that compulsory retirement age policies can only be justified if they are a proportionate means of achieving a legitimate business aim.

In cases of alleged age discrimination, an employment tribunal will look at why the compulsory retirement age is necessary and appropriate and whether there is any alternative (e.g. fitness or competency tests).

They will also consider whether any compulsory retirement age actually achieves the business aim in question and weigh up the effect of the legitimate aims against their discriminatory impact.

In Ewart v University of Oxford, an employment tribunal has looked at whether a University's compulsory retirement age was objectively justified.

Facts: The employee was made to retire at 67 due to a compulsory retirement policy. The employer said there were legitimate business aims including intergenerational fairness and career progression for junior staff, facilitating succession planning and promoting equality and diversity (recent recruits were more diverse than the existing cohort, in particular the older employees). The employee brought claims for unfair dismissal and age discrimination.

Held: The ET agreed that the employer's aims were legitimate. However, the aims were not proportionate when weighed up against the discriminatory impact of the compulsory retirement policy. They found that the retirement policy had only created 2-4% more vacancies for younger staff than would have otherwise existed. It found that senior posts were often filled externally and there was no plan in place for junior career progression. In relation to diversity, the evidence showed that the retirement policy contributed little overall to the University's efforts to diversify.

Comment: At the time of writing, it looks like the University intends to appeal this decision. Whatever happens on appeal, this case shows that Employers need to demonstrate that legitimate business aims are actually effective to justify the discriminatory impact on employees.

Compulsory retirement ages are getting less and less justifiable. Employers should consider other methods to assess whether employees are fit to continue in work such as fitness or competency tests.

 6. Shared parental pay

 You may remember the somewhat controversial Court of Appeal decision in Chief Constable of Leicestershire v Hextall last year in which the Court of Appeal decided that it was not discriminatory to pay men on shared parental leave less than women on maternity leave.

It held that the special treatment women receive in relation to pregnancy and childbirth is a legal exception to the rules on discrimination.

The Supreme Court has now refused the employee's request to appeal that decision. This means that the Court of Appeal's decision is now the final word on the issue (unless Parliament legislate) which will bring comfort to employers. Employers can choose to enhance maternity pay without enhancing shared parental pay.

 7. And finally…

 Is flexible working affecting your employees and their family lives negatively rather than positively?  A recent survey - The 2020 Modern Families Index – says that evening emails and a culture of always being available means jobs have become too big for allotted working hours. The survey, published by the charity Working Families and childcare provider Bright Horizons, talked to more than 3000 parents across the UK.

The survey showed that more than half of parents work flexibly, either in terms of their hours or working from home. However, almost half of them say that this has increased their workload, with many feeling they have no choice but to work in the evenings. Almost half said that the boundaries between work and home have become blurred because of modern methods of communication such as email. Going into work mode in the evenings causes arguments with both children and partners, according to over half of those polled.

Comment: Does this mean flexible working isn’t working? Not necessarily, but employers should consider what they can do to help their employees achieve a work-life balance. Jane van Zyl, CEO of Working Families, urges companies to ensure that jobs are 'human-sized' and managers lead by example with  their own work life balance.

The survey also recommended that employers strategically consider job specifications, carefully considering the tasks involved and the time they will take.