THE NEWSLETTER FOR PEOPLE MANAGERS
SOME OF OUR MORE INTERESTING ARTICLES
TEN ESSENTIAL WORKPLACE INVESTIGATION QUESTIONS – Contact us for a FREE copy. Our article has appeared twice in the Institute of Leadership and Management EDGE ON LINE magazine.
SOSR : SOME OTHER SUBSTANTIAL REASON (for dismissal). Most of you are aware that there are five potentially fair reasons for dismissal under the Employment Rights Act 1996 (“ERA 1996”) ie: conduct; capability; redundancy; breach of a statutory restriction; and “some other substantial reason of a kind as to justify the dismissal” (“SOSR”).
For some reason, the latter is seen as problematic to both employers and their legal advisers. Where there is a “breakdown of trust” between employee’s and management, in any organisation or charity, we would recommend you consider SOSR. It is a ‘sound and lawful’ reason to dismiss, particularly where staff and management are unable to work together harmoniously. Historically, there has been some uncertainty regarding exactly when, and when not, to rely on SOSR. Maybe this is because the term is not defined by statute and nor is there any statutory guidance on what it encompasses; rather, it has been left to case law to help determine what reasons can be relied on under the SOSR heading. Here are a couple SOSR cases:
- Case Law: Governing Body of Tubbenden Primary School v Sylvester. In this case, a judgment was published exploring the reasonableness of a SOSR dismissal for breakdown in trust and confidence between the dismissed teacher and the head teacher. In particular the EAT considered whether it had been open to a tribunal, when considering the reasonableness of the dismissal, to take into account not only the fact of the breakdown but also the causes of it and the surrounding circumstances. In putting forward their arguments, the school referred to key case law on this issue.
- Case Law: Ezsias v North Glamorgan NHS Trust. In this 2011 case the EAT upheld an ET’s decision that the dismissal of Mr Ezsias because of a breakdown in relationships at work, even though he was largely to blame for that breakdown, was for SOSR rather than misconduct. The EAT upheld “the refined but important distinction between dismissing Mr Ezsias for his conduct in causing the breakdown of relationships and dismissing him for the fact that those relationships had broken down”.
If ever you are in doubt, call us for a second opinion on 07734 701221. We don’t charge for telephone advice.
SECRET RECORDINGS AT WORK. Mobile technology makes it easy today for an employee to record a colleague secretly, without seeking consent first. This problem is escalating and we are likely to hear more stories along this vein, no doubt. Several cases have been reported to us over the last month – where an employee has resorted to ‘secretly recording’ colleagues or management during a workplace dispute. What steps can employers take to prevent this and should an unlawful recording be regarded as evidence in contentious cases? There are very mixed views on this.
An employee recently called us and alleged she had attempted to tell her employer about bullying within the department where she worked. She claimed her employer did not want to know. So, she secretly recorded the aggressive employee ‘shouting and swearing at her’ and handed the recording to her employer. Allegedly, the employer refused to listen to the tape and, instead, embarked on a disciplinary action against the aggrieved employee. Was the employee right to resort to secretly recording colleagues? Should the employee have handled matters differently? We put the question out via a LinkedIn forum and received some interesting responses. Clearly the employer needed to investigate the employee’s complaint. Most felt that an internal investigation would have been a natural course for the employer to take. Some say the secret recording should be relied on during an internal investigation. However, if the Company had an explicit policy prohibiting ‘secret recordings’ then the employee’s conduct would need to be addressed in accordance with that policy. Most organisations have an Anti-Bullying & Harassment policy, so the aggressive conduct would certainly need to be addressed. (Interestingly, had the employer been the one doing the covert surveillance, then there could potentially be a legal issue). Some say the disciplinary action brought against the employee for secretly recording a bullying incident, was heavy-handed. Overall, it was agreed that the bullying conduct would need to be better managed.
HR & Diversity Management would refer you to your in-house policies and procedures in every case. In the absence of a policy prohibiting ‘recordings’, we would advise that you should allow all evidence to be considered, including the tape recording, in order to establish the truth. If you believe otherwise, we would welcome your comments at firstname.lastname@example.org
TO COMPROMISE. (For the updated position see Settlement Agreements). Lots of changes have taken place recently. Clause 17 of the Enterprise and Regulatory Reform Bill the ‘Compromise Agreement’ has been renamed ‘Settlement Agreement’. It will be more straightforward for both employers and employees. We have already noticed a change in trends (across the UK) probably due to a relaxing of the laws where the independent advisor is concerned. Whatever the reason, Employers seem to prefer the Compromise/Settlement option to the risky and costly legal alternative of challenging contentious working relationships. More and more, Compromise Agreements are being used where an employer wants an employee to leave the workplace ‘quickly’ and under mutually agreed terms’ and/or where the parties acknowledge that the working relationship has come to an end, but neither party wants to go through a risky, costly, lengthy and/or formal process. It’s an exit strategy. A ‘shaking of hands’ and an amicable and mutually agreeable parting of ways. It’s catching on, but it is a complex process that needs to be handled carefully and sensitively.
An employee needs to receive ‘independent advice from a solicitor, trade union official or qualified advice worker’ before entering into a compromise agreement. We see this as positive news – a potential opening for HR Consultants who have the skills and appropriate indemnity insurances in place. We have been providing a Compromise Agreement Service for several years. We help in a number of ways from; mediating and negotiating an amicable settlement, providing a template Compromise Agreement for Employers, assisting with the complexities in a case and advising the parties of their legal obligations. We also refer C.A. cases to Employment Law Solicitors, who work closely with us. For a legal definition of Without Prejudice and for more information about Compromises see; http://hrdiversity.co.uk/compromise-agreement/
SICKNESS DURING ANNUAL LEAVE. As you probably know, the European Court of Justice recently ruled that employees who fall sick during their annual leave have the right to re-take that annual leave a later date, irrespective of when they fell ill. The ECJ stated that “the purpose of entitlement to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different, since it enables a worker to recover from an illness that has caused them to be unfit for work.” Previously, the Court has held that a worker who is unfit for work before the commencement of a period of paid annual leave is entitled to take that leave at another time which does not coincide with the period of sick leave. In this judgement, the ECJ state that the point at which the illness arose is “irrelevant“.
The UK Government is planning to amend the Working Time Regulations 1998 (SI 1998/1833), to take account of this ruling. We will keep you informed of developments.
NEWS & CASE STUDIES There are lots of new Cases detailed on our LAW, CASE LAW page of our website. Just click here: http://hrdiversity.co.uk/bullying-case-law-and-histories/
ASDA BULLYING CASE: A stuttering Asda worker who claims he was sacked over his speech impediment launched a campaign of harassment against a colleague an employment tribunal heard (12 September 2012). Adnan Malik accused supermarket giant of discriminating against his disability but in fact, in the end analysis, Mr Malik was found to have escalated instances of bullying himself. He bullied and harassed his cousin, Mr Sarwar (a colleague at the store) who claimed Adnan Malik threatened to ‘chop him up’. The case is detailed on our website, see above.
ROYAL MAIL RACISM CASE: In August 2012 a bungled racism case cost Royal Mail big tribunal payout. Employer investigation into complaint ‘shambolic,’ says EHRC . A Royal Mail employee who blew the whistle on racism at his workplace but was then sacked is believed to have won £100,000 compensation in an employment tribunal. The tribunal found failings in the employer’s internal investigation, which it said had not examined complaints that union representatives from the Communication Workers Union had backed an unofficial campaign to have the employee sacked by fabricating evidence. John Wadham, general counsel for the EHRC, said: “The Equality Act protects people from being victimized for making complaints about any form of discrimination in the workplace. It also says employers have a responsibility to take complaints seriously and to put a stop to discrimination. For the full story see; http://hrdiversity.co.uk/bullying-case-law-and-histories/
MEDWAY NHS TRUST CASE: A survey report for Medway NHS Hospitals Trust, issued in August, showed that 22% of employees claimed they were bullied, harassed or abused by colleagues through 2011. The figure was a rise of 2% for the year 2010. The Trust said this was disappointing and that bullying was “insidious”. For the full BBC article, see http://www.bbc.co.uk/news/uk-england-kent-19421195
DISCRIMINATION DUE TO PARTNERS DISABILITY CASE: As this case demonstrates, it is unlawful for an employer to discriminate against an employee by treating him or her less favorably than others because of someone else’s disability. http://hrdiversity.co.uk/news/
British Airways: BA failed to make reasonable adjustments. In this case, the employment tribunal found that British Airways plc’s (BA’s) failure to transfer one of its cabin crew, whose disability meant he could no longer undertake long-haul flying duties, to short-haul flights within a reasonable timescale amounted to a failure to make reasonable adjustments. http://hrdiversity.co.uk/news/
DAFFODILS & EMPLOYMENT LAW: It’s April time and ‘up pop the daffodils’ along with our annual Employment Law changes. This year, important amendments include those relating to tribunal procedures, unfair dismissal and statutory maternity and sick pay. Below, we report on just a few of the new laws – but please don’t hesitate to call us if you need to know more.
QUALIFYING PERIOD FOR UNFAIR DISMISSAL: Causing considerable interest, from 6 April 2012 the qualifying p: riod for making an unfair dismissal claim increases from one to two years (with one or two exceptions, see below). This change applies only to employees who start their job on or after 6 April 2012. The qualifying period for the right to receive a written statement of reasons for dismissal, on request, also increases from one to two years. Note: Employers be careful. You will need to make a distinction between those who fall into this category and cases where there are exemptions. ie: Employee’s who transfer and have continuous employment under TUPE etc., where there is a gap in employment which affects the calculation for continuous service and/or where an employee provides services (such as consultancy) which can be argued constitute continuous employment. Indeed, some dismissal rights do not need a qualification period ie: whistle-blowing or asserting a statutory right (such as the right to take time off to care for dependants), or where unlawful discrimination is alleged to have taken place. These categories are protected.
Historic facts: over the past 40 years the qualifying period has risen and fallen with successive governments, dipping as low as six months under a Labour government in 1974 and as high as two years under a Conservative government in 1985 – when, incidentally, the rationale for a reversion to two years was also to encourage recruitment. It fell back to one year under a Labour government in the late ’90’s, where it has remained for some time. However, our present coalition government made a commitment many months ago in its ‘Employer’s Charter’ of 2010 and in the Chancellor’s Autumn statement of 2011, to change things with effect from 6th April 2012 in order to encourage the private sector to have confidence to recruit.
STATUTORY MATERNITY, PATERNITY, ADOPTION AND SICK PAY STATS: From 1 April 2012 the weekly rate of statutory maternity, paternity and adoption pay increases from £128.73 to £135.45.
From 6 April 2012 the weekly rate of statutory sick pay also increases, from £81.60 to £85.85
From 6 April 2012 the lower earnings limit for primary Class 1 national insurance contributions increases from £102 to £107, the income tax personal allowance increases to £8,105, and the threshold at which employees pay the higher income tax rate of 40% is reduced to £34,371.
Other changes in Employment Law this month include the calculation of pensions and the auto-enrolment of eligible job holders into a qualifying workplace pension scheme and accident reporting procedures. Contact us for further details if you are interested.
NEW STALKING LAWS – WILL ‘STALKING’ BECOME THE NEW GRIEVANCE BUZZ WORD : Most of you will remember how much the introduction of The Protection from Harassment Act (introduced originally to help in stalking cases), influenced employee complaints. Well, campaigners are proposing to bring about further changes in the statute books on stalking. The Protection from Harassment Act is no longer believed to be fit for purpose. A new Bill will become law on 24 April, after which there will be a six-month period of consultation on training and sentencing guidelines. In November 2012 the new law will become operational. The campaign to bring about this change in law started just over a year ago by Protection Against Stalking (PAS) andNapo, the probation and family court union. The two organisations first met at an Association of Chief Police Officers meeting, which was reviewing stalking and harassment law and training. It was clear that the law was inadequate. It was evident, too, that existing legislation (passed in 1997; the Protection from Harassment Act) was no longer fit for purpose. So, a decision was taken to raise awareness inWestminster. We all know just how The Harassment Act has affected workplace cases – so just how will this new law affect employers? More news to follow.
TRIBUNAL RUNS OUT OF FUNDS : Cases due to be heard at London(East) Tribunal in the next couple of weeks may run into trouble. Letters have been sent out saying it has “reached the full extent of the budget allocation for this financial year and, as a result, there is no remaining judicial resource available to hear your case.” The future is unclear as to how long hearings will be disrupted. All this in a year we are paying £11bn for the Olympics?!
s.26 OF THE EQUALITY ACT 2010 : Did you know, an employee who witnesses racial harassment of a colleague may also experience harassment “related to” race within the meaning of s.26 of the Act. This puts us in mind of the Sexual Harassment laws! The definition of harassment set out in s.26 of the Equality Act 2010 means that the unwanted conduct in question does not have to be directed at the complainant. Most of us appreciate that it is the responsibility of the employer to make all employees aware of reporting policies & procedures (how long have we been going on about the role of the bystander), in respect of allegations of bullying or harassment in the workplace. Failure to provide and communicate an adequate grievance procedure could lead to grounds for a claim against the employer. Further, any employee who brings in good faith a complaint of discrimination should not, under any circumstances, be subjected to a detriment for doing so.
FEAR OF RETURNING TO WORK : Following any festive break and all that indulgence, fun and relaxation etc, returning to a stressful workplace is likely to grip some folk with fear. Actually, one in four admits to pulling a ‘sickie’ in order to avoid a day in the office – with Mondays proving the most popular day to call in sick. 63% of us claim that work related worries affect our weekends and our ‘quality time’ with our families and friends.
Certainly there is significant truth behind this. On Sunday evenings, particularly, HR&DM continues to receive helpline calls (NB: The National Bullying Helpline which we founded in 2007 is no longer a charity). The fear of returning to work, even after a short week-end, is daunting for some. We both understand and respect the fact that there is some apprehension and stress associated with a fear of workplace conflict but is ‘yearning to escape’ to a career that is hobby based – such as photography, fitness and cooking etc., either realistic or feasible? Is ‘walking away’ from a contentious work related situation really going to resolve the problem? We don’t think so. We do believe, however, that having a coping strategy and understanding the options available can greatly alleviate undue stress. So, if you suspect a tension or anxiety amongst staff within a particular department or team, or notice an increase in absence statistics – call us for a FREE and informal chat on 07734 701221. We would be pleased to help.
FIT NOTES : Recent research found that of the 6 million days ‘recorded absence’ employees were likely to be absent for an average of 47.57 days if they obtained a GP’s sick note – as opposed to 19.68 days if they did not. This is a significant increase in the time employee’s are likely to be absent. It is further alleged that two thirds of employee’s producing a sick note had not actually seen their GP. Clearly, our understaffed, underfunded, NHS is struggling. GP’s cannot possibly be expected to decide whether a patient is capable of doing their job without understanding what that entails. Furthermore, patients who have not been seen by their doctor should not be given a sick note, surely? Greater support is needed to address, and manage, long term absence and return to work programme. Attacking the recent Sickness Absence Review, blaming government and/or blaming the NHS system is not the solution. A much more united approach is required. Where the absence is ‘work related’ HR teams, Occupational Health experts, experts in conflict resolution and independent assessment experts should work in partnership, together with the distressed employee and his/her medical team, to identify early an resolution. Flexible working and alternative working arrangements should be considered as a matter of course – unless the employee is physically unable to work for some reason. Let’s drop the blame game and adopt a ‘can do’ approach.
SOCIAL MEDIA : One significant legal case during 2011 was Crisp v Apple Retail. If you do not know of it, it involves an employee who made derogatory comments about his employer on his private Facebook page. Some say, as the site could only be viewed by friends in a personal network, the dismissal for gross misconduct was a bit harsh. Whatever your view – numerous other cases are being reported involving the inappropriate use of Social Media sites. Without doubt, Employee Relations is a field that is shifting in view of up and coming technology – and the risk to UK business should not be underestimated. Disgruntled employee’s are turning to technology to ‘vent their anger’ at having been made redundant, dismissed or even suspended for alleged gross-misconduct. The CIPD addressed the issue by hosting a Social Media Conference in December. One of the speakers, Mr Neil Morrison of Random House, said that having a Social Media Policy was not only unnecessary – but a “bad thing” as it displayed a lack of trust in staff. “If somebody was reading the newspaper all day at work you wouldn’t respond by drawing up a newspaper policy,” he said.
We are all entitled to an opinion but we would have to disagree with Mr Morrison’s comments. Let us assume he is right. If he was, you might go so far as to say that we don’t need Terms & Conditions of Employment – or any policies and procedures for that matter. Replace them with trust! This would be irresponsible in our view. Policies are for the divorce, not the marriage. Indeed, the Tribunal system supports our view and urges employers to ensure they have a ‘well communicated social networking policy’. Employers must keep up with the 21st Century, address risk to the business and ensure that the appropriate contingency plans in place – and given ever changing technology, this would now include a Social Media Policy.
A SOCIAL MEDIA POLICY : The law surrounding an employee’s use of social media is constantly evolving. If you do not have a policy addressing employee use of social media, resolve to develop and adopt one in 2012. If you have a policy, review it regularly to embrace changing legislation. A good social networking or social media policy will set out parameters and expectations for employee use of social networking sites. Your policy should prohibit the disclosure of confidential or proprietary information related to your business or the business of a client, customer or business partner. It should also address copyright issues, including a requirement that employees respect copyright and fair use laws when it comes to the use of the name, trademarks, logos, identifying marks or copyright-protected material belonging to your company or any other entity. A social networking policies will strictly prohibit harassing or discriminatory comments or postings, and require employees to make clear that all postings are their own views or beliefs and not the views or beliefs of the employer.
Consider your exit policies and Compromise Agreements too. These should contain explicit social media and bullying & harassment clauses too. Whilst this will not stop harassment or inappropriate conduct after the employment contract has ended – it will act as a deterrent and will give you, the employer, a legal route forward. It’s good business sense.
FREE DISCIPLINARY PROCEDURE CHECK LIST – for managers : We once more offer you all a FREE Disciplinary Check List. It is vitally important to ensure your organisation, line management particularly, understands how to conduct a disciplinary investigation when addressing staff conduct matters. Here, we provide a useful, straight forward, check list for management to follow should they be tasked with managing such a process. Minimise risk to your business and ensure your line managers understand the process. Your Heads of Department and Supervisors will find this guide useful. Contact us for your FREE copy.
WHAT, EXACTLY, IS GROSS MISCONDUCT : We ran this article in December and it has attracted a great deal of interest. See a full article at http://hrdiversity.co.uk/frequently-asked-questions/
CASE LAW : In a Whistle-blowing case a Birminghamex-nurse has lost her tribunal claim. Karen Hall, who worked atSellyOakHospital,Birmingham, alleged she was forced out of her job at University Hospital Birmingham NHS Foundation Trust after making disclosures about malpractice in operating theatres, that senior staff ignored.
The Tribunal dismissed the claim and concluded that, although the nurse genuinely believed patients were at risk, the level of danger was not as pressing as stated. Furthermore, Miss Hall had ‘a tendency to exaggerate’. The NHS Trust demonstrated that they had taken the concerns seriously, had investigated them and had introduced extra safeguards where necessary. The Judge added; “As is inevitable where humans are involved, human error did occur from time to time or there was a decision to ignore the strictness of a rule if safety was not comprised. Though lapses were identified, procedures were not ‘ignored’ in the way the claimant suggested.” He went on; “It is regrettable that Ms Hall chose to take her unsubstantiated and, as stated by the tribunal, ‘considerably overstated’ and “uncorroborated’ allegations, which were ‘far removed from reality’, through a legal process which cost the NHS in excess of £155,000.
WHISTLEBLOWING CHECK LIST : If you are in receipt of a Whistle-blowing allegation;
Assume nothing. Follow in-house procedures and/or familiarise yourself with the Whistle-blowing Act.
Consider ‘reasonable belief’ and ensure the complainant is not victimised as a direct result of having raised the matter.
Investigate matters thoroughly and document the entire process.
When considering the facts, consider the bigger picture ie: ulterior motives, the history in terms of working relationships, collusion etc. Look for exaggerated facts and ensure claims are corroborated, ie: not based on hearsay or anecdotal reporting.
Observe the statutory rights of all involved.
Be prepared to make reasonable adjustments, re-write policies, clarify safety measures and/or re-train staff.
Do not allow the complainant to hold the organisation to ransom or to make unreasonable demands. Whilst a ‘Whistle-blower’ is protected for making a disclosure s/he is still required to adhere to good-conduct employment policies and procedures.
Have a Whistle-blowing Policy (in addition to a Grievance and Bullying & Harassment policy).
Communicate: Inform all staff of the outcome of any case and clarify what the remedies and improvement measures entail.
Monitor and/or review the situation, periodically, on an ongoing basis.
BT SEX PEST £289,877 : Miss Petrina Taylor, from Huddersfield, West Yorkshire, resigned her £20,000-a-year job in August 2009 when a bullying ordeal became too much. Leeds Employment Tribunal upheld her claims of sex discrimination and unfair dismissal. Miss Taylor, who was declared bankrupt in January 2000, was handed £289,877 in compensation earlier this year. It emerged this week that her award was the largest made by any tribunal nationwide in 2010/11.
We are astounded by this case for a number of reasons. There are several significant issues to this case that concern us.
In addition to Petrina Taylor, ten additional female employees at BT attempted to bring a claim but BT silenced them with compromise agreements and a financial settlement. It would seem Petrina could and would not be silenced.
- Whilst BT now admits liability, it was not until after Petrina Taylor quit that BT investigated Mr Alcock’s behaviour and dismissed him.
- At no point until so invited by the tribunal did BT consider it appropriate to apologise to Miss Taylor for the conduct of one of their managers and the impact that has had upon her.
- Miss Taylor suffered severe depression after leaving BT.
- The Tribunal described BT’s response as ‘woeful’.
How much in total will Sexual Harassment and inappropriate work-related conduct within BT have cost them? Consider the hidden costs; legal costs, disruption to business, management time, productivity issues, settlement fees and legal support, absenteeism, work-related stress, the costs of preparation in Petrina Taylor’s case, poor publicity and the £290K payout. In total, this conduct must have cost BT in the region of £2 Million.
Quote: Petrina Taylor complained about her ordeal at the hands of ‘dangerous’ sex pest boss Craig Alcock – but BT’s response was ‘woeful’, a tribunal ruled. Miss Taylor had to endure boss Mr Alcock ‘thrusting’ himself at her and here female colleagues and was warned by him that if she failed to land a deal he would perform a sex act over her. When she asked for time off to see her doctor over her contraception, he replied: ‘What are you telling me for? I’m not shoving it up you.’ Mr Alcock branded Miss Taylor’s team ‘sheep shaggers’ and ‘inbreds’ and described pregnant women as a ‘nuisance’. He talked about a female colleague’s breasts, called a pregnant employee a ‘lazy cow’ and when told another colleague was expecting, he replied: ‘Not another one’. Mr Alcock was also found to have been openly racist and homophobic. The case is truly astounding. What on earth was senior management doing while all this was going on?
The average sex discrimination award nationally was £13,911 and the average unfair dismissal award £8,924. Miss Taylor’s award included £165,692 for loss of future earnings, £20,000 for personal injury, £18,000 for hurt feelings and £3,000 for aggravated damages. BT had admitted to the tribunal that the harassment occurred and that they were liable for Mr Alcock’s conduct. Mr Alcock had moved across to work for BT in July 2008 when it bought a telesales business that then traded as BT Customer Street. Miss Taylor’s solicitor Jonathan Dyson, of law firm Wilkinson Woodward, said: ‘It is surprising that on acquiring the business in 2008 BT did not vet management more carefully. Had they done so, the damage suffered by my client could have been avoided.’
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