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Barton V The Royal Borough of Greenwhich

Barton

v

The Royal Borough of Greenwich

Hello again, after last night’s election action we thought it would be best to keep this week’s case short and sweet.

The questions this week are:

Is it reasonable for an employer to instruct an employee not to make protected disclosures to third parties?

Can a phone call be classed as a protected disclosure?

Mr Barton, the Claimant, was employed by The Royal Borough of Greenwich, the Respondent, as a shop steward and health and safety representative. A colleague told the Claimant that his line manager had sent hundreds of work emails to her personal computer. The colleague believed that the emails contained personal information of numerous employees and that the manager’s personal computer did not have the same level of security protection as a work computer

The Respondent had a policy for whistleblowing and the Claimant went against this policy and raised his concerns to the Information Commissioner’s Office (ICO) before reporting it to his managers. However, the information his colleague had told him was completely inaccurate, his manager had only emailed 11 messages to her personal PC, all of which were password protected and none contained any personal information.

Upon reporting the matter to his managers the Claimant was instructed  to make any further disclosures to the Respondent rather than external parties as stated in the Respondent’s whistleblowing policy. The Claimant then proceeded to call the ICO to seek advice about this instruction from his managers.

Prior to these events the Claimant had also been given warnings for his conduct and had been on a final written warning for arguing with a manager. Furthermore at the same time as the whistle blowing incident the Claimant had sent an inappropriate letter to a client which had been deemed very offensive. The Claimant was dismissed for breaching his duty.

The Claimant went to tribunal with claims for unfair dismissal and victimisation due to being a whistleblower. The Respondent argued that both of his communications with the ICO weren’t protected disclosures as the first was false and the second no information was disclosed. They also argued the Claimant had not been victimised for making disclosures but had been fairly dismissed due to numerous disciplinary problems.

The Tribunal ruled that only the email that the Claimant sent to the ICO counted as a protected disclosure but the phone call did not. It also stated that his further communications with the ICO amounted to insubordinate behaviour and given his other disciplinary issues he was found to have been fairly dismissed.

The Claimant appealed the decision arguing that the instruction not to communicate with the ICO was unlawful. The EAT rejected the appeal because the second conversation with the ICO did not amount to a disclosure so it would not alter the outcome of the dismissal judgment, whether the instruction was lawful or not. It elaborated further by saying the instruction not to contact the ICO was legal as they had a whistleblowing policy and therefore the instruction not to make disclosures to third parties was reasonable.

So today’s lesson and in answer to the questions:

Yes, it is reasonable for an employer to instruct employees where to make disclosures to, providing they have a suitable policy and procedures for dealing with disclosures. If the employee is unsatisfied with how their disclosure is being handled it may then be fair for them to contact third parties.

No, in this case a phone call can’t be classed as a protected disclosure as no information was exchanged. If information was exchanged it would then be permissible as a protected disclosure.

Posted: May 8, 2015 by admin in Employment Tribunal, Unfair Dismissal

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Fox v British Airways

Welcome back! Case of the Week took a brief sabbatical last week due to our seminar commitments. However, it is back this week covering the somewhat morbid topic of death in service.

To compensate for no case last week there are three questions this week:

1. If an employee dies after being unfairly dismissed is the estate of the employee entitled to any death in service benefits?

2.  Can you dismiss a worker for medical incapacity if they are due to receive treatment for an injury which may allow their return to work?

3.  Does not allowing a disabled employee an extended time frame to appeal a dismissal amount to disability discrimination?

Mr Fox, the Claimant had worked for British Airways, the Respondent since 1988 as a Tradesman Refurbisher. In 1995 the Claimant was involved in an accident which left him with a broken back and hospitalised for 11 months. This serious injury unfortunately meant the Claimant suffered long lasting health problems which impacted on both his performance and attendance at work.

In 2008, it was accepted that the Claimant qualified as disabled and he was transferred to a more suitable role as a Data Entry Analyst. However, due to his injury, the Claimant developed a hip problem and was only able to work around half the days he was scheduled to. Initially it was expected that the Claimant would be unable to return to work.

The Claimant had a meeting with his management and they agreed that there were no suitable roles he could move to. The Claimant was told that if he was unable to return to work in 3 months then he would be dismissed. He was told he had seven days to appeal this decision.

After his appeal deadline the Claimant then found out that an operation on his hip might allow him to return to work The Claimant appealed his dismissal and his Union representative informed the Respondent that his operation would be after his dismissal date and requested this date be postponed. The Respondent also received a letter from the Claimant’s consultant confirming that if the operation was a success then the Claimant could resume work.

The Respondent declined the appeal and the Claimant was dismissed. Three days later the Claimant underwent surgery on his hip, however, he unfortunately passed away shortly after. The Claimant’s father bought tribunal claims on the basis that if Claimant had not been unfairly dismissed and discriminated against he would still have been employed when he died and therefore entitled to the death in service benefits.

The Tribunal found that the Respondent had fairly dismissed the Claimant stating that it was also fair to reject the appeal as it was made out of time and he had not applied for an extension. Lastly the ET stated that any award relating to the loss of the death-in-service benefit should not reflect the loss to the potential beneficiaries. Instead it should only relate to the comfort of knowing that the Claimant’s relatives would receive a lump sum insurance benefit on his death.

The Claimant’s father appealed this decision and the EAT upheld his appeal citing the lack of reasonable adjustments made in the appeal process as a disability discrimination making the dismissal unfair. It also stated that the death in service benefit should be awarded to the Claimant’s family. The Respondent appealed the latter point at the Court of Appeals, however, they agreed with the EAT ruling that the death in service benefit was a pecuniary loss.

To answer today’s questions:

Yes, if the employee has been found to be unfairly dismissed then the employee’s family will be entitled to their death in service benefits.

No, if medical evidence suggests they will be able to return to work between the decision to dismiss and the actual dismissal then the dismissal will be unfair even if at the time of the decision this medical evidence was not known to the employer. This could be applied broadly in many dismissal decisions and if contravening evidence comes to the employers attention between the decision and the dismissal itself then the employee has strong grounds for a claim.

Yes, if the employee’s disability makes it difficult to mount an appeal in 7 days then as a reasonable adjustment the employer should grant additional time.

For anyone who missed our seminar last week please click here ( http://dmtrk.com/t/2DH3-8LB7-KJ9GP-39B62-0/c.aspx ) to get copies of the handouts and slides.

 

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Posted: May 1, 2015 by admin in Employment Tribunal

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Drug Driving

Last month drug driving law was amended to make it easier for the police to convict drivers under the influence of both illegal and legal drugs. Previously the police had to show how a driver’s ability to drive had been adversely affected by drugs, whereas now the individual has to simply have taken drugs over the prescribed legal limit.

The usual suspects of illegal drugs such as cocaine, LSD and ketamine remain but the following prescription drugs have also been added, including; Lorazepam, Clonazepam, Oxazepam, Methadone, Temazepam, Diazepam, Flunitrazepam and Morphine.

As part of Health and Safety at Work Act 1974 employers are obliged to have suitable risk assessments for employees who operate vehicles either commuting to, or as part of their work. Now might be the ideal time to update any policies and procedures you have in place, or, if you do not have any, it may be worth introducing some.

For example conducting an assessment on employees returning to work after time off sick to make sure they are not currently taking any of the above drugs. If they are taking prescription drugs, make sure they are capable of commuting to work safely and know the legal limits. Furthermore, it may also be worth emphasising the legal, financial and reputational consequences that arise for both the company and the employee by driving under the influence of drugs.

If you think your business might be affected by this new law or would like a new or amended policy then please contact us ( emma@pjhlaw.co.uk?subject=Drug driving advice ).

Posted: Apr 21, 2015 by admin in E Learning

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Living Wage – A headache for employers?

The living wage has been something of a hot topic in recent months and this is unlikely to change as the election race heats up. For those of you who don’t know, the living wage is the amount of money an adult person needs to earn in order to cover the cost of living.

Currently the calculated living wage is £7.85 an hour, and £9.15 an hour in London. The minimum wage for an adult in the UK is £6.50, rising to £6.70 in October. The reason why the living wage has become such a contentious issue is down to the cost of living rising higher than wage inflation. This has led to many awareness groups being set up to force through changes in the minimum wage.

While many parties are offering to subsidise paying the living wage should they win the election many employers are already beginning to start paying it themselves. Some employers have also come under scrutiny for not paying the living wage. Premier league football clubs who pay top players hundreds of thousands of pounds a week received heavy criticism for paying other staff the minimum wage. As such many have now agreed to pay the minimum wage and all will do so by 2016.

Regardless of the outcome of the election the living wage is an issue your employees may raise with you and it is possible the minimum wage will rise to similar level in the near future.

Posted: Apr 21, 2015 by admin in Redundancy

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Election watch: Volunteering leave….?

Last month our newsletter had an employment law guide ( http://dmtrk.com/t/2DH3-852G-KJ9GP-31NQE-0/c.aspx ) to the general election. Since then numerous political parties have released their full manifestos. Every now and then manifestos contain policies that raise a few eyebrows, (UKIP and positive discrimination we are looking at you here). However, the Conservative Party may have announced the most interesting and quirky policy of the bunch.

The party has announced that public sector and employees at companies with more than 250 employees will be entitled to three days volunteering leave a year, paid for by their employer. While this may sound surprising a recent study by CIPD suggest that 39% of large employers already offer a similar scheme whilst an additional 23% also offer unpaid volunteer leave.

The policy does have its advantages, volunteering would allow staff to develop skills, network with similar professionals and also improve mental and physical health depending on the type of volunteering they do. However, it could pose logistical and financial challenges, particularly in the public sector which is already thinly stretched in terms of personnel and is facing further budget cuts.

Posted: Apr 21, 2015 by admin in E Learning

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Shared Parental Leave: Could your business be left holding the baby

It came into force on the 5th of April and if you haven’t read our previous posts (click here ( http://dmtrk.com/t/2DH3-852G-KJ9GP-31NQG-0/c.aspx ) and here ( http://dmtrk.com/t/2DH3-852G-KJ9GP-31NQH-0/c.aspx )) read the summary below.

New mothers remain entitled to 52 weeks maternity leave and 39 weeks maternity pay.  However, as from 5th April, a mother can share this leave and pay  (except for the first 2 or 4 weeks compulsory maternity leave) with her partner or father of the child.  This right applies to couples who are adopting, same-sex couples, co-habiting couples, and couples bringing up a child together even if the baby is from a previous relationship.

Parents can take the leave at the same time or divide the leave between them, the idea is it will allow greater flexibility for modern families. If that doesn’t complicate the matter enough there are a whole host of procedures both the employee and the employer need to carry out in order to qualify for shared parental leave. Furthermore there are repercussions should these procedures not be followed correctly.

We are hosting a seminar to address this issue. It will be taking place at The Cresset, Peterborough on the 24th April and tickets will be free. There will also be sessions on; Redundancy, Social Media, Holiday Pay and Early Conciliation. To book tickets or, to find out more, please click here ( http://dmtrk.com/t/2DH3-852G-KJ9GP-31NQI-0/c.aspx ). We look forward to seeing you there.

Posted: Apr 21, 2015 by admin in Age Discrimination

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Obesity – do employers know it could be a big problem?

In case you missed our October newsletter ( http://dmtrk.com/t/2DH3-852G-KJ9GP-31NQF-0/c.aspx ), the European court has ruled that obesity could be classified as a disability. It is estimated that 25% of the UK population is obese and like any form of discrimination the ruling does not exclusively apply to current employees but also potential employees involved in the recruitment process.

According to a recent survey of over 1000 employers, 45% of employers said they would be less likely to employ an obese applicant. Furthermore 61% of those surveyed said they would worry about an obese employee being less able or more likely to have time off sick in comparison to an employee who is a healthy weight.

Perhaps most alarmingly 26% of employers were unaware that unsuccessful obese applicants could bring a discrimination claim. Employers would also be obliged to make reasonable adjustments for obsess staff including reinforced chairs or healthy canteen options. If you are unaware or would like advice on how to handle potential issues arising from obesity then please contact us ( emma@pjhlaw.co.uk?subject=Obesity discrimination advice ).

Posted: Apr 21, 2015 by admin in Unfair Dismissal

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Nurmohamed v Chesterton Global Ltd

 

Welcome back, after a blustery start to the week we thought it appropriate that this week’s case is about whistleblowing. This case could be summarised by the words of fictional detective Father Brown, “one can sometimes do good by being the right person in the wrong place” – Bonus points if you spot the link!

Since the updated Public Interest Disclosure Act came into force in June 2013, any whistle blower making a disclosure must have reasonable belief that the disclosure is in the public interest. This may sound straightforward, but prior to this amendment employees could bring claims under this act even though the only member of the public interested in their disclosure was the employee themself.

In light of this information today’s question is; How many people have to be affected by an employee’s disclosure for it to be in the public interest?

Mr Nurmohamed, the Claimant, was a manager at estate agents Chesterton Global Ltd, the Respondent. In 2013 the Respondent introduced a new bonus and commission plan which the Claimant believed would significantly reduce his income.

Whilst comparing accounting records it came to the Claimant’s attention that the company had manipulated the figures. He believed there was a discrepancy of between £2-3 million in costs which had been misappropriated to give shareholders a higher dividend and managers (including himself) a smaller commission bonus.

He made protected disclosures to both his line manager and HR manager but was dismissed by the Respondent shortly after. The Claimant brought claims of unfair dismissal and victimisation discrimination due to the alleged protected disclosures he made.

Upon reviewing the evidence the Tribunal ruled that the Claimant had made protected disclosures to the Respondent because, despite his main motivation for highlighting the discrepancy being the size of his own bonus, the Claimant also had the interests of the 100 other managers in mind when making his disclosure.

The Tribunal also ruled that all disclosures are only of interest to sections of the public and that no disclosure is in the interest of the entire public. Therefore, a disclosure made in the interest of 100 managers was a sufficient amount of people to qualify as public interest.

The Respondent appealed this decision believing that the disclosure was done purely for the Claimant’s personal gain and that 100 people affected by the disclosure was not enough to make it a public interest. The EAT rejected the appeal agreeing with the Tribunal that 100 people was a sufficient amount of people to make a disclosure a public interest.

To answer this week’s question

A sizeable number of people must be affected by a disclosure for it to be in the public interest. This is a breakthrough piece of case law defining the term as at least 100 people, prior to 2013 one person was sufficient.  It is also worth noting that had the Respondent been a public limited company it would have been an even greater public interest as the company would have been on the stock market.

An additional take-away point that employers need to be wary of in all whistleblowing cases is that:

The two year length of service requirement does not apply so any employee can bring a claim.A dismissal in relation to a disclosure is automatically unfair.Any compensation award will not be limited by a statutory cap. Therefore it is important to tread carefully when any employee blows the whistle.

If you would like to know more about recent case law or would like to find out about the recent changes in employment law then we highly recommend you attend our free Employment Law Update ( http://pjhlawupdates.co.uk/t/2DH3-7ZSA-KJ9GP-2ZGW1-0/c.aspx ).

Posted: Apr 17, 2015 by admin in Unfair Dismissal

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Edge v Viridor Waste

 

Welcome back, we hope you’ve all had a good Easter break and eaten (delete as appropriate) a healthy / unhealthy amount of chocolate.

This week’s case, somewhat surprisingly went to the EAT after an employee was dismissed for lying about the extent of his medical condition to gain early medical retirement.

There are two questions this week:

Can an employer dismiss an employee for exaggerating a medical condition?

Does an employer need to make reasonable adjustments for an employee who has exaggerated their disability?

Mr Edge, the Claimant, had worked at Viridor Waste, the Respondent, for 26 years prior to his dismissal. The Claimant had had a long medical history of degenerative musculoskeletal disorders, this was exacerbated by a car accident which resulted in him being off work for a year and a half.

All the doctors who examined the Claimant thought that his condition would make him unable to work again and suggested early ill health retirement. They came to this conclusion as the symptoms the Claimant described, including; being unable to walk without crutches, needing to wear a neck brace and often being unable to get out of bed due to severe joint pain.

The doctor believed he would be unable to do any strenuous activity, including; lifting, climbing stairs and extended periods of walking. The Respondent was told it would have to fund the Claimant’s retirement.

The Respondent received information that the Claimant was carrying out activities inconsistent with the doctor’s notes and arranged for an investigator to carry out covert surveillance. The investigator recorded the Claimant walking unaided round a supermarket, bending down, driving a van, lifting the tail gate of a car, lifting heavy bags of shopping, and assisting an elderly gentleman into and out of a vehicle. The Respondent showed the DVD to the Claimant’s doctor. The doctor stated that the extent of the Claimant’s condition would not qualify for medical retirement.

The Claimant returned to work but complained about having to turn his neck to read a screen behind him. A request to move the screen in front of him was not carried out and the Claimant stopped coming to work. An investigation into the Claimant’s absences and the contrasting medical reports was concluded and the Claimant was dismissed for improper absences and giving inconsistent medical evidence. His appeal was dismissed and the case went to Tribunal

The Tribunal found that the Respondent had unfairly dismissed the Claimant because, despite carrying out an investigation, the Respondent did not have reasonable grounds for dismissal. A claim for wrongful dismissal was upheld. The Respondent was also ruled to have discriminated against the Claimant by failing to make reasonable adjustments for the Claimant’s disability.

The Respondent appealed this judgment citing that the Claimant’s exaggeration of his condition meant they had grounds to dismiss him for his unauthorised absences and for a breach of trust. They also appealed against their failure to make reasonable adjustments as the Claimant was not disadvantaged by their failure to make any because he was absent from work at the time and did not return to work long enough for them to make any.

The appeals for unfair and wrongful dismissal were upheld. The EAT ruled that the Tribunal’s decision must have been perverse due to the overwhelming DVD evidence that the Claimant exaggerated his condition. The appeal against the failure to make reasonable adjustments was also upheld finding that the decision not to make adjustments was made after the Claimant stopped attending work.

If you enjoy our blogs, or, would like to find out more about updates in Employment Law then please feel free to attend our seminar, Shared Paretnal Leave: Could your business be left holding the baby? ( http://pjhlawupdates.co.uk/t/2DH3-7NCE-KJ9GP-2ULD4-0/c.aspx ) The seminar will mostly cover Shared Parental Leave but there will also be sections on Holiday Pay, Social Media and minimum wage increases.

The answer to today’s questions are:

You can dismiss an employee for exaggerating their medical condition. Depending on the circumstances it could amount to gross misconduct or unauthorised absence.

Employers may need to make adjustments for employees who have exaggerated their condition, just because it has been exaggerated does not mean it is not real. A revised occupational health assessment would suggest what adjustments need to be made.

Posted: Apr 10, 2015 by admin in Employment Tribunal

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Henderson v General Municipal and Boilermakers Union

Henderson
v
General Municipal and Boilermakers Union

With not long to go until the General Election we thought it would be appropriate to cover a case that concerns political beliefs in the work place.

However, we must warn you that this week’s case is a real can of worms containing several questions:

- Are political beliefs protected characteristics?

-     Can an employee be fairly dismissed if they were discriminated against?

-   Is it acceptable for an employer to conduct disciplinary action against an employee who has an ongoing grievance?

Mr Henderson, the Claimant, was employed  by The General Municipal and Boilermakers Union (GMB), the Respondent, as a Regional Organiser for the London area. Part of the Claimant’s job involved undertaking political activities in co-ordination with the Labour Party, which GMB has strong links to and is a key donor.

In 2011 GMB members who worked at the House of Commons voted for strike action, this included a picket line outside the House of Commons. Whilst not responsible for calling the strike, the Claimant, as regional organiser was tasked with organising the strike for GMB.  The strike vote included a provision stating Labour MPs should not cross the picket line, something the Claimant publicised.

The provision for Labour MPs not crossing the picket line was picked up by several news outlets and political opponents of the Labour Party, who claimed the Leader of the party, Ed Milliband, was under the control of Trade Unions.

Shortly afterwards GMB received complaints from the Labour Party about the Claimant publicising the strike. The chairman of GMB then spoke to the Claimant, highlighting issues with the “over the top, left wing wording of his press release”.

The Claimant believed the picket line incident was a catalyst which resulted in him receiving unfavourable treatment from his managers, including being required to undertake onerous duties as a deliberate attempt to force him to resign and receiving unfounded complaints about his work on regular basis.

During this time the Claimant became heavily involved with his local Labour Party and had ambitions of becoming a councillor. However, a combination of a long commute, increased workload and increased political activity meant the Claimant was signed off work with stress.

The Claimant returned to work on a phased basis starting at four hours on alternate days. At the same time the Claimant began having issues with his local Labour Party and when questioned by fellow party member he cited his “onerous workload” as a reason for not returning calls.

The Claimant voiced his problems with the Labour Party to his manager. The manager noticed the workload comment and asked the Claimant to retract it, because, not only was it inaccurate due to the Claimant’s phased return to work, but it also reflected badly on GMB, who have strong connections with the Labour Party.

The Claimant refused and a heated argument ensued, the Claimant was threatened with disciplinary action due to insubordination, the Claimant replied “if you want to, do it” before storming out. The Claimant then made a request to work in a different location for the duration of the Olympics, this was rejected. The Respondent then became aware of the Claimant’s intentions to become a councillor, the Respondent felt they should have been informed of this as the role of a councillor would impact on the Claimant’s ability to fulfil his role with the Respondent.

The manager raised issues regarding the Claimant’s conduct. The Claimant, who was off work sick, raised a grievance with his manager for refusing his request to work outside of London during the Olympics, he also suggested that GMB and the Labour Party had colluded against him.

The Claimant refused to attend any meetings to address either his grievance or the disciplinary action. Despite his absence an investigation was carried out into the Claimant’s conduct and he was dismissed for gross misconduct on the grounds that he was unmanageable. The Claimant subsequently brought several claims to Tribunal.

The Tribunal held that the Claimant had been fairly dismissed for gross misconduct, this resulted in his claims for unfair dismissal, wrongful dismissal, victimisation and unjustified union discipline being dismissed. However, the Tribunal also found the Claimant had suffered direct discrimination and harassment as a result of his left wing political views, which were classed as a protected characteristic. The Claimant appealed his claims being dismissed and the Respondent appealed the discrimination and harassment judgement.

One of the principal decisions the EAT had to make was whether it was possible to be fairly dismissed and discriminated against. The EAT stated that there is no reason in why such a conclusion cannot stand if both judgements are supported by factual evidence. The Claimant’s appeal was subsequently dismissed.

However, the Respondent’s appeal was upheld, with the EAT citing a lack of evidence that the Claimant’s beliefs caused any discriminatory treatment or harassment. The EAT also clarified that all beliefs are equally protected and that philosophical or political beliefs may be just as fundamental to a person’s individuality and daily life as religious beliefs.

The lesson of today’s question is:

Yes, a political belief is a protected characteristic and is therefore something employers need be careful not to discriminate against.

Yes, an employee can be fairly dismissed and also discriminated against, providing there is satisfactory evidence to support both conclusions.

Yes, in some circumstances, if an employee with an ongoing grievance refuses to co-operate with an investigation it is acceptable to begin disciplinary action against them for another issue, providing you have given them opportunities to resolve their grievance.

Posted: Apr 2, 2015 by admin in Employment Tribunal, Religious Discrimination, Unfair Dismissal

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