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Investigations: getting the balance right

We are reminded by a recent decision of the Employment Appeal Tribunal (EAT) that the purpose of an investigation should be limited to an investigation of the facts. It is important not to cross the line and move into decision-making territory. An issue that arises is whether recommendations about disciplinary action being taken can reasonably form part of the investigation. In addition, what information can be excluded?

In Dronsfield v. The University of Reading the claimant was a professor who was dismissed for gross misconduct after he had admitted to having a sexual relationship with one of his students. We wrote about this case as a result of it making the headlines in 2016 (re-read here). The claim has in fact been heard by both the Employment Tribunal (ET) and EAT twice.

According to the University’s governance rules, the professor could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”. The head of Dronsfield’s department, Professor Green, was appointed, along with an HR colleague, to jointly carry out an investigation to ascertain whether any such conduct had been established.  

Professor Green and his HR colleague drafted an investigation report and submitted it to the university’s in-house lawyer for review. Following the solicitor’s advice, Green omitted certain parts of the report that would have been favourable to Dronsfield’s case. These included Professor Green’s opinions that there was no evidence that Dronsfield’s conduct had been immoral, scandalous or disgraceful, or that it was an abuse of power or breach of duty.

The investigation recommended that disciplinary action should be taken.  Dronsfield was ultimately dismissed and appealed the dismissal, which was rejected. He then brought a claim for unfair dismissal on the grounds that the amendment of investigation report rendered his dismissal procedurally unfair. However, the ET found that the dismissal had been fair. Although the investigation report had been amended, the ET held that it fairly set out the investigators’ position and the amendments did not mean that it represented a false or incomplete position. The EAT also found that he had been fairly dismissed and, on appeal, the case was remitted to a fresh tribunal.

The fresh tribunal found that the dismissal had been fair as it was fair and reasonable for the investigators to rely on the advice of their solicitors and to omit any “evaluative opinion” in the report. The tribunal found that the report set out the investigators’ position fairly and the amendments did not render it false or incomplete. They found that such opinions should be left to the disciplinary panel and not be contained in the investigation report.

Although the university was ultimately successful in defending the claim against it, this case acts a reminder of the extent of conclusions that should be set out in an investigator’s report and what the investigator’s role is. The investigator should be limited to deciding whether or not there is a case to answer.  The case also referred to now fairly well settled law that HR’s advice in relation to disciplinary matters should be restricted to matters of law and procedure, rather than questions of answerability, which should be reserved for the investigating officer.

Investigators should be trained to ensure that they act within the scope of their role and need to understand what is being required of them. Disciplinary allegations should be narrowly drafted and the procedure to be followed when investigating matters needs to be clear.

To discuss training of investigation managers or a policy review, please get in touch with your usual Dentons contact.

Investigations: getting the balance right

Ponderings on philosophical beliefs

In August 2018 we blogged about the case of Gray v. Mulberry (re-read here).

As predicted, this case has now made its way to the Court of Appeal, which is hearing the appeal this week.

This is the first time that the Court of Appeal has grappled with the problematic area of philosophical beliefs.

What amounts to a philosophical belief is topical, with the Norwich Employment Tribunal finding last week that vegetarianism, whilst being something an individual could “genuinely believe in”, was not a philosophical belief for the purposes of the legislation. A different tribunal will consider the same question in respect of ethical veganism later this month.

Will the somewhat “tick box” criteria set down in Grainger plc v. Nicholson (decided at Employment Appeal Tribunal), with its often unexpected results, survive as the leading authority on this point?

The judgment is awaited with interest.

Ponderings on philosophical beliefs

References – to give or not to give?

There is generally no obligation on an employer to give a reference at all.  There are, of course, exceptions – for example, where unusually there is a contractual entitlement to a reference, or the employer risks victimising or discriminating against an employee by not giving one, or there are Financial Conduct Authority or Prudential Regulation Authority requirements which must be met. In some cases it may be said that an employer has a moral obligation to provide a reference. Either way, the employer’s policy on references must be consistent or it could lead to allegations of discrimination.

Who provides a reference?

References can be given on behalf of a business or in a personal capacity. An employer is legally responsible for the contents of a corporate reference because it is provided on its behalf.  It is therefore advisable to have a policy detailing who can give a reference, in what format and what information it can include. To ensure that a personal reference is not taken as a corporate reference, it should not be provided on headed notepaper or include the referee’s job title.

What information should a reference include?

A reference does not have to be positive, but it must be accurate and true. There is generally no requirement as to the content of the reference, but given the potential liabilities it is common (and usually advisable) for employers to simply give a short statement confirming the facts of employment, such as the relevant dates and the employee’s job title. More detailed references could include information such as the individual’s performance, or absence and disciplinary records. However, any comments about performance or absence should not be related to a disability and you should be mindful of data protection obligations and consent requirements. It is often advisable to provide a reference in writing rather than verbally, as there is less possibility of misinterpretation.

What happens if a reference is inaccurate or unfair?

If the subject of a reference believes that it is inaccurate or misleading and has harmed their prospects of future employment, it may be possible for them to sue their former employer for negligent misstatement or even defamation. The individual may also be able to take the employer (and potentially the organisation which is the recipient of the reference) to an employment tribunal if they think that the negative reference is a result of discrimination.

Employers often include disclaimers in a reference to exclude liability to the recipient for any inaccuracies, but disclaimers will only offer protection to the reference giver if they are reasonable.

Data protection 

The provision of a reference will generally involve the processing of personal data by an employer as a data controller and so, as with all personal data processing, will be subject to data protection principles. It is particularly important, when dealing with references, to have regard to data protection requirements when providing information in a reference about an employee’s health record or reasons for periods of absence, as this will be special category personal data for the purposes of the GDPR.

References – to give or not to give?

Are millennials really taking over our workplaces?

The Centre for Social Justice (CSJ) has this month published a fascinating report as part of its Future of Work research programme entitled “Ageing Confidently: Supporting an Ageing Population”. The CSJ is an influential independent think tank that studies the root causes of Britain’s social problems and addresses them by recommending practical, workable policy interventions. If your role involves driving progress towards equality and diversity in the workforce, this will be interesting reading.

The first section of the report looks at “demographic trends”. As you might expect with an ageing population, in the UK employment rates have increased for those aged 50-64 years old. The report sets out in some detail the impacts of these trends on different sectors, from public administration and defence to retail.

The demographic shift presents benefits and challenges to employers and the state generally. The report considers the effect of an ageing workforce on pensions and benefits, healthcare costs, unpaid caring, productivity levels, skills and technology.

“Without a fundamental change in employment culture and an increase in opportunities for older workers … individuals, businesses and the economy will suffer”, finds the report.

In terms of recommendations, the CSJ suggests that the Right to Request flexible working should be strengthened and should be a right for all employees from day one, rather than at 26 weeks (the Right to Request is due to be evaluated in 2019).

Further, there should be improved communication between employers and employees for older workers in relation to opportunities for workplace adjustments and training opportunities. Rather than focusing on “retirement support”, employers should consider these discussions as a tool to enable older workers to continue to work, if they so wish.

Other proposals include enhanced healthcare support, implementation of employee-tailored “Mid-Life MOTs”, the initiation of an “Age Confident” scheme and, potentially controversially, an increase in the State Pension Age to 70 by 2028 and to 75 by 2035.

The report can be accessed here.

Are millennials really taking over our workplaces?

Covert recordings: “For the times they are a-changing”

Almost everyone carries around with them a recording device nowadays, in the form of a smartphone or wearable technology.  Where does this leave HR managers and employers in dealing with employees who ask (or don’t ask as the case may be!) to record meetings?

The Employment Appeal Tribunal (EAT) has recently handed down its judgment in the case of Phoenix House v. Stockman.

Ms Stockman (a finance employee) had secretly recorded a meeting with HR during which she was told that she would be disciplined for having earlier interrupted a meeting about allegations she had made against her line manager. Ultimately Ms Stockman was dismissed as a result of an irretrievable breakdown in relationships.  The secret recording only came to light during her subsequent tribunal claim.

Without going into the details of the other findings of the Employment Tribunal (ET), it was found that Ms Stockman did not make the covert recording to try to entrap the company managers, but only because she felt flustered at the time. The impact of this finding was that she was still found to have been unfairly dismissed, but the ET reduced the compensatory award by 10%.

Phoenix House appealed against the ET’s approach to the covert recording of the meeting.  Its position was that, had it known about the recording, it would have dismissed Ms Stockman for gross misconduct and that she should not be entitled to any compensation on that basis.

Ultimately the EAT agreed with the ET, finding that Ms Stockman had not recorded the meeting with the intention of snaring her employer or obtaining confidential information (she had recorded a single meeting concerned about her own position) and that the tribunal had made a legitimate assessment of these facts and reduced the compensation accordingly.

The EAT made some interesting comments around covert recordings more generally.

The accessibility of a recording device being the first observation: “Times have changed … it is now not uncommon to find that an employee has recorded a meeting without saying so.” The EAT said that the reason for the recording must always be considered – this reason will not always be sinister or to gain a dishonest advantage, but will be relevant and, occasionally, justifiable. Importantly, the EAT rejected the employer’s argument that covertly recording a meeting will necessarily undermine the trust and confidence between employer and employee.

The culpability of the employee must also be considered – the EAT suggested inexperience could lead to an employee recording a discussion completely innocently? What about the content of the recording? If a note of the meeting would be shared in any event, then perhaps there isn’t (or shouldn’t be) a problem. This is contrasted with a meeting during which confidential information or information about others is disclosed.

The EAT’s concluding remarks pointed out that rarely does “covert recording” appear on a list of instances of gross misconduct in a disciplinary procedure and that this might also be pertinent. Indeed, there was no mention in the disciplinary procedure used by Phoenix House of such misconduct (even by the time the case was being heard by the ET, as pointed out by the EAT).

Going forward the EAT suggested, practically speaking, that it would be good employment practice for an employee or employer to say if there is any intention to record a meeting, save in the most pressing of circumstances – and it will generally amount to misconduct not to do so.

Covert recordings: “For the times they are a-changing”

Government consultation: “Health is everyone’s business”

The government has launched a consultation on ways in which government and employers can take action to reduce ill-health-related job loss in the UK.

Despite low unemployment figures, it remains the case that those who suffer from ill health face barriers entering and remaining in work. The government reported that although around 8 in 10 non-disabled people are employed, only five in 10 disabled people are in work, and disabled people are 10 times more likely to leave work following long-term sickness absence than non-disabled people.

The government is seeking views on a number of proposals which aim to encourage early action by employers to engage with and support employees with long-term health conditions, including:

  • A right for employees to request work(place) modifications on health grounds. Under the Equality Act 2010, employers are currently under a duty to make reasonable adjustments where an employee with a disability and is placed at a substantial disadvantage as a result of a provision, criterion or practice imposed by the employer, a physical feature of the employer’s premises or a failure by the employer to provide an auxiliary aid. The proposed change would allow employees to request that modifications are made even where the employee doesn’t meet the definition of disabled under the 2010 Act. The employer, unlike under the duty to make reasonable adjustments, would be able to refuse a request for workplace modifications on legitimate business grounds.
  • Reform of Statutory Sick Pay (SSP). The proposed changes would enable an employee returning from a period of sickness absence to have a flexible, phased return to work while still receiving some SSP and would see those who do not qualify for SSP (as they earn below the Lower Earnings Limit) receive a proportion of their wage as SSP. Additionally, there are proposals to increase the fines for failure to pay SSP where it is due, and the inclusion of the enforcement of SSP within the remit of a proposed new, single labour market enforcement body (see further commentary on the consultation in relation to this new body here.
  • Ways of improving the use of Occupational Health (OH) services by employers. The government is seeking views on ways to reduce the costs, increase market capacity and improve the value and quality of OH services.

The proposed measures aim to recognise the role that employers play in assisting employees with disabilities and health conditions to stay at work, and the importance of the employer taking early action. The consultation looks to measure the impact of the proposals on businesses, individuals and the occupational health profession. The views gathered during the consultation will inform government policy in this area. The consultation will run until 7 October 2019 and is available here.

Government consultation: “Health is everyone’s business”

Consultation on the establishment of a new single labour market enforcement body in the UK

Since the publication of the 2017 Taylor Review of Modern Employment Practice and the government’s subsequent Good Work Plan, we have been keeping you up to date with new regulations and proposals for implementing recommendations (earlier updates here and here).

The Good Work Plan news this week, against a backdrop of record levels of employment and growing wages,  is that the government has launched a consultation to consider the case for a new single labour market enforcement body.

The reason for the consultation and the potential new enforcement body arises out of the government’s recognition that “effective enforcement plays a vital role in giving individuals the confidence to challenge employers where they are denied their rights and it creates a level playing field between businesses”.  The proposed focus would be on protecting the most vulnerable workers’ employment rights.

The government’s vision is that a new single enforcement body could deliver extended state enforcement, a strong recognisable single brand, better support for businesses, pooled intelligence, co-ordinated enforcement action, more effective use of resources and closer working with other enforcement partners.

The government points out in the consultation briefing that other countries have taken steps to establish more streamlined inspectorate bodies, and in fact this type of body is recommended by the International Labour Organisation. International case studies are referred to and provide an interesting comparison. 

The proposal is that a new single labour market enforcement body would deal with the National Minimum Wage (currently enforced by HMRC); employment agency regulations (currently enforced by the Employment Agency Standard Inspectorate); umbrella companies; licences to supply temporary labour in high risk sectors e.g. agriculture and the fresh food chain (currently enforced by the Gangmasters Labour Abuse Authority); labour and worker exploitation; and holiday pay for vulnerable workers.  The government is also interested to hear views on whether the new body should play any role in the enforcement of Employment Tribunal awards.

The consultation closing date is 6 October 2019. The consultation can be accessed here. As usual responses are welcome online, via email or in writing.

Consultation on the establishment of a new single labour market enforcement body in the UK

Foretelling the future: when can you take into account future ability in recruitment decisions?

A recent case demonstrates the risk in considering an individual's future performance when making management decisions about them. It is a reminder that, when making assumptions about an employee's ability to perform a role, it is very important not to cross the line into making discriminatory decisions.
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Foretelling the future: when can you take into account future ability in recruitment decisions?

“Anything is better than lies and deceit!”

We are accustomed to hearing on an almost daily basis about “fake news”. What about “fake CVs”?

If an applicant lies during the recruitment process, either expressly or by omission, on their CV, job application or in other pre-employment information you could end up recruiting an employee you ultimately do not want or who is unsuitable for the job.

How to deal with a lying applicant will depend on the stage of the recruitment process and on the extent of the deception.

Before an offer is accepted

An offer can be withdrawn at any time before acceptance. So simply withdrawing the offer will be the easiest way of dealing with a lying applicant. It will be important to keep a record showing that the offer had not been accepted and clearly setting out the reasons for withdrawing the offer. This provides good support to defend the claim if the applicant subsequently alleges, for example, a discriminatory reason for the withdrawal of the offer.

After an offer is accepted

Once an offer of employment has been accepted, and any conditions of the offer have been satisfied, a contract of employment will be formed. Thereafter, unless the contract allows for summary dismissal in the circumstances, normally contractual notice will have to be given to terminate. Failure to do so may be a breach of contract, for which the employee can sue either in an employment tribunal or in the civil courts.

Dismissal without notice may be justifiable where the dishonesty is significant enough to amount to a repudiatory breach on the part of the employee. This is often referred to as gross misconduct and gives an employer grounds to treat the conduct as a breach of trust and confidence which brings the employment relationship to an end.

Offers should be qualified to make it clear dishonesty in the application process will have significant repercussions. It should be stated that the offer may be withdrawn at any stage after acceptance, and employment, if commenced, terminated with immediate effect, if any information given during the recruitment process proves to be substantially incorrect or dishonestly provided.

Once the applicant has commenced employment

Once employment has started, the usual rules around unfair and wrongful dismissal will apply. Though the employee is unlikely to have two years’ service,  automatic unfair dismissal (e.g. for reasons connected with pregnancy or whistleblowing), which does not require a minimum period of service, may still be argued by the employee. You will also have to be mindful of any applicable notice periods.

Again, depending on the level of dishonesty, the employer may be able to dismiss with or without notice. The dismissal should normally be treated as a conduct dismissal.

Where you suspect or identify information that appears to have been provided dishonestly we recommend that you speak with the applicant or new start about this to understand if there has been an error. However, an error of this kind may also be used to support a conclusion the person is just not a good fit for the role.

“Anything is better than lies and deceit!”

“Leaving no one behind”: the Equal Measures 2019 Gender Index

Equal Measures 2030 (EM2020) is an independent civil society and private sector-led partnership which envisions a world where gender equality is achieved, and every girl and woman counts and is counted. To achieve this EM2030 connect data and evidence with advocacy and action, helping to fuel progress towards gender equality. Partners include heavyweight organisations such as the Bill and Melinda Gates Foundation and  Plan International.

Earlier this month Equal Measures 2030 published it’s 2019 gender index which is very interesting to read and gives us useful data on the progress that is being made towards gender equality.  It is described as being the “most comprehensive tool available to explore the state of gender equality across 129 countries”.  If your role involves driving progress towards equality and diversity in the workforce, this is a useful resource to use to demonstrate where good progress is being made and where lessons can be learned. 

The index as it currently stands finds that nearly 40% of the world’s girls and women (1.4 billion) live in countries failing on gender equality.  The same number live in countries that “barely pass”. This is a challenging picture with 11 years to go until 2030.

The Index looks at gender commitments within the following sustainable development goals (SDG): poverty; hunger and nutrition; health; education; gender equality; water and sanitation; energy; work and economic growth; industry, infrastructure and innovation; inequality; cities and communities; climate; peace and institutions; and partnerships.

The Index ranks Denmark highest overall, with the UK in 17th place.

SDG 8 is “Work and Economic Growth”. EM2030 recognises the Gender equality in employment gives women more decision-making power and enhances family well-being: women will typically invest more of their income than men in the health, nutrition and education of their children. Finland leads in the areas of Work and Economic Growth. Finland, in particular, is noted as having reasonably strong public services and social safety nets.

EM2030 encourages us all to “harness the power of data for gender equality”. Their vision is that using data effectively and to influence campaigns will lead to real changes in gender equality laws, policies and budget allocations.

The report can be found here. Acknowledgment is given for reproduction of materials.

“Leaving no one behind”: the Equal Measures 2019 Gender Index