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Employment Tribunal entitled to re-label decision to dismiss

n a recent Scottish case, the Court of Session has held that an Employment Tribunal (ET) was entitled to re-label the potentially fair reason for an employee's dismissal ascribed to it by her employer.
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Employment Tribunal entitled to re-label decision to dismiss

Could taking action on climate change result in disciplinary action?

Last week, people all over the world took part in mass rallies as part of a global climate change strike. We consider the business impact, and the employees' right to strike.
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Could taking action on climate change result in disciplinary action?

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?

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”

Update – Employer NICs on Termination Awards

On 25 April 2019, the National Insurance Contributions Bill was introduced to Parliament. The Bill deals with the national insurance contributions (NICs) treatment of termination payments made by employers to employees in connection with the termination of employment.
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Update – Employer NICs on Termination Awards

Disciplinary investigations: Common sense and even-handedness should prevail

In the recent Employment Tribunal (ET) case of Ball v. First Essex Bus Limited, the claimant, a 60-year-old bus driver who suffers from diabetes, has been successful in his unfair dismissal claim. He persuaded an ET that his dismissal for being under the influence of cocaine whilst on duty was both substantively and procedurally unfair. The claimant had failed a random drug test.
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Disciplinary investigations: Common sense and even-handedness should prevail

Taxation of termination payments: employer NIC charges further delayed to April 2020

In the 2016 Budget, the government announced that termination payments over £30,000 would be subject to employer Class1A national insurance contributions (NICs) from April 2018. Termination payments over the tax-exempt threshold of £30,000 are currently only subject to income tax. In the 2017 Budget, the government announced that this change would be delayed for a year and take effect from April 2019.

However, in the Autumn 2018 Budget earlier this week, the government announced that this change will be further delayed. Subject to any further postponements, employer NICs on termination payments over the £30,000 threshold will now become payable in April 2020.

Whilst most termination payments fall below £30,000, for employers this announcement will come as a welcome, albeit temporary, reprieve from additional costs in those cases where the tax-exempt threshold is exceeded.

Taxation of termination payments: employer NIC charges further delayed to April 2020

Does an employee waive an employer’s repudiatory breach by resigning on notice and continuing to work?

What happens if the employee asserts that he or she has been constructively dismissed but resigns on notice and continues to work? The High Court in Brown and others v Neon Management Services Ltd and another [2018] EWHC 2137 held that working a lengthy period of notice after resigning in response to a repudiatory breach can amount to a waiver of the breach and affirmation of the contract, such that the employee will not be released from his or her restrictive covenants.
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Does an employee waive an employer’s repudiatory breach by resigning on notice and continuing to work?

Kilraine v London Borough of Wandsworth [2018]

A recent case has considered the issue of what amounts to a protected disclosure. In Kilraine v. London Borough of Wandsworth [2018], the Court of Appeal guided Employment Tribunals in such cases to focus on determining whether there was a "protected disclosure" and whether the disclosed information, showed or tended to show that one or more of the six specified types of malpractice had taken place or was likely to take place – for example a breach of a legal obligation.
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Kilraine v London Borough of Wandsworth [2018]

Summary dismissal and misconduct

The recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust provides an interesting insight into the circumstances in which employers can summarily dismiss an employee for misconduct.
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Summary dismissal and misconduct