There have been a number of recent decisions, all with a practical impact on the conduct of disciplinary procedures.
Right to be accompanied
In Stevens –v- University of Birmingham, the High Court held there was a breach of the implied term of trust and confidence during an investigation concerning employee misconduct, when the employer of a clinical academic refused his request to be allowed to attend an investigatory meeting with a representative of a medical defence organisation. The employer's disciplinary procedure expressly referenced him having the right to be accompanied by a colleague or trade union representative only (as, of course, is standard). Notwithstanding that the employee had requested to be accompanied by someone other than a colleague or trade union representative, there was found to be a breach where this request was refused.
Fortunately, this decision does not mean that there will always be a breach where an employer refuses to allow an employee to be accompanied by their companion of choice. On the facts of the case, the disciplinary procedure was contractual. Usually it will not be. Further factors were that the employer was using an external HR consultant to conduct the investigatory meeting, meaning the Court took the view that the employee should also receive outside support, as a “counterweight”. Also, the employee had given a cogent and unchallenged explanation as to why there was not a colleague suitable to accompany him. Often these features will not be present. Following the decision, however, there may be a risk of a finding of breach of trust and confidence if an employee puts forward good reasons why the type of companion provided for within a disciplinary policy would not be appropriate, requests someone else attend in their stead and this is unreasonably refused.
Role of HR in supporting disciplinary processes
Ramphal –v- Department for Transport is a case regarding how far HR can go in advising managers investigating misconduct/conducting a disciplinary hearing as to the findings they should make. An investigation was launched into possible expenses misconduct. The manager carrying out the investigation sought support from HR, as a result of which, he amended his report, changing a recommendation of a finding of misconduct with the sanction of final warning to a sanction of summary dismissal for gross misconduct.
In these circumstances, the Employment Appeal Tribunal ("EAT") held that the Tribunal had erred in failing to determine whether HR had exerted “improper influence” over the decision to dismiss. The Judge indicated,
"an investigating officer is entitled to call for advice from human resources; but human resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction….. insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct”.
This decision will be a concern to employers. It is not at all unusual in practice for HR to make recommendations as to appropriate sanctions. The Judge, in support of his decision, referenced a previous Supreme Court case, London Mental Health NHS Trust v Chhabra. The judge indicated that Chhabra is authority that there is an implied contractual term that the report of an investigating officer must be "the product of" the investigator; i.e. their own work. It is arguable, however, that Chhabra should not be recorded as an authority for this and is of more limited application, given the specific facts of the case. Chhabra was a case involving a contractual disciplinary procedure which specifically set out the role of the investigator, and where an express undertaking had been given that the individual who inputted to the investigating officer's report would take no part in the investigation. Additionally, the Supreme Court in Chhabra indicated there was a breach because the amendment of the report was not, "within the agreed procedure".
No doubt, in practice, HR will continue to input to disciplinary process to include investigatory reports. Following the case, however, it is advisable that drafts of investigatory reports do not indicate significant changes as a result of HR’s input and, ideally, that those investigating/conducting disciplinary hearings, do and can be seen to make the appropriate decision. This is also advisable given that, ultimately, if it becomes necessary to defend a claim, these individuals would need to give evidence regarding decisions reached.
Who should consider an appeal?
This issue was considered by the EAT in Adeshina –v- St George’s University.
It was argued that dismissal was unfair because one member of an appeal panel was a mentor to the victim of one of the employee’s alleged acts of misconduct and another was a direct report of the manager who made the decision to dismiss.
In a helpful and pragmatic judgment, the EAT found that,
- in relation to the first point, it would be “both unrealistic and undesirable” to require an employer to avoid any such link.
- in relation to the second, whilst endorsing ACAS view that generally the person hearing an appeal should be more senior than the original decision maker, here it was not an issue as the panel also included staff that were more senior than the original decision maker.
Whistleblowing – Low Threshold for Public Interest Requirement
The statutory provisions regarding whistleblowing claims were amended in 2013 through the inclusion of a new requirement that, in order for an employee’s disclosure to be protected, the disclosure must be made “in the public interest”.
In Chesterton Global Limited –v- Nurmohamed the EAT had to consider the effect of this amendment. The case involved a director at Chesterton who made various disclosures alleging his employer had manipulated accounts, thereby reducing his entitlement to commission as well as the entitlements of over 100 senior colleagues.
The EAT upheld an Employment Tribunal decision that, on the facts of the case, the public interest requirement was met. The EAT indicated that, the appropriate test following the amendment to the legislation is not whether the disclosure in itself is in the public interest,
“but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest”.
Additionally the EAT held that,
“the public interest test can be satisfied where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable”.
This decision is bad news for employers who may have hoped the public interest requirement would reduce the scope for claims, but probably no surprise. The key point coming out of it is that the threshold for establishing the public interest requirement is a low one. To confirm, the point the EAT indicated,
“the words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications”.
There has been a growth of whistleblowing claims over recent years. This has particularly been the case in the financial services sector and other highly regulated sectors, (for example, health and education). A review of whistleblowing claims by the Charity Public Concern at Work published in May last year showed that the most common subjects of disclosures were discrimination and harassment, work safety and financial malpractice. No doubt in all these circumstances, an employee may often be able to credibly run an argument that they believed a disclosure to be in the public interest. This decision makes clear, therefore, that the public interest requirement is unlikely to significantly assist in stemming the flow of this type of claim.
Rights to access employee’s emails/personal internet usage
There was a lot of press coverage this month regarding the decision of the European Court of Human Rights in the case of Barbulescu. Contrary to a lot of the press coverage, this decision does not mean employers have free reign to review employees’ personal emails and/or internet usage. The facts of the case were unusual; firstly, because the employer had an absolute rule prohibiting use of its systems for personal communications and, secondly, because the court was satisfied that the employer had only accessed on the assumption that the communications reviewed related to work. Any review of emails/internet usage entails “processing of data” meaning account should be taken of the Employment Practises Data Protection Code issued by the Information Commissioner. This indicates that an impact assessment should be carried out prior to monitoring and that clearly private communications should not be opened/accessed. Barbulescu does not change this. Let us know if you want a fuller note on this decision.
Holiday Pay – how much can a sick employee carry forward?
One of the more challenging employment law developments of recent years for employers is the case law (European and domestic) which makes clear that an employee who has been absent through sickness continues to accrue holiday entitlement and even may be able to carry forward to subsequent holiday years. In Plumb –v- Duncan Print Group, the EAT considered two key issues. First, in order to carry over, is it necessary for an employee to establish that he/she was not able to take the leave entitlement in the current year because of their medical condition? Second, is there any limit on the period for which a sick employee can carry forward annual leave?
The answer to the first question is no; an employee is not required to demonstrate he/she was physically unable to take the leave because of their sickness. It is sufficient if the employee chooses not to take it because they were on sick leave. The answer to the second question is, fortunately, there is a limit; the EAT held that leave must be taken within 18 months of the end of the leave year in which it accrued.
The position on this could change as the case is being appealed to the Court of Appeal. It seems unlikely, however, that there will be any change on the first point which seems consistent with a previous Court of Appeal decision (Larner). One practical point is that if entering into a settlement agreement with an employee who has had significant periods of absence, it is important to ensure that the settlement agreement expressly references working time regulation claims.
Team Moves – Injunctive relief
The Court of Appeal decision in Willis Ltd –v- Jardine Lloyd Thompson Group is helpful to those seeking to defend against team moves in 2 respects.
- Firstly, it makes clear that a springboard injunction to stop poaching of further staff should not be refused on the basis that the damage has already been largely done; i.e. there have already been significant staff departures. The Court indicated that it will remain important to the injured party to retain remaining staff in order to build up its business again.
- Secondly, the Court indicated that an employing entity can also seek injunctive relief against the poaching of staff from other entities within its corporate group. In this case, employees of US subsidiaries.