Friday, December 30, 2011

Worklife/Balance - Is Your Email Really Necessary?

The BBC reports that Volkswagen has reached an agreement with Unions in Germany to stop sending emails to its employees outside of work time.

Blackberry servers will be set up so that emails stop 30 minutes after a shift ends and do not restart until 30 minutes before the next one begins.

One does wonder how effective this will be in allowing people to have uninterrupted "me time" if their Line Manager has their mobile phone number.

This follows on from another BBC report which suggested that only 34% of employees were not intending to check their work emails from home over Christmas.

Whilst modern technology does offer people the flexibility to work from home the "flip side" of this is that it can lead to a situation where the boundary between work life and home life is blurred or disappeared and management and clients/customers expect an employee to be available 24/7, 365 days a year.

If someone is expected to be available to deal with work outside of normal office hours this has potential to give rise to disputes over holiday entitlement, whether the 48-hour maximum working week is being exceeded and even whether someone's pay equates to an hourly rate below the National Minimum Wage. Being bombarded with work outside of normal hours could also lead to constructive dismissal or workplace stress claims.

There will of course be some jobs where people have to be contactable in emergencies (but even then there will probably be few cases where it needs to be the same person who is available all the time) but in most cases there is a lot to be said for ensuring that employees are not expected to check their emails at ungodly hours, or are even positively discouraged from doing so for the sake of their quality of life.

Wednesday, December 21, 2011

Britain has still Got Talent and you still haven't got a Case!!

Last September I reported on how a "Britain's Got Talent" contestant had failed to convince an Employment Tribunal that she should be allowed to bring a disability discrimination claim against the companies that run the competition, Simon Cowell and Amanda Holden.

The Claimant, Miss Czikai, alleged that reasonable adjustments should have been made to the audition process to accomodate her disability (although it was unclear why her disability should have affected her ability to sing) and that she had been harrassed as a result of clips of her being posted on "You Tube."

The Employment Appeal Tribunal has now heard and dismissed her appeal.

The EAT held that the appeal was bound to fail. Miss Czikai had clearly and unambiguously withdrawn one of her Claims, and there was no basis upon which she could try to reopen it.

The Claimant's Claims were brought more than 3 months after the date when the events occurred and were therefore out of time. The audition was clearly a one-off event and more than 3 months ago. The posting of the clips of the Claimant on "You Tube" was held, perhaps (with respect) slightly more controversially to be a one-off act rather than a "continuing act" and time therefore ran from when the clip was posted rather than not beginning to run until it was taken down (if ever.) One might have thought it was arguable that the posting of a clip on "You Tube" will have a continuing effect of (potentially) harassing the subject rather than being a one-off act like a remark made to someone's face which is never repeated.

None of the Respondents was acting in a capacity that made the Claimant as a contestant on the show an applicant for employment and as such the Claimant could not bring herself within the Disability Discrimination Act 1995 (which was the legislation applicable at the time.)

The Employment Judge had been entitled to find that the Respondents had not in any event been aware that the Claimant had a disability and required reasonable adjustments to be made to the audition process.

In respect of the harassment Claim arising out of the You Tube posting, even if this had not been out of time, there was no basis for a finding that this had been done for a reason related to the Claimant's disability.

Apart from that, she had a really good case!

It seems unlikely that this one will end up in the Court of Appeal, but you never know...

Friday, December 16, 2011

Administrations and TUPE - A Connection with the Unforeseen

The Court of Appeal has upheld the decisions of an Employment Tribunal and the Employment Appeal Tribunal that the Chief Executive of a company was automatically unfairly dismissed for a reason connected with a transfer of undertaking.

Under the Transfer of Undertaking (Protection of Employment) Regulations 2006, a dismissal for a reason "connected with" a transfer is, subject to a very limited exception, automatically unfair.

On 23rd May 2008 Ultralon Holdings Limited went into administration. The same day Mr Baillavone and 43 other employees were dismissed by the administrators. The company subsequently went into liquidation. On 25th June 2008 the business and assets of the company were sold to Spaceright Limited.

Mr Baillavone brought a claim for unfair dismissal against Spaceright. If he had been automatically unfairly dismissed for a reason connected with the transfer of the business to Spaceright then the liability would pass to Spaceright (who would of course in any event be more likely to be worth suing than Ultralon.)

Spaceright denied liability. They said that as a sale of the business to a particular puchaser had not been in mind at the time of the dismissals they could not be said to be for a reason connected with the transfer. The Court of Appeal agreed that both lower courts had been right to reject this argument. The reason for the dismissal was to save costs.

The Employment Tribunal had found that the reason why Mr Baillavone had been dismissed was that it was felt by the Administrators that any purchaser would either be a company that already had a Chief Executive or would be a new venture that would want to appoint a Chief Executive from within the ranks of its own directors." It was also clear that the Administrators had continued to trade with the active intention of seeking to sell the business.

The Court of Appeal said that the Tribunal had to look at whether there had been both a dismissal and a transfer, because otherwise the relevant Regulation did not come into play. If there had been, then the Tribunal had to decide whether they were connected. As a matter of common sense events could be connected even if the occurence of one could not be foreseen at the time of the other. The Administrators here had achieved within 4 weeks what they had set out to achieve.

Some press comment has suggested that this will discourage Administrators from trying to save companies but, with respect to the Court of Appeal, the decision seems pretty clearly right. Here there was clear evidence that the expectation had been that there would be a transfer and that this was the reason why the Claimant was surplus to requirements. It does not by any stretch of the imagination mean that dismissals to genuinely save costs will always be unfair.

What it may do is encourage Administrators to ensure that they have applied thought to who should be dismissed and why and discourage blanket decisions to dismiss all or large numbers of employees.

Thursday, December 15, 2011

Emails - Be Careful who you CC in!

The Employment Appeal Tribunal has rejected an employer's appeal against an Employment Tribunal finding that an employee who resigned after inadvertently being copied into an email critical of her was constructively dismissed.

Jane Aspden was "UK Leader" for Hardie Grant, a publishing company.

In March 2010 the CEO of the parent company emailed the MD of a company with whom they had been planning to enter into a joint venture to inform him that they would not be going ahead. The email said, amongst other things:-

" The process has also led me to really question my own UK leader - but that is my problem. She is a really safe pair of hands, but we need an easier, more composed leadership, which we’ll get on to soonest. Obviously why this note is confidential.”

Very unfortunately indeed, forgetting that this paragraph was in the email the CEO forwarded a copy of it to Ms Aspden a few days later. The next day she spoke to him and said that she would not need to discuss the budget with him as clearly she was not going to be working there in 12 months' time. The CEO reassured her that he had no plans to dispense with her, but about a week later she resigned.

She claimed that she had been constructively dismissed on the basis that the email amounted to a breach of the implied term of mutual trust and confidence. The Employment Tribunal agreed and awarded her damages of more than £85,000.00.

Hardie Grant appealed to the EAT, who upheld the finding of unfair dismissal. The legal test was whether looked at objectively (regardless of the CEO's actual intentions) the email was likely to have the effect of destroying or seriously damaging trust and confidence. The Employment Tribunal had been entitled to find that it did. The EAT also reminded itself that the case law establishes that once there has been a breach it cannot be cured by the employer, so the CEO's subsequent reassurances did not assist the employer.

The one consolation for Hardie Grant was that the EAT found that Ms Aspden's compensatory award should be reduced to the (then) maximum amount then awardable in an "ordinary" Unfair Dismissal case of £65,300.00. The Tribunal had grossed up the balance over the tax-free threshold of £30,000.00 to avoid the Claimant in effect having tax deducted twice, but whilst this is permissible the statutory "cap" still has to be applied.

Even so, it was a very expensive mistake for Hardie Grant, especially when one considers the unrecoverable legal costs of the proceedings in the Employment Tribunal and the Appeal.

There can be a temptation to fire off emails in a conversational tone without remembering that these can create a permanent record, and to copy in all and sundry without thinking about how they will react. This case is a lesson to employers (and for that matter employees, whose off the cuff comments can leave them open to disciplinary action) to think before pressing "send" or "CC."

Tuesday, December 06, 2011

References - Not Worth The Paper They Are Written On?

Cross-Bench peer Baroness Deech has complained that the Data Protection Act has made University references worthless. She claimed (although she did not produce anything other than anecdotal evidence) that referees felt unable to give honest accounts of candidates because they can be seen by the subject of the reference using the Act.

She suggested that this problem also applied to references from former employers. Certainly during a radio debate on the topic yesterday I heard one employer expressing the view that they could not give someone a bad reference because this could lead to a claim for Unfair Dismissal.

That last comment is clearly wrong since the giving of a reference is not in any sense a dismissal, but the trend does seem to be away from employers putting their necks on the line by giving anything other than basic factual information out.

There is an urban myth that you cannot give someone a bad reference. This is not true. A reference which is bad can be given provided that a reasonable employer looking at the reference as a whole would consider it to be fair and accurate.

That being said, employers can find themselves "between a rock and a hard place." Say negative things and there might be a claim from an employee who loses their dream job as a result. Say unduly positive things (e.g. an untrue glowing reference for honesty)and there might be a claim from an employer who takes on someone you have sacked for theft and suffers loss when the employee makes off with the contents of the till. Even where a reference is given in confidence it must be assumed that the employee will be able to make a Subject Access Request under the Data Protection Act and obtain a copy.

What about saying nothing at all? Here you need to have a consistent policy. Doing one thing for one person and not for another could lead to discrimination claims. You also have to be wary of what you say, or choosing not to give a reference, when someone has brought a Claim against you or made allegations in connection with their employment - this could lead to victimisation or whistleblowing claims - and potentially unlimited damages.

Saying something off the record over the telephone? Fine, but if it comes out later this could lead to a Claim, and your duty of care extends to other statements you make about an employee and not just to references.

Small wonder many employers choose just to give an anaemic factual reference hedged about with disclaimers.

To summarise:-

  • If you choose to give references take care to ensure the contents are accurate and that you have documentary evidence that will allow you to justify any comments made if they are challenged

  • Have a clear policy within your organisation as to whether you give references, who can give those references and what they will consist of

  • Apply your policy consistently

Friday, December 02, 2011

Saline Contamination Allegations Nurse Sacked from Job

The BBC reports today that the Stockport nurse Rebecca Leighton, who spent 6 weeks on remand in connection with allegations of tampering with saline drips at Stepping Hill Hospital, has been sacked from her job.

The criminal charges, which were emphatically denied and were subsequently dropped, arose following a Police investigation into a number of allegedly suspicious deaths at the Hospital. Miss Leighton was never charged with actually causing the death of a patient.

The Nursing and Midwifery Council, who would have had the power to prevent her from working as a nurse, lifted a temporary ban on her but her employment has now been terminated by her employer.

The precise details of the reason for her dismissal have not been disclosed and presumably the decision will be subject to the right of appeal.

This is a useful reminder that the legal test for a fair misconduct dismissal is not whether the employee is guilty of the misconduct in question, and certainly not whether guilt has been proved beyond reasonable doubt. It is simply whether the employer genuinely believed in the employee's guilt and had reasonable grounds for that belief after carrying out a reasonable investigation. If this is the case then a dismissal will be fair provided that dismissal is "within the range of reasonable responses" to that misconduct, taking into account the seriousness of the allegation and any mitigating factors such as previous record and length of service.

Thursday, December 01, 2011

Metropolitan Police Pay The Price of Aggro!

The Employment Appeal Tribunal (EAT) has held that an Employment Tribunal made an error when it awarded a whistleblowing Police Officer £20,000.00 in aggravated damages.

DS Shaw complained to a superior officer that another colleague had obtained advanced notification of the questions to be asked at an interview for a promotion that the colleague had eventually obtained. This allegation transpired to be true. Despite this the colleague was still allowed to take the promotion and when everything came to light all that happened was that he was reinterviewed using different questions, and still got the job.

The colleague and the superior officer colluded to bring about a situation where DS Shaw was suspended and given notice of disciplinary proceedings for allegedly setting up a private business without permission. An inaccurate note was made on the computer by another senior officer months after the event falsely stating that DS Shaw's application for permission had been refused.

Ultimately the disciplinary action was withdrawn and DS Shaw remained in his employment, suffering no financial loss. He nevertheless claimed at the Employment Tribunal on the basis that the action against him was an unlawful detriment because of whistleblowing. (He also separately brought a claim for personal injury but we need not worry about that here.)

Not surprisingly the Claim in the Employment Tribunal succeeded. The Tribunal was highly critical of the (on the face of it appalling) conduct of his superiors. He was awarded £37,000.00, consisting of £17,000.00 for hurt feelings and £20,000.00 by way of aggravated damages.

The Metropolitan Police appealed to the EAT.

The EAT confirmed that damages for whistleblowers should be calculated in the same way as discrimination cases. This means applying the Court of Appeal's "Vento guidelines" to decide on the damages for hurt feelings. They reminded themselves that aggravated damages are not, like exemplary damages, to punish the Respondent but part of the compensation and need to reflect the aggravating factors causing injury to the Claimant.

On that basis the award of aggravated damages was excessive and was out of line with the awards in other cases in the past - there was only one where an award of £20,000.00 had survived after avenues of appeal had been exhausted.

Taking all of the relevant factors into account they decided that the right total award was £30,000.00 consisting of £22,500.00 for hurt feelings (i.e. an increase) and a reduced award of aggravated damages of £7,500.00.

The EAT accepted that it did not have the authority to change the well-entrenched practice of treating these as separate heads of damages, but did say that there would be a lot to be said for simply making one award for hurt feelings which included any aggravating factors. As a halfway house Tribunals should be encouraged to treat them both as sub-headings of "injury to feelings" in order to remind themselves that aggravated damages are not a punishment to the employer.

There was mention of the fact that the Claimant had spent £20,000.00 on legal costs to get to this stage and whilst the EAT evidently had sympathy with him on this they (with respect quite correctly) held that this could not influence their decision. The Rules did not provide for him to get his costs back from the Met in these circumstances and it would not have been right to increase his damages as a back door way of getting around that fact.

The case is reported here.