Wednesday, June 18, 2014

Do You Have To Tell Your Employer Everything? - Or Guilt By Association

The Employment Appeal Tribunal has found that a School was entitled to fairly dismiss an employee who failed to inform them that she was in a relationship with a registered sex offender.

Appropriately for a case involving a School, it is entitled (as a result of an order for the details to be anonymised) "A and B and C."

A applied in January 2009 for the job of  Headteacher at a School. She got the job and started work on 1st September. In February 2009 the man with whom she was in a relationship was arrested in connection with allegations of making indecent photographs of children. He was convicted in February 2010 and placed on the Sex Offenders Register.

There was no suggestion that A knew about his activities prior to his arrest or that she was in any way involved in them. They did not and never have lived together although she did stay overnight at a house which she owned and which he occupied rent free.

At no stage did A make her employer aware of the arrest or conviction of her partner.

In June 2010 the local education authority became aware of the conviction and was told, wrongly, that A was living with the offender.

A was suspended and subsequently required to attend a disciplinary hearing. It was alleged that she had a duty to disclose the information to enable the School to comply with its safeguarding duties and that she was in neglect of duty.

She told the employer that she had taken advice from a Police Officer at the time of the arrest about whether she needed to disclose it to anyone and was informed that all that was needed was an enhanced CRB check. She had also made enquiries on a "no names" basis of various other authorities and had been told that since she was not herself under suspicion she was not obliged to disclose anything.

A was dismissed for gross misconduct and claimed Unfair Dismissal.

The Employment Tribunal found that the dismissal was unfair because there were problems with the appeal process. It held however that had the appeal been conducted fairly there was a 90% chance that A would have been fairly dismissed and that A had 100% contributed to her own dismissal. In other words whilst there was a technical unfair dismissal A received limited damages and in principle the employer was entitled to dismiss her in these circumstances.

A appealed to the EAT, saying that the Tribunal should have found that there was no duty of disclosure on her, and therefore that the dismissal could never have been fair and was not her own fault - so that she should not have her damages slashed to next to nothing.

Amongst her arguments was that her dismissal breached her right under Article 8 of the European Convention on Human Rights to respect for her family life. The EAT found that this did not really take the case any further as it had to decide whether the employer had acted reasonably in expecting her to disclose this private information and that was the essence of the Article 8 right anyway.

The EAT rejected the appeal. It found that the employer had a sufficiently clear disciplinary rule covering the situation. She had failed to disclose to her Governing Body a matter which might be relevant to their ability to assess any safeguarding issues.

They also noted that after the conviction A had sought a second round of advice from relevant people and had been advised in particular by a senior member of the Probation Trust that she should make the Governing Body aware of her relationship with the offender.

It could be argued that this is a harsh outcome. There is no suggestion that in fact A's actions endangered any child. The offender did not work with her or have access to children through her. It would be understandable if A was concerned that if she did disclose the facts then her own employment could be at risk through no fault of her own. On the other hand it reflects the degree of latitude that an Employment Tribunal will give employers in terms of deciding their own rules and for what conduct dismissal will be "within the range of reasonable responses."  

It should be borne in mind that this is a decision on its own facts and it is not authority for the proposition that an employer is entitled to know everything about an employee or that an employee is under an obligation to disclose everything that an employer might feel it wants to know about them (or their partner.)

Friday, June 06, 2014

Take A Break!

The BBC reports that the Chartered Society of Physiotherapy is encouraging employers to ensure that employees take their lunch breaks after research suggested that 20% of people work through their lunch.

Failure to have breaks can potentially lead to health risks including pain arising from not varying your position enough through to more serious consequences arising from fatigue and stress.

Workers have various legal rights to rest breaks.

As a general rule anyone working more than 6 hours in a day is entitled to a 20 minute rest break away from their "work station".

There should normally be at least 11 hours between the end of one working day and the start of the next and there should usually be 1 complete day off every week.    

Workers are also entitled to 5.6 weeks (which is 28 days for a full timer) paid annual holiday (which can include Bank Holidays) every year.

As these are health and safety rules derived from EU legislation employers should not simply be allowing employees to take breaks but positively ensuring that they do so. Evidence suggests that people who take proper breaks are actually more productive than those who do not so it makes sound business sense as well as avoiding the risk of potentially costs Employment Tribunal and Personal Injury claims.