We still have a few places left on our next HR Breakfast Club, which is taking place on Thursday 25th April. At the event, we will focus on why people are the driving force of success in any organisation. We will hear from Rachel Hannan, who will share some of her personal journey from growing her own businesses to investing in and supporting many others – and why she believes it’s all about the team.
We will hold our annual Mock Tribunal on Thursday 13 June 2019 at our offices in Leeds. This is a full-day event limited to 40 people (please note that there is a fee to attend). We will be sending the invitation very soon so keep an eye on your inbox!
We are always talking about key legal developments, topical issues and what we are up to, so please follow us (@ClarionEmpLaw) to be kept up to date between our monthly newsletters.
The government has entered into consultation about confidentiality clauses and the use of non-disclosure agreements, with specific reference to situations of harassment or discrimination. It is useful, therefore, to review how you can and cannot use confidentiality clauses.
You can put a confidentiality clause in a contract of employment, and it is certainly important to do this if the employee is going to have access to information that s/he must treat as confidential. If you have not been clear to an employee what information you see as being confidential, it will be extremely difficult to argue that the employee has breached confidentiality.
However, a confidentiality clause cannot stop an employee from making a protected disclosure (also referred to as whistleblowing). In addition, a confidentiality clause must not stop an employee from exercising the right to take a claim to an Employment Tribunal. The exception to this is when a confidentiality clause is part of a settlement agreement, and in agreeing to the settlement, the employee is agreeing not to pursue specific claims.
The government is now consulting over the possibility of:
- Banning confidentiality clauses, which stop an individual reporting or discussing potential criminal acts with the police.
- Ensuring that confidentiality clauses are included in the written statement of initial employment particulars, which should be issued at the start of employment.
- Requiring employers to make sure that it is clear to employees where confidentiality clauses do not apply.
We will see what the outcome of the consultation concludes, but in the meantime do think about the information that your employees have access to, and if it is confidential, make sure that you are protecting your business by the confidentiality clause in your contracts of employment. Contact us to make sure that the wording you are using is sufficient to give you the protection that you need.
Suspending an employee
The Court of Appeal has given its ruling in a very interesting case about suspending an employee. In London Borough of Lambeth v Agoreyo , the employee was a teacher who struggled to manage two children with behavioural difficulties. It was alleged that she had used physical force to control the children and she was suspended whilst the allegations were investigated. She resigned and claimed that the decision to suspend her was a breach of the implied term of mutual trust and confidence.
The Court of Appeal has ruled that there was not a breach of the implied term. It ruled that suspending an employee could be a breach of mutual trust and confidence, but it would not always be, and in this situation there was good reason to suspend the employee due to the seriousness of the allegations.
- In a situation of potential gross misconduct, do not automatically suspend an employee. Always consider whether there is a need to suspend, and only do so if there is.
- Examples of when it might be appropriate to suspend are when the employee might be able to destroy/change evidence, or when the allegations relate to actions that affect the safety or well-being of others.
- If you do suspend an employee make it clear that this is not a punishment and keep the suspension as short as possible.
- Unless your disciplinary policy allows for suspension without pay, a suspension should always be with full pay and benefits.
No requirement to re-examine earlier warnings
If you have given an employee a disciplinary warning, and then subsequently the situation leads to a dismissal, there is no requirement for you to go back and re-examine the earlier warnings.
In the case of Beattie v Condorrat War Memorial and Social Club and others , the employee was given a final written warning due to the loss of stock. She then refused to sell tickets for a function and was dismissed. Although there were procedural errors in the dismissal, the Employment Tribunal supported by the Employment Appeal Tribunal, concluded that she would have been dismissed anyway. The employee argued that the final written warning was not fair because her contribution to the stock loss had not been fully explored.
Her argument was unsuccessful. There is no requirement to re-examine earlier disciplinary warnings when reaching a decision to dismiss.
- Always allow an employee an appeal against a disciplinary warning. This will be the opportunity to check that a warning has been issued fairly.
- Once you have issued a disciplinary warning you do not need to check it again if you get to a dismissal stage. If you subsequently were going to go ahead and dismiss you would simply check that it was still ‘in date’ (i.e. the warning had not expired).
- If you are issuing a final written warning always make it clear, in writing, that the next stage of the disciplinary procedure is dismissal.
Defining "long-term" in the definition of disability
A disability is defined in the Equality Act 2010 as a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
"Long-term" is defined as lasting for 12 months; in medical opinion, the impairment lasts for 12 months or the illness is terminal.
In the case of Nissa v Waverly Education Foundation , the employee suffered from fibromyalgia. When she resigned, she brought a claim of disability discrimination but her employer argued that she was not disabled. Although, she did have symptoms of fibromyalgia, it was possible that her symptoms would improve when she was no longer in employment, therefore the Employment Tribunal concluded that it could not be argued that her disability was "long-term".
The Employment Appeal Tribunal has criticised the argument of the Employment Tribunal and the decision is to be reconsidered. When deciding if the impact of an illness is going to be long-term, the question must not be considered too narrowly. There is a requirement to be asked if it "could well happen" that the symptoms continue. If they could, then it can be argued that the situation is long-term.
- When defending a claim of disability discrimination you will need to get medical input. It is important that you ask the medical adviser if the individual is, in their opinion, disabled as defined in the Equality Act 2010 and you ask for their reasoning.
- If you have conflicting medical information talk to us so that we can advise on the best way for you to proceed.
Ensuring adequate rest
Under the Working Time Regulations 1998, employees and workers are entitled to a rest of at least 20 minutes after six hours of work, 11 hours rest in every 24 hour period and 24 hours of rest in every seven days.
The 20 minute break should be a continuous and uninterrupted period of time but those involved in key services such as gas, electricity, water and transportation (where services need to be provided continuously) are special cases, and here the employer needs to provide an equivalent period of compensatory rest. This means that the rest can be taken in a number of different parts, adding up to 20 minutes in total.
In Network Rail Infrastructure Ltd v Crawford , the employee was a signal box worker. He worked in five different signal boxes, and all but one were manned by a single person. He was unable to take a single 20 minute break, but he was able to take shorter breaks throughout the day. He argued that he was not getting his correct breaks, but was unsuccessful. Due to the nature of his work, there was no requirement to provide an uninterrupted break of 20 minutes.
- If you have a work situation where it is not possible to give employees their breaks, as set out in the Working Time Regulations 1998, contact us so that we can determine what you are required to do.
- You are not required to ‘police’ breaks and check that employees are taking them, but you should ensure that employees are able to take their allocated breaks.
Addressing allegations from customers
If a customer makes a complaint it can be more difficult to investigate than if a complaint comes from an employee. However, there is still a requirement to ensure that the employee is treated fairly, and that the investigation is as thorough as possible.
In Christie v Tai Tarian , the employee was a carpenter working for a Housing Association. A tenant alleged that he had made a number of homophobic comments whilst working on her property. He denied making the comments. There was an investigation, but there was no further questioning of the tenant (apart from when she had made the original complaint). The dismissal of the carpenter was found to be unfair.
- If a customer makes a complaint about an employee, you should investigate it in the way that you would investigate all complaints.
- If you are planning to take disciplinary action against an employee, based on a customer complaint, you must ensure that there is a strong foundation for the complaint. If it is difficult to question the customer further, consider whether there are other employees who might have witnessed what happened. If there are, make sure you also take witness statements from them.
Q&A - Victoria Clark, Senior Associate
1. What’s your favourite thing about working at Clarion?
The people and culture. I’ve been here eight years now, having trained and qualified at Clarion – it’s like no other law firm.
2. Where is your ideal holiday destination?
Anywhere on safari – I love an adventure. I had the best time at Kruger Park in South Africa a couple of years ago.
3. What did you want to be growing up?
I’m all about helping people and making a difference, so I always wanted to be a teacher. I’m lucky that my job at Clarion allows me to get the best of both worlds, through supporting my clients and running the HR Breakfast Club.
4. What makes you laugh?
My pets, Big Bill the tabby cat and Murphy the fox red Labrador pup. They’re so funny together, like Tom and Jerry!
5. What was your first job?
Cleaning toilets at a hotel in Leeds.
6. How do you like to spend a weekend?
Up a hill or by the water in the Lake District - I can’t get enough of fresh air and countryside views.
7. What’s the best piece of advice anyone has given you?
All you can ever do is your best.
8. What makes up your favourite meal?
King prawn and veg Thai green curry.
9. What scares you?
Butterflies and moths. The flapping! Ugh!
10. What three items would you take to a desert island?
That’s a really tough question! I love to read and rarely find the time so definitely a couple of books - one fiction and one survival guide. As much as I hate to admit it, I’d also be lost without my mobile phone.