We hope that you received the invitation to our annual Mock Tribunal, which is being held on Thursday 13 June at our offices in Leeds. This is a full-day event in which delegates will be able to see a full tribunal hearing unfold. The claimant and witnesses will be played by actors and will be cross-examinated by a barrister with a real employment judge delivering the judgement once all the evidence has been heard. More details on how to register are available on our website.
June is a busy month as our third HR Breakfast Club of the year is taking place on Thursday 27 June. In this interactive workshop, we will share tips on how to tackle challenging workplace behaviour and reduce the risk of employment claims. We will take you through the legal issues, and arm you with tips for managing employee companions, structuring disciplinary hearings and delivering decisions effectively. More details on how to register are available on our website.
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.
Written statement of initial employment particulars
At present, there is a legal requirement to issue a written statement of initial employment particulars to employees within two months of them starting work. However, there have been two changes to the law which will take effect from April 2020, so it is worth reflecting on these, and thinking about changes that you might need to make over the coming months.
Firstly, there will be a requirement to issue the statement on day one of employment. Secondly, the right to a written statement will extend to workers as well as to employees.
There are a number of steps that you should take over the coming months to ensure your compliance with the revised law:
- Review the written statement that you currently issue. There is a list of information that you must include, and you must make sure that you cover everything on it. If you are unsure what is on that list, please contact us for details.
- Review the process you have for offering employment. If you currently issue a full written statement as your offer letter, you will not need to make any changes. However, if you currently make an offer of employment with a letter highlighting the key terms, and then follow that up later with a full statement, you might need to review your processes. You will definitely need to review the processes if you do not currently issue the full statement on day one of employment.
- Review who is receiving the written statement. You must ensure that you are issuing the statement to both employers and workers. If you are unsure whether you need to issue a statement to someone in your organisation, contact us for advice.
Unfair dismissal for password sharing
A recent case has raised two important issues relating to unfair dismissal. In Chokski v Royal Mail Group Ltd , the employee was dismissed when obscene material was found on his online work account. He denied putting the material there, and said he had no idea how it had appeared. He admitted sharing his password with colleagues and said that this was common practice in the organisation.
At his dismissal, he was told that the password sharing was not sufficient grounds for dismissal but having obscene material on his computer was. So, he was dismissed. He appealed, and the manager hearing the appeal concluded that he could not be certain that the employee had uploaded the obscene material. However, he also concluded that password sharing was gross misconduct and therefore upheld the decision to dismiss on these grounds.
This was found to be an unfair dismissal. It is not fair to impose a harsher sanction (i.e. dismissing due to password sharing) at an appeal. The employee had specifically been told that password sharing was not sufficiently bad to warrant dismissal, and an appeal can lessen a punishment but not increase it. In addition, it was found that there was an insufficient investigation into who had uploaded the obscene material.
- If an employee appeals against a disciplinary sanction, a more severe sanction cannot be imposed, unless this power is expressly provided for in your disciplinary policy. Therefore, if an employee has been told that something is not sufficient grounds for dismissal, it cannot become grounds for dismissal at appeal without sanction.
- If, on the balance of probabilities, it is not clear that an employee did as alleged, it is very unlikely that a dismissal will be fair.
- Password sharing is not good practice and leads to weakness in data protection. Make it clear that it is not allowed in your organisation. If you view it as gross misconduct, make sure that employees are aware of this.
No need to wait for criminal proceedings
If an employee has done something at work that could lead to criminal proceedings being brought against him/her, you can, in some circumstances, still proceed with your own disciplinary procedures rather than wait for the outcome of the criminal process.
In North West Anglia NHS Foundation Trust v Gregg , the employee was a doctor who faced serious allegations relating to the deaths of two of his patients. These were the subject of possible criminal proceedings. Whilst the investigations took place, his right to practice was removed and he was suspended from work. He unsuccessfully argued that the employer should not proceed with its disciplinary process before the criminal allegations had been concluded. However, he was successful in arguing that his suspension should be on full pay, because the employer had no contractual right to withdraw his pay.
- If there are criminal proceedings taking place relating to something an employee has done, it is usually worth checking with the police before proceeding with your own disciplinary investigations. There might be good reason why you should wait before proceeding.
- An employee could be found innocent in a criminal court, but a dismissal could still be fair. This is because in criminal law there is a requirement to show that the individual is guilty beyond all reasonable doubt. However, for a misconduct dismissal, the employer just needs to show a “reasonable belief” that the alleged misconduct took place. This is a lower standard of proof.
Dismissal due to trade union activities unlawful
Dismissing an employee due to legitimate trade union activities will be automatically unfair, and an employee does not need to have any qualifying service to bring a claim of unfair dismissal. This was demonstrated in the case of Rogers v Picturehouse Cinemas Ltd . The employee was a trade union representative, and there was a dispute with the employer over pay and conditions of employment.
The employee suggested to colleagues that they should engage in ‘cyber picketing’ which involved reserving bulk blocks of cinema tickets meaning that the public was unable to buy them for an hour at a time. She did not discuss this idea with the full-time officials of the trade union. When the trade union heard about this, it did not support the approach, for fear it was illegal. The employee apologised but was dismissed. She successfully argued that the reason for her dismissal was her trade union activities, and therefore the dismissal was automatically unfair.
- Dismissing an employee for any trade union activities is potentially unfair, however, if it can be shown that the employee’s actions went beyond trade union activities and were actually gross misconduct, it could be fair, but check with us first.
- If employees do take action that you find unacceptable, contact the full-time trade union officials to try to resolve the situation amicably, and avoiding disciplinary action.
- An employee cannot be dismissed for taking part in lawful industrial action for the first 12 weeks of any action. After that time dismissal can be possible, but it must be fair. Check with us first.
Employer not liable for Christmas party injuries
As an employer, you are liable for the actions of your employees carried out in the course of their employment. In the case of Shelbourne v Cancer Research UK , the High Court has ruled that this must be interpreted sensibly.
In this case, a researcher, who was not employed by Cancer Research UK, attended the Christmas party. He was intoxicated and physically lifted three women on the dance floor. He then lifted Shelbourne, she fell, and she sustained a serious back injury. She brought a claim for damages against the employer.
The claim was not successful. Firstly, it was not liable for the actions of the researcher, as he was not an employee, and was not at the event carrying out any work on behalf of the employer. Secondly, the employer was not negligent. Reasonable safety precautions had not been taken, and it was not realistic to conclude that there should be risk assessments and training for all those at the party.
- This case does tell us that the burden on you at an event like a Christmas party should not be unrealistic. However, you should take reasonable care to ensure that any possible risks are minimised.
- You are liable for the actions of an employee in the course of their employment. Attending an office party is likely to be an extension of the ‘course of employment’ and therefore you are liable for the actions of your employees at such events.
Unacceptable training event
A recent case has raised an interesting issue relating to a training event. In Georges v Pobl Group Ltd , the employee was required to attend an equality and diversity training event run by her employer. During one activity in the training event, the attendees were asked to call out offensive racial terms, which were then written down by the trainer. There was then a discussion about how different people find different words offensive, and how it is important to be careful about terminology that is used.
The employee was the only black person in the room and was particularly offended by one word that was used. She successfully claimed racial harassment, despite her employer arguing that the word was used in a controlled environment to make a specific point about offence that can be caused.
- Make sure that anyone who is carrying out equality and diversity training in your organisation thinks carefully about the words and activities that they include. Make sure that there are no activities that are intended to shock to make a point.
- Do not let this case deter you from running equality and diversity training. It is a good reminder that the training is essential, because unintentional offence can be caused.
A final word: Mental Health First Aid course
Last week was Mental Health Awareness Week and it seems appropriate that we finish this month’s newsletter with a note about employee mental health.
According to statistics published by the Mental Health Foundation, almost 1 in 7 employees in the UK are experiencing mental health problems and 12.7% of all sickness absence days in the UK can be attributed to mental health conditions.
Most companies will have physical first aiders, but in many workplaces, there is no one trained to deal with mental health issues, leaving employees suffering from mental ill-health feeling unsupported and unable to speak up. At Clarion, we have three accredited Mental Health First Aiders and we are now looking to train-up more staff.
As a result, we will be hosting a Mental Health First Aid course at our offices in Leeds on 25th and 26th July and there are some additional spaces on the course for our clients and contacts.
The course is an internationally recognised and accredited two-day course, developed and run by Mental Health First Aid England. It is designed to raise the awareness of mental health and reduce the stigma surrounding mental health issues.
A two-day course cannot turn your staff into professional counsellors, just as a physical first aid course will not turn staff into doctors or paramedics. However, delegates will learn the practical skills, knowledge and confidence to recognise the symptoms of mental health issues. They will discover how to effectively support anyone experiencing mental distress and receive advice on how to guide those experiencing problems to seek appropriate professional help. Having Mental Health First Aiders will raise awareness of mental health issues in your organisation and allow employees suffering from mental health to speak up and hopefully get the help and support they need.
The cost is £130 per delegate for the two-day course. Lunch and materials will be provided, and delegates will finish the course with a full Mental Health First Aid accreditation.
Availability is limited, so if you want one or more of your staff to attend the course, please email Laura Courbet and we will book a place for you.
If you would like to discuss any of those legal issues, please contact the Employement Team.