News round up
Thank you for everyone who attended our recent seminar on 8 November, which we did in conjunction with Legal and General. Managing disability and long-term absence was again on the agenda and seem to remain a topic of interest for many businesses.
In addition, we are always talking about key legal developments, topical issues and what we are up to on our twitter account (@ClarionEmpLaw), so please follow us if you want to be kept up to date between our monthly newsletters.
In the meantime, here is our usual round up of key cases and legal changes over the last few weeks.
A problem-free office party
As an employer, you are vicariously liable for the actions of your employees that are carried out in the course of their employment. This can extend beyond the working day, and into social activities.
In Bellman v Northampton Recruitment Ltd  the employees were at a company Christmas party. When it had come to an end, the Managing Director paid for taxis to take employees to another location where they carried on drinking, with most drinks paid for by the employer. A discussion about an employee’s placement turned into an argument and the Managing Director gathered employees together to give his views. One employee argued, the Managing Director punched him and he fell and sustained brain damage. It has been ruled that the employer was liable for the injuries. The event was sufficiently closely linked to the work of the organisation (because it was a work event, and was being paid for by the employer) for it to be concluded that the Managing Director was acting in the course of his employment.
- As we get close to the season of office parties, remind your employees and, in particular, your line managers, that an office party is likely to be seen as an extension of work. This means that the organisation is responsible for the actions of the employees at the party.
- Consider whether you want to limit alcohol consumption at any parties – and think carefully before offering unlimited free alcohol.
- Consider whether there should be some members of the senior management at an office party who remain sober and who can take action should problems start to arise.
Employer was liable for data breach
Another case that has considered the liability of the employer is Various Claimants v WM Morrison Supermarkets plc . An employee working at the supermarket as an Internal Auditor was unhappy following disciplinary action that had been taken against him. He published the names, addresses, bank account details, salaries and National Insurance numbers of 100,000 employees online and also sent them to three national newspapers. He was subject to criminal proceedings and was jailed for eight years.
A number of the employees brought claims against their employer for breach of data protection legislation. The employer protested that it was the actions of a rogue employee, and that as soon as it became aware of what had happened it removed the information from the internet.
However, the Court of Appeal has upheld the earlier decision of the High Court. The employer is vicariously liable for the actions of its employees, and therefore it was liable for the leaking of the employees’ personal data.
- Remember that you are liable for the actions that your employees carry out in the course of their employment. This can also extend to anyone working on your behalf – which could mean that you are liable for the actions of any sub-contractors or other third parties who are doing work for your organisation.
- If you become aware that any of your employees have done something that is potentially damaging to your business, take action promptly and contact us for advice.
Our Commercial Dispute Resolution and Litigation Team have also written an article on this topic. If you’d like to know more about this case from the perspective of commercial disputes and vicarious liability, then why not check out this blog post from Partner David Williams.
To bake or not to bake?
We have recently had the Supreme Court ruling in the long running case of Lee v Ashers Baking Company Ltd and others . Lee is a gay rights activist and he had asked the bakery to make him a cake with the slogan ‘Support Gay Marriage’ on it. The Ashers are Christians and did not support gay marriage and therefore they refused to make the cake. Lee claimed sexual orientation discrimination.
Lee had won the case in the Northern Ireland County Court and Court of Appeal, but the Supreme Court has overturned the ruling. The Supreme Court has ruled that Lee was not refused the cake because of his sexuality. Rather, he was refused the cake because the bakery did not agree with the message that was being communicated. Whoever had ordered the cake, and whatever their sexuality, the bakery would still have refused to bake it. Therefore, this was not direct discrimination on the grounds of sexual orientation.
- For a discrimination claim to succeed it must be possible to show that the less favourable treatment that an individual has received is because of a protected characteristic.
- If the same treatment would have resulted, regardless of the protected characteristic of the individuals concerned, then it will not be discrimination.
- However, before rejecting a complaint, always talk to us to be sure that you are not facing a potentially valid discrimination claim.
Procedural correctness is crucial
In a potential dismissal situation, it is essential that you always follow the correct procedure. For a dismissal to be fair, there must be a fair reason and a fair procedure.
In Patel v Secretary of State for Work and Pensions  an employee had tweeted comments from his personal Twitter account which were seen as political and offensive. As an employee, working for a government department, he was expressly prohibited from making any public comments that were (or could be viewed as) political. However, he argued that the training he had received had made it clear that comments were allowed if there was no way that he could be identified as being a government employee (although he did admit the tweets were his and apologised for them).
The investigating officer did not look into what he had been told at the training event, did not review each tweet with the employee and did not give a clear reason for her decision to dismiss the Claimant. On that basis, the dismissal was unfair, as there was no actual evidence (at the time of the dismissal) that the Claimant had deliberately breached company policy.
- In a disciplinary situation you must investigate thoroughly. If an employee raises issues which might mean that disciplinary action would be inappropriate, you must explore those issues.
- If there is doubt over what the employee knew, or ought to have known, it is likely to be difficult to conclude that the dismissal is fair.
- When deciding whether to dismiss, take into account the attitude of the employee, and their previous behaviour.
Reasonable adjustments apply to psychological, as well as physical, impairments
If an employee is disabled, there is a requirement to make reasonable adjustments to assist that employee to work. This applies to both physical and psychological impairments.
In the case of Sheikholeslami v University of Edinburgh  the employee was a professor who had a number of complaints, which she alleged had not been properly advised. She became ill with stress and depression and went on sick leave. She never returned to work. Due to the complaints she had raised, her colleagues were told not to contact her, and that all communication should be through her solicitors. This led to her feeling more isolated and had a negative impact on her health. She was eventually dismissed on the grounds that her work permit was due to expire. The employer was found to have breached its duty to make reasonable adjustments.
- It is important to consider reasonable adjustments for both physical and mental illness.
- When considering reasonable adjustments, it is often useful to seek medical advice, because the impact of a disability will vary from individual to individual.
Take care if dismissing before a transfer
An employee cannot be dismissed due to a transfer of undertaking. If there is a need to dismiss an employee who would otherwise have transferred, it is essential to ensure that there is a reason that is not related to the transfer in any way.
In Kaur v H&W Wholesale Ltd  a transfer was taking place. Kaur had a difficult relationship with another employee, which had caused some conduct issues. At a meeting, she had with her employer she allegedly said that she did not want to transfer to the new employer. This was taken as an objection to the transfer and her employment was terminated. She argued it was not a formal objection and successfully claimed unfair dismissal.
- If an employee objects to a transfer of undertaking, it is essential to get the objection in writing. Ask the employee to be specific in this letter – saying whether they are resigning or not.
- If the employee will not write a letter setting out the objection or resignation, write to them instead. Set out in the letter what you understand the employee to have said and giving a deadline by which the employee must write to you and disagree with what you have written, if they want to do so.
A final word: Merry Christmas!
Is it too early to talk about Christmas? As the Christmas lights have been lit, we have decided it is allowed. This is our last newsletter for 2018 so we just wanted to say Merry Christmas from the Clarion Employment team. We hope everyone has a wonderful festive period (with no Christmas parties getting too out of hand!). We will be in touch in the new year with further updates and important developments.