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2014/15 BUDGET HOW DOES THE 2014/15 BUDGET AFFECT YOUR BUSINESS?

COVERT RECORDINGS ARE YOUR EMPLOYEES RECORDING YOUR MEETINGS?

ZERO HOUR CONTRACTS WE LOOK AT THE DEBATE SURROUNDING ZERO HOUR CONTRACTS

EMPLOYMENTMATTERS www.employment-lawuk.co.uk | ISSUE APRIL 2014

DISMISSED FOR ILL HEALTH?

We look at the employment issues surrounding this sensitive subject

NEW FATHERS & PATERNITY LEAVE

A new survey reveals that 1 in 4 new fathers do not take parental leave

SICKNESS ABSENCE BY NUMBERS

We use the ONS’ latest statistics to look at the most common reasons for absences

BUDGET 2014/15

We review the 2014/15 and see how employers will be affeted

READY FOR 6TH APRIL? Are you ready for the changes coming on the 6th April? Find out how they will affect your business

FOCUS

April Fools - Harmless fun or grounds for dismissal?


contents EMPLOYMENTMATTERS EDITOR’S LETTER

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EDITOR LETTER

5

APRIL FOOLS

6

EMPLOYMENT UPDATES

9

WHY YOU NEED AVENTI

Richard Burnett comments on some of this month’s features & issues.

Harmless fun or grounds for dismissal? We look how four cases ended in dismissal.

Employment Solicitor Rachel Hughes looks at some of the changes coming into force in April.

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We give you 10 reasons why your business needs to Aventi Employment Solutions.

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Figures from the ONS reveal some interesting statistics on sickness absences in 2013.

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A survey reveals that 1 in 4 new fathers are not taking paternity leave.

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The government’s consultation on ‘zero contract hours’ debate.

Employment Updates For 6th April

SICKNESS ABSENCES

1 IN 4 NEW FATHERS

ZERO CONTRACT HOURS

14 2014/15 BUDGET

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EMPLOYMENTMATTERS • ISSUE APRIL 2014

We look at the key points from the 2014/5 budget delivered by the Chancellor.

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16 ILL-HEALTH DISMISSAL?

We look at how reasonable it is to dismiss an employee for ill-health.

2014/15 Budget

18 COVERT RECORDINGS

Are your employees secretly recording your meetings on their iPhone?

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EDITOR’S LETTER RICHARD BURNETT

by

Editor

EMPLOYMENTMATTERS

EDITORIAL & FEATURES

Welcome Welcome to the second edition of Employment Matters Magazine - a dedicated employment magazine written for employers and business owners. April Updates On the 6th April we will see several important employment law updates coming into force including increases in maternity and paternity statutory rates and in compensation awards.

EMPLOYMENTMATTERS • ISSUE APRIL 2014

April Fools

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No-one quite knows where April Fools Day comes from, but the day of pranks and practical jokes provides employers with a timely reminder of employee discipline. We look at four cases where jokes have ended in dismissal for the employees.

Employment-lawuk.co.uk T: 0845 366 4416 E: enquiries@law.uk.com

FREE Downloads Our website continues to be a valuable resource for employers with free employment guides and employment letter templates available to download. We’ve added three new guides and new letter templates this month. Some of the guides and letter templates you can download include: ll Gross Misconduct ll Employee Appraisals ll Planning an Interview ll Disciplinary Download them from: employment-lawuk.co.uk

Aventi Employment Solutions Murlain House Union Street Chester Cheshire CH1 1QP


APRIL FOOLS by

RACHEL HUGHES

Employment Solicitor

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pril Fool’s Day is an opportune moment to be reminded that what might be harmless fun for some employees may count as bullying or misconduct for others. We list some of the four worst prank and practical joke that have ended in dismissal:

April Fools

Harmless pranks or grounds for dismissal?

A Wheelie Bin Adventure

A Touch Too Far Another appeal to an Employment Tribunal has upheld when a manager at a telecommunications firm had allegedly attempted to touch another male colleague`s genitals at a work related social event. The Tribunal found that he was fairly dismissed for gross misconduct despite having worked for the employer for nine years and having an unblemished disciplinary record. The Tribunal made

the decision in part because of the employer`s comprehensive bullying and harassment policy, which the manager had breached. The manager was fully aware of the policy and was in fact responsible for informing the employees in his team about the policy.

Manager Bites Back A female council manager was suspended after claims that she bit a male colleague’s bottom so hard that he bled. The male employee, in his early twenties, was taken to hospital where he received a tetanus jab as a precaution. The incident was investigated when it was reported to the council’s union - Unison. The incident was thought to be the culmination of several office practical jokes.

Obscene Facebook Comments A customer service representative was dismissed after posting obscene comments about the promiscuity of a female colleague on his Facebook page. The employee appealed the dismissal at an employment tribunal arguing that his comments were intended to be a

‘joke’, adding that he had been unfairly dismissed and his human rights (under articles of the European Convention on Human Rights) had been violated. The tribunal turned down the appeal adding that his Facebook comments had contravened the company’s ‘dignity at work’ policy and had intended to create a humiliating work environment for the female employee.

The Cost of Practical Jokes Employers cannot afford to be complacent when it comes to practical jokes in the workplace. According to the Health and Safety Executive, harassment and bulling at work costs employers in the UK £2 billion in lost revenue from 80 million lost days each year. Employers are liable under the Equality Act 2010 for what their employees do and say and although they can successfully defend a claim for harassment, they need to prove that they have an effective ‘dignity at work’ policy and can show that they took practical steps to implement and follow those policies before the harassment occurred.

EMPLOYMENTMATTERS • ISSUE APRIL 2014

In June 2009, security cameras recorded a pub manager being pushed in a plastic wheelie bin by one of the pub’s female employees. The escapade ended in disaster when the bin came to a sudden stop and the manager - Mr Adamson fell out and injured himself. The next morning, a mysterious pile of broken glass, which the sore pub manager was unable to explain, was discovered near the customer’s entrance. The wheelie bin adventure was discovered on CCTV footage when senior management became sceptical about Adamson’s account of events occurring the night before. Disciplinary proceedings followed and the employee was dismissed for gross misconduct, a decision the dismissed employee appealed. The tribunal upheld the dismissal on the grounds that Mr Adamson had acted in a way that his employer was justified in removing its trust and confidence in him to run the premises on their behalf.

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EMPLOYMENT UPDATES

Employment Law Updates: 6th April Rachel Hughes takes us through some of the employment law updates coming into force on 6th April. Is your business ready for them?

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n the 6th of April there are several important law updates coming in force that will affect your business. Below is a summary of what you can expect:

Tribunal penalties for employers

EMPLOYMENTMATTERS • ISSUE APRIL 2014

For the first time, financial penalties will be introduced for employers who lose at tribunal on claims brought on or after 6th April 2014. It is important to note that it will be at the Tribunal’s discretion to impose a financial penalty on the employer; the amount of any penalty that the Tribunal chooses to award will be 50% of the compensation pay-out. This will be subject to a penalty of minimum £100 and maximum £5,000, with a reduction of 50% for early payment.

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Cases where the claimant is successful in bringing a number of different claims relating to the same act will be treated as a single claim. The compensation awarded to the claimant for each of these claims will then be added together and referred to as one award when considering any financial penalty and the minimum and maximum amounts (£100 and £5,000) proposed. However, where the claimant presents a number of claims which relate to different acts, each of these claims may be subject to its own penalty, and the above minimum and maximum amounts will apply to each separate penalty.

In cases where several workers bring a claim together against the same employer, each of these claims will potentially give rise to a separate penalty. In circumstances such as this, the minimum £100 penalty will apply to the amount of the penalties in total but the maximum £5,000 will apply to each of the penalties/claims individually. Penalties should be paid to the Secretary of State, alongside any compensation to be paid to the employee.

Compensation Awards The Employment Rights (Increase of Limits) Order 2014 comes into force on 6th April, which means there will be an increase in the maximum compensatory award for claimants of unfair dismissal from £74,200 to £76,574, subject to the

overarching limit of an individual’s annual salary. The change will also mean an increase in the maximum for a ‘week’s pay’, which will increase from £450 to £464.

Increase in Statutory Rates In addition to the above, Statutory Sick Pay will increase on 6th April from £86.70 to £87.55 and Statutory Maternity, Paternity and Adoption Pay will go up from £136.78 to £138.18.

Increase in Tribunal Fees The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 will come into force on 6th April 2014. The main effect of the order will be the re-classification of the below claims as


This update is to change what the government says is a mistake in the original legislation which categorised these claims as “Type A”, bringing with it lower fees of a £160 issue fee and £230 hearing fee. The Order also modifies errors in current legislation regarding the definition of “excluded benefits” relating to fee remissions.

Statutory Discrimination On 6th April statutory discrimination questionnaires will be eliminated. It is important to note that the change will not prevent those who believe they may have been discriminated against from seeking information regarding the discrimination against them. In cases where the employer does not provide sufficient information regarding the discrimination then the case could still go to tribunal which could, in some cases, result in a discrimination claim against the employer.

Companies will therefore need to be aware of legitimate requests which might fall into this bracket and could later be contained in letters.

Sick Pay Recovery Currently, under the Percentage Threshold Scheme, employers are permitted to recover a percentage of statutory sick pay if they have a relatively high level of sickness absence. However, as of 6th April, this option will be removed. This could be of significant importance to smaller employers however it is likely that such businesses will benefit from a new helpline advice service, which will accompany a state-funded employee health scheme, set to be introduced at the end of 2014.

Early Conciliation An initially voluntary process of Early Conciliation will be introduced on 6th April, meaning that all requests for conciliation through ACAS will be treated as Early Conciliation on or after this date. Although it is voluntary, employers should think ahead now and consider how they will respond to ACAS when they make contact, such as allocating a particular member of staff (perhaps in the HR team) as the key contact for these calls. Looking ahead to 6th May 2014, most claimants will be required to notify ACAS

before they are permitted to bring a claim to the Tribunal. ACAS will endeavour to then conciliate a settlement; however both parties will still be at liberty to decline participation in this process. All claims that fall within Early Conciliation will need a certificate from ACAS before the claim is processed by the Tribunal.

Immigration Fines to Rise At present, any employer who takes on an individual that does not have the right to work in the UK could face a civil penalty, on top of any criminal liability. This penalty is now set to increase and employers could face double the fine, with the current £10,000 limit now set to be capped at £20,000 per employee.

More Information There are many changes coming in on 6th April; if you would like some advice, contact our experienced team of employment solicitors today and we can talk you through the changes you will need to make. Visit our dedicated website www.employment-lawuk.co.uk for more information or call 08444 177 177.

Source: Practical Law Company, PLC 2014

EMPLOYMENTMATTERS • ISSUE APRIL 2014

“Type B” claims attracting higher fees (£250 issue fee and £950 hearing fee for a single claimant): ll Equal pay ll Sex equality in pension schemes ll Failure to inform or consult under TUPE ll Failure to allow compensatory rest under the Working Time Regulations 1998 ll Breach of the right to request time off for training

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AVENTI EMPLOYMENT by

RACHEL HUGHES

Employment Solicitor

01

Support: You will have unlimited access to specialist employment solicitors who can support all your employment and HR needs with complete and commercially sound legal advice.

10 Reasons

Why You Need Aventi Employment Solutions

02

Protection: Aventi’s unique Legal Expenses cover ensures that your business is protected from expensive tribunal claims.

aventi

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Improve Cash Flow: Aventi is a fixed fee service so you know exactly how much it is going to cost and can budget for the financial year knowing that all your employment and HR advice is covered.

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Save Management Time: Knowing that your Managers have the resource to resolve employment and HR queries quickly and professionally will allow them to spend more time focusing on the growth and improvement of your business.

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Compliance: Aventi will keep you and your documentation up to date with any changes and developments so you have all your ducks in a row! Aventi also offers health and safety support to ensure you fully comply with your H&S obligations.

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Personal Service: Aventi gives you direct and speedy access to a specialist employment solicitor who will take the time to get to know you and your business personally. Unlike other schemes Aventi does not have a call centre. Our Aventi Service is delivered by our technically excellent qualified employment solicitors.

®

LEGAL SOLUTIONS

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Insurance: Aventi’s unique Legal Expenses cover ensures that your business is protected from expensive tribunal claims. A key feature is that you are not compelled to take our advice about an issue to be covered by the insurance. The small print with other schemes says you must take advice every step of the way and follow the advice to have the full benefit of the insurance cover; with Aventi Employment Solutions we offer a pragmatic and commercial approach which allows you to run your business as you see fit and still have the benefit of the cover.

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Legal Privilege: We are solicitors therefore you will never need to disclose our advice in any court case or tribunal proceedings. Advice given by a non-solicitor or consultant is always subject to disclosure to a court, no matter how damaging the consequences to you and your business.

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No handcuffs: You will not be tied in to a long contract. We are so confident that you will benefit from our service and renew, you can take Aventi for just 12 months (unlike other schemes which require a 3 or 5 year commitment).

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Full Service: Our excellent reputation for quality service is supported by a full service Commercial Law Firm. As part of Hillyer McKeown LLP we can offer you access to the full range of commercial legal services to complement every aspect of your business, from buying and selling commercial property, to dealing with intellectual property issues, handling commercial disputes, preparing effective terms of business, debt recovery and everything in between. For more information visit: employment-lawuk.co.uk

EMPLOYMENTMATTERS • ISSUE APRIL 2014

T

his month solicitors Hillyer McKeown relaunch their fixed fee support service for employers Aventi Employment Solutions. We look at 10 reasons why your business needs Aventi Employment Solutions:

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SICKNESS & ABSENCE by

RACHEL HUGHES

Employment Solicitor

Sickness Absence by Numbers Latest figures from the Office of National Statistics reveal some interesting statistics on sickness absences during 2013

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igures released by the Office for National Statistics (ONS) have revealed some interesting statistics on sickness absence during 2013.

EMPLOYMENTMATTERS • ISSUE APRIL 2014

The ONS reported that in 2013, 131 million sick days were taken by employees in the UK. Some of the biggest reasons included:

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ll 31 million days of sickness absence were taken in 2013 as a result of back, neck and muscle pain. ll 27 million days were lost as a result of minor illnesses, such as colds. ll 15 million days of absence were taken due to mental illness, such as stress, depression and anxiety.

The Gender Divide ll Women were more likely to be absent from work than men ll Men lost 1.6% of their hours as a result of sickness in 2013 ll Women lost 2.6% of their hours to sickness.

Businesses Most Affected

Sickness absence rates were lower in the private sector in the past year but the gap has narrowed between the public and private sector over the last 20 years. In an analysis of the larger public sector organisations, the health sector saw the highest rates of sickness. Managers, directors and senior officials are less likely to take absence due to sickness, according to latest figures.

The caring and leisure industry was hit hardest by sickness absence in 2013 - 3.2% of hours were lost in 2013.

Sickness Absence Letters

The ONS identified that these sectors are predominately made up of women, who are more likely to take sick days than men.

Download a sickness absence template letter free from Employment-lawuk.co.uk. The letter invites an employee to a formal meeting to discuss a long period of sickness.


PATERNITY LEAVE by

SARAH LOWE

Features Editor

1 in 4 New Fathers Aren’t Taking Paternity Leave A survey by the Institute of Leadership & Management (ILM) reveals 1 in 4 new fathers aren’t taking paternity leave

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ast month, the BBC reported that a quarter of new fathers aren’t taking paternity leave because of a lack of support from employers, according to a new study. The research, which was conducted by the Institute of Leadership & Management (ILM) and surveyed employees and managers, suggests that “ingrained” attitudes amongst employers are to blame, with new fathers unsure if they can afford to take leave. Just 9% of those surveyed said they received more than two weeks full pay on paternity leave.

Charles Elvin, chief executive of the ILM, said: “The introduction of shared parental leave is a crucial step towards enabling more women to progress into senior roles, yet our research revealed cultural barriers are impeding the uptake of both two weeks statutory paternity leave and additional paternity leave.” Mr Elvin said a “cultural expectation” remained within organisations, in that women rather the men are the ones expected to take the extended leave. As it stands at the moment, employed fathers are permitted to take either one or

two weeks’ paid paternity leave, however additional leave is given if the child’s mother goes back to work and isn’t claiming statutory maternity pay. Last month, BBC Radio 5 Live heard from Alex Jackson, head of policy at the Forum for Private Business, who said that whilst parental leave is accepted by smaller businesses, issues arise in how the company replace lost skills and if businesses choose to outsource to agencies or spend time training up staff from other teams to cover the absence. Justine Watkinson, Partner and Head of Employment Law at Hillyer McKeown, said: “This is an area of law that affects many fathers and demonstrates that whilst the government may have

legislated to give fathers, in principle, the right to take time off after the birth of their baby, if employers frown upon this and or do not positively encourage this type of behaviour at grass root levels then the legislation will not change habits. “Ultimately employers who encourage positive and supportive flexible family friendly policies will be the ones who see the best returns from their employees,” Justine continued. “Employers who do this will find that their employees will be more supportive and engaged and will go that extra mile for the business.”

More information: Employment-lawuk.co.uk

EMPLOYMENTMATTERS • ISSUE APRIL 2014

The Government announced plans last year to allow parents to share their maternity and paternity leave from April 2015, but the ILM said these latest findings suggest planned changes could have a limited impact if the attitudes of employers are not addressed as well.

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ZERO HOUR CONTRACTS

The subject of zero

hour’s contracts is a tricky one. Clearly these contracts have benefitted both employers and employees during difficult trading times

Justine Watkinson takes us through the latest on the debate on Zero Hour’s Contracts

EMPLOYMENTMATTERS • ISSUE APRIL 2014

The government’s consultation on zero hour’s contracts, which launched in December 2013, has received more than 30,000 responses and prompted several statements from key employment organisations.

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The consultation, which closed on 13th March 2014, set out to identify the issues associated with zero hour’s contracts and assess the advantages of using them from the view of both the employer and the individual. The consultation invited views on potential options for the government and employers and has since seen responses from ACAS and CIPD. ACAS, who along with the CIPD has published its full response to the consultation online, has commented that

exclusivity clauses in the contracts are likely to damage relations between the employer and the employee, and calls for new guidance to be issued on the contracts. It suggests that doing this will ensure that both employers and employees are clear on their working arrangements from the start.

ACAS added: “Our response today recommends new guidance on zero hours contracts so that both employees and employers are very clear on the working arrangements they are agreeing to. We also feel that more research is needed into the use of contractual arrangements in certain sectors of the economy.”

ACAS states: “We believe that zero hours contracts with exclusivity clauses where there is no guarantee of work are likely to have a negative impact on employment relations.

The organisation suggests that workers on zero hour’s contracts develop a deep rooted ‘effective exclusivity’ as a result of their inconsistent hours and are afraid of turning down hours or raising questions about their employment rights for fear that their hours are reduced or worse, withdrawn. ACAS suggest this uncertainty “can be very damaging to trust and to the employment relationship.”

“But an analysis of calls to our helpline shows that workers on any type of zero hour’s contract feel a wider sense of exclusion too”.


CIPD, on the other hand, has gone a step further in its response to the consultation and recommends that the government put forward a complete ban on exclusivity clauses in zero hour’s contacts unless the employer can demonstrate that there is a “compelling business reason” for this type of contract to be in place. Ben Willmott, Head of Public Policy at CIPD, said: “We are recommending that exclusivity clauses should be outlawed unless there is a justifiable and compelling business case for them to be used, for instance where an employee working for a competitor may result in the loss of commercially sensitive or valuable information. “The nature of zero hours employment means that some people on these arrangements might have more than one job and so it is unfair for employers to require that zero hours staff can’t work for other organisations when they cannot provide work, except in very specific circumstances. We’d also like to see workers who have been working for an employer for 12 months or more given the right to request a minimum number of working hours per week.” Justine Watkinson, Partner and Head of Employment Law at Hillyer McKeown, comments: “The subject of zero hour’s contracts is a tricky one. Clearly these contracts have benefitted both employers and employees during difficult trading times over the last few years but as the economy improves and employees gain more influence due to supply and demand, these contracts will fall out of favour. This will particularly be in relation to exclusivity clauses which do inhibit employees’ rights to take a number of different positions and in principle do push the boundaries. It will be interesting to see how the Government responds to this issue over the next few months.”

More Information If you have a question about zero hour contracts then get in touch through our website employment-lawuk.co.uk or email enquiries@law.uk.com.

As the economy improves and employees gain more influence due to supply and demand, these contracts will fall out of favour.

EMPLOYMENTMATTERS • ISSUE APRIL 2014

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2014/15 BUDGET

The 2014/15 Budget: Key Announcements for Employers On 19th March, the Chancellor of the Exchequer delivered the 2014/15 Budget, bringing with it several changes that will affect employment law.

EMPLOYMENTMATTERS • ISSUE APRIL 2014

Changes to Pensions

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Major changes were announced regarding how members of defined contribution (DC) pension schemes will be able to access their pension savings. From April 2015, those at the standard retirement age will be eligible to access pension funds in full and not need to purchase an annuity. They will be taxed at the marginal tax rate, rather than the 55% rate currently applied. Transitional measures to allow immediate flexibility, primarily by increasing the maximum annual withdrawal cap to 150% and increasing commutation limits, will take effect from 27 March 2014. A wider consultation on the changes was also launched, including proposals to raise the normal retirement age to 67 in 2028. Also announced were wider powers for HMRC to combat pension liberation schemes including the requirement, from 1st September 2014, that any scheme administrator is a “fit and proper person”, and that HMRC may de-register a scheme where it appears that the main purpose is not to provide authorised benefits.

Dual Contracts The Finance Bill 2014 will combat the use of artificial dual contracts by non-domiciled employees. However, following consultation there will be some technical changes to the draft legislation. These proposals were published for consultation in January 2014. Following the consultation, the government has decided: ll To exclude dual contracts that are not motivated by tax avoidance ll To exclude directors who own less than 5% of their employer’s company’s shares ll To exclude income which was earned before 6th April 2014 ll To take account of employments held for legal or regulatory reasons ll To reduce the threshold in the comparative tax rate from 33.75% to 29.25%

These changes should target the new rules more closely on dual contracts that are created for tax avoidance rather than commercial purposes.

Apprenticeships There will be an extension of the Apprenticeship Grants for Employers scheme, providing grants for employers for an additional 100,000 apprenticeships by 2015-16.

Occupational Health Treatment The government will introduce a tax exemption for amounts up to £500 paid by employers for medical treatments for employees. This was first announced in the 2013 Budget and is expected to become available in October 2014, to coincide with the introduction of the Health and Work Service.


The government has published in this year’s budget that amendments will be made by the Finance Bill 2015 to the calculation of the value on which employees who have a company car available for private use will be taxed. For cars emitting more than 94 grammes of carbon dioxide per kilometre, the percentage of the list price treated as a benefit will increase by two percentage points per additional 5g up to a maximum of 37 per cent in 2017-18 and 2018-19. The scale of applicable percentages, which is based on carbon emissions, is set out in section 139 of ITEPA 2003. The Finance Bill 2014 will amend this section and introduce the following rates for 2016-17: ll 0-50g : 7% ll 51-75g: 11% ll 76-94g: 15% ll Over 94g: 17% +2% for every additional 5g up to a maximum of 37%. For 2017-18 the differential between the bands will decrease to 3% and for 201819 it will be 2%. The government is also extending the support for zero emission vans by

providing incentives through the level of the van benefit charge. For 2015, the fuel benefit charge multiplier for both cars and vans will increase by the RPI and will be determined in September 2014.

New Childcare Scheme The government has confirmed that a new tax-free childcare scheme will be launched in autumn 2015. The scheme means that working families will be eligible to claim 20% of qualifying childcare costs for all children under 5 (and children with disabilities under 17) and will be available to children under 12 in the first year of the scheme’s operation. To be eligible, parents in the household must be “in work” and earning on average £50 per week, however there will be allowances for certain workers. Claims will be capped at £2,000 per child per year but if one family member is an additional rate taxpayer, the family will not be able to participate. The new scheme will replace the current employer-supported childcare schemes. Employees registered for employer-supported childcare before the commencement of the new scheme

will be able to continue to participate in the employer schemes for as long as the employer offers it, or may switch to the new scheme. Once the new scheme has commenced, employer-supported schemes will be closed to new entrants. A working family will not be able to participate in both an employer-supported scheme and the new scheme. However, the provision of workplace nurseries by employers will not be affected by the introduction of the new scheme and families will be able to benefit from both. The new scheme will not depend on participation by employers but employers may have some limited involvement if they wish (for example, in an information or payment provider role). For more information on these changes, please contact our employment team through our website www.employment-lawuk.co.uk.

Planning For 2014 Make sure you start the new financial year aware of changes in the law and your obligations as an employer. Join Aventi Employment Solutions and never miss an update. Visit Employment-lawuk. co.uk to see how little membership to Aventi can cost. Content sourced from uk.practicallaw.com

EMPLOYMENTMATTERS • ISSUE APRIL 2014

Related Fuel Benefits

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DISMISSALS SARAH LOWE

by

Features Editor

When is it Reasonable to Dismiss an Employee for Ill-Health? We look the law surrounding long term illness after an employee was dismissed for taking 272 days off work suffering with stress & depression

EMPLOYMENTMATTERS • ISSUE APRIL 2014

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man, who was employed for 35 years by Dundee City Council in their contracts services department, was repeatedly signed off sick for eight weeks at a time by his doctor and the occupational health assessment services (OH) throughout his absence; the OH stating that he was on the correct treatment but was seeing no improvement in his symptoms.

The man brought a claim in the employment tribunal for unfair dismissal, seeking reinstatement. The tribunal ruled that he had been unfairly dismissed, stating that the employer hadn’t conducted a sufficient investigation into his health and that a further medical report should have been obtained regarding the prospect of his return. There was a duty to conduct a more thorough investigation, the court said, given his length of service.

In June 2009, the council asked if the OH could give a report written by a doctor rather than a nurse, as they felt the occupational health reports were formulaic and gave no clear indication of the man’s progress. The OH did not receive or action this message and so when the next assessment took place in July 2009, it was once again carried out by a nurse who gave the same advice as before.

The council appealed against the finding and the Employment Appeal Tribunal (EAT) held that the tribunal had imposed a very high standard of investigation on the employer and that the length of service was not relevant to the investigation. It said the case should be remitted for the tribunal to look at the key question of whether the council could be expected to wait any longer in deciding to dismiss him.

The council met with the employee the following month to speak about his condition and a possible return to work. He was given a return date of 14th September 2009 and the council indicated that it may consider terminating his employment if he did not return on this date. The employee was offered a chance to appeal this however he chose not to.

The employee appealed to the Inner Court regarding the decision of the EAT to overturn the judgement, however the Inner House agreed with the EAT regarding how the tribunal had approached the matter and agreed that the case should be remitted. It said that the tribunal had failed to give sufficient regard to some of the key principles of the case, which are:

On 11th September, the man was seen by an OH doctor who said he was showing signs of improvement and should expect to return to work within one to three months, but this was dependent on when his GP signed him fit. The man was signed off sick for a further four weeks by his GP and did not return to work on 14th September.

ll Raising the question of whether an employer can be expected to wait any longer to dismiss an employee in cases of long-term sickness. ll Consulting an employee to take his/her views into account. ll Understanding the medical position of the employee, however the employer itself is not required to pursue a detailed medical examination.

A meeting was organised on 23rd September to consult the man about a proposed dismissal for ill-health. He indicated during the meeting that he did not feel he was getting any better and taking this into account, along with the latest OH opinion, the council made the decision to dismiss him on the basis that a return to work in the near future seemed unlikely and that there was “no light at the end of the tunnel”. The man appealed against this decision but was unsuccessful.

While this case highlights that an employer is permitted to take a medical report at face value, however vague or unhelpful, if an employer looks to clarify the medical position earlier, this will normally lead to better decisions being made. Arguably in this case, the poor quality of the information provided had a negative impact on the employer’s decision-making, giving rise to points which were ripe for appeal. The nature of the reporting provided by a nurse could have possibly been challenged earlier, which may have meant matters could have been brought to a head sooner.


COVERT RECORDINGS

by

SARAH LOWE

Features Editor

Recordings

Covert

With an increase in the number of employees recording meetings with the intention of using them at tribunal we look at the implications these recordings have for employers.

I

t has been reported that some employees are secretly recording meetings with managers with the intention of using them as evidence at employment tribunals. With the prevalence of sophisticated portable recording devices (including on many mobile phones) it’s a trend that looks likely to continue. As an employer you may well wonder if such a practice is fair or reasonable. Certainly, tribunals described covert recording as a ‘very distasteful’ and ‘discreditable’ practice. However, case law suggests that this in itself may not be enough to make them inadmissible as evidence.

EMPLOYMENTMATTERS • ISSUE APRIL 2014

If an employee hides a tape recorder and captures comments made during his employer’s private deliberations during a grievance and disciplinary hearing, is that evidence admissible in an employment tribunal? Normally yes, especially if it does not form part of the employer’s deliberations on the matters in question, held the Employment Appeal Tribunal (EAT) in Punjab National Bank v Gosain.

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In this case, the employer was alleged to have made wholly inappropriate comments about the employee when she was out the room; these had (allegedly) been captured on a covert recording. The EAT stated that the correct test is to undertake a balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance/disciplinary context. The employment judge had correctly distinguished Amwell View School Governors v Dogherty, as the private material recorded in this case fell well outside the area of legitimate consideration of matters within the grievance and disciplinary panels’ remit.

In that case, the EAT was asked to rule on whether a covert recording of a disciplinary hearing and the private deliberations of the disciplinary panel was admissible in evidence. The claimant in this case had been dismissed for gross misconduct and issued a claim of unfair dismissal in the employment tribunal. Following the standard disclosure order, the claimant’s lay representative disclosed a large number of documents, including three “records” of the disciplinary and appeal hearings, including the panel of Governor’s deliberations. The fact that the claimant had made these recordings of her employer without the panel’s knowledge or consent became apparent at the tribunal hearing, which was then adjourned. However, the employment tribunal ruled that the claimant would be able to admit the recordings of the main hearings as evidence, if she disclosed the actual recordings and transcripts, before the rescheduled hearing. The respondent sought a review of the employment tribunal’s decision and argued at the EAT that the recordings should not be admitted on several grounds. The argument that there was a breach of their human rights (the Governor’s right to respect for private and family life), as the Governors were performing a quasi-public function and could not rely on such privacy. The EAT also found that the recordings could not be excluded on the grounds that they had been made ‘illegally’, unless it could be shown that there was authority for that, or there were public policy reasons to exclude them – for example, the recordings were made in breach of contract or in breach of any statutory provision. There were no such provisions in this case and the claimant was able to argue that her right to a fair hearing on the best available evidence would be compromised if the recordings were excluded.


it. As an aside, last month the EAT separately upheld a decision to award costs against the Claimant in this case (estimated to be around £87,000), despite the fact she was unemployed and unrepresented before the tribunal. Covert recording of private deliberations may not be admissible due to public policy reasons. The case law in this area suggests, however, that even these deliberations may be admissible if the employee involved says that they are the only evidence of alleged discrimination.

More recently, in February 2013, the EAT considered the case of Vaughan v London Borough of Lewisham UKEAT/0534/12, which involved arguments relating to the claimant’s application to adduce in evidence 39 hours of recordings she had made of her interactions with managers and colleagues, to support her claims of disability discrimination, victimisation and harassment, whistleblower detriment and unfair dismissal. The recordings included recordings of disciplinary hearings, where the employer made official notes, the accuracy of which were disputed by the claimant. The claimant in this case did not supply copies of the transcripts, nor the ‘tapes’ (which were actually held on an iPod) and the employment tribunal rejected her application to submit the recordings as evidence, on the grounds that she had not shown

In his judgment, the Honourable Mr Justice Underhill made this comment: “We should say…that the practice of making secret recordings in this way is, to put it no higher, very distasteful; but employees such as the claimant will no doubt say that it is a necessary step in order to expose injustice. Perhaps they are sometimes right, but the respondent has already made it clear that it will rely on the claimant’s conduct in making these covert recordings, as illustrative of the way in which her conduct had destroyed any relationship of trust and confidence between her and it.” The EAT also recognised that the respondent in this case would rely on the claimant’s recordings as evidence as to her credibility, since she had been asked on previous occasions whether she had made such recordings and had denied

Employers may want to prohibit recording in their procedures and policies, but experts suggest that this won’t deter some. Better advice, they maintain, is for managers to assume they are being recorded and to remember that what they are saying may be admitted as evidence in a tribunal. Better still would be to cultivate an open and supportive atmosphere in the workplace, where disagreements are dealt with swiftly and sensitively before getting out of hand. Where there’s trust and mutual respect, employees would not feel any need to make secret recordings.

EMPLOYMENTMATTERS • ISSUE APRIL 2014

The EAT held that an employee who covertly recorded her own disciplinary hearing could use the recording in evidence before the tribunal, but that her covert recording of the private deliberations of the disciplinary panel was not admissible on grounds of public policy. There was a public interest in maintaining respect for the private deliberations of a disciplinary panel.

that they were of probative value. The EAT acknowledged the correctness of this decision as the claimant refused to provide the recordings and transcripts, but decided that there was no absolute reason why none of the recordings should be admitted in evidence, as parts of them could be potentially relevant to the issues and ought to be admitted in the interests of justice.

There are no specific rules for employment tribunals about the admissibility of covertly obtained evidence. Instead, the employment tribunal has a wide discretion over whether to allow evidence to be considered. If the evidence is relevant and it would be proportionate to allow it, then it may be admitted. However, the employment tribunal may still order that such evidence be excluded, if it is disclosed late; would breach the Human Rights Act 1998; or should be excluded as a matter of public policy.

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Employment Matters Magazine April 2014