Oliver McCannn
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Employers Update - May 2011
Welcome to the May edition
of Employ!
Welcome
to this month’s edition of
Employ!, an e-newsletter
which consistently exceeds
legal benchmarks by bringing
to you the most important
developments in HR and
employment law.
The key
to the success of Employ! is
your questions, so please
keep sending those in!
In this
edition, we take a look at
the liability of a former
employer for negligent mis-statement,
redundancy scoring, using
surveillance evidence during
disciplinary proceedings and
much more.
If you
wish to discuss anything in
this month’s edition or
simply want to find out more
about Taylors’ employment
law services, then please
feel free to call the
Employment Team on 0844
8000 263 or check out
our
employment pages for
more information.
Oliver McCann - Partner and
Head of Employment
James Bellamy
- Employment Solicitor
Tel: 0844 8000 263
Email:
oliver.mccann@taylors.co.uk
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It’s a myth that
surveillance evidence obtained on an
employee cannot be used in evidence. Whilst
it’s correct that the courts and Tribunals
may consider the legitimacy of such
surveillance evidence, if ultimately it goes
to the very heart of the matter to be
determined, then more often than not this
will “trump” the individual’s right to a
private life in relation to the conduct of
the proceedings.
Use of surveillance is most
common in relation to employees who are
absent from work on long term sick,
particularly where an employee states he or
she has been injured at work and is pursuing
a personal injury claim. If the employer and
the insurer both suspect a fraudulent or
exaggerated claim, the insurer may well
commission surveillance. This in fact arose
in a recent decision by the Employment
Tribunal, which held the dismissal to be
unfair.
The employee had been absent
from work following a back injury at work.
He was deemed unfit to work by his own GP
and Occupational Health. However the
employer and insurers suspected exaggeration
as to the severity of the injuries and the
insurers arranged surveillance. The video
footage showed the employee performing
various activities such as cleaning ice from
his car, driving his car, carrying shopping
and walking his dog. When the employee
returned to work he was accused of gross
misconduct on the basis that he had claimed
company sick pay falsely whilst fit to work.
The employee argued he had
been advised to take light exercise by his
GP and the activities were consistent with
this. The GP was asked to comment on this
point and in particular the activities the
employee had been seen doing. The GP
supported the employee, confirming the
advice that had been given and that he did
not feel the activities were inconsistent
with that. Notwithstanding this, the
employer dismissed the employee.
What do I need to know?
Not surprisingly, the Employment Tribunal
found the dismissal to be unfair in light of
the GP’s evidence and the fact that the
employer had no medical evidence to support
the allegation that the employee had been
fraudulently claiming to be ill. The
Employment Tribunal was critical that the
video footage had not been viewed by any
doctor, let alone Occupational Health.
This case gives clear
direction to employers in these
circumstances – whatever the surveillance
shows, you must not reach conclusions which
are beyond your expertise – where the issue
revolves around fitness to work, it is
reasonable to obtain the opinion of a
medical expert before a decision is made.
Taylors would also suggest
that it is far more beneficial to use
Occupational Health specialists for the
purpose of medical reports and fitness to
work. GP’s owe a duty of care to their
patient and may also feel a sense of
obligation to protect their best interests.
As such, GP reports can quite often be vague
and fail to address key questions/issues.
Further, GP’s may not necessarily be
qualified to comment on particular medical
conditions, eg. mental health issues..
It is well accepted that
employers/former employers owe a duty of
care to take reasonable care in the
provision of any reference they give in
relation to an employee and that it is not
misleading or inaccurate.
However, what is the position in relation
to verbal or written communications about an
employee between a former employer and a new
employer, when those communications do not
arise from a request for a reference?
In a recent case, a former employer was
held to be liable in tort for damages to the
former employee for negligent misstatement
in these very circumstances.
Here, the Claimant left Swindon College
in 2002 to work with Bath College and
received a glowing reference at the time.
Six years later, the Claimant took up a new
role at Bath University. His new role with
the university involved contact with his
former employer, Swindon College. Not long
after starting his new job, the new HR
Director at Swindon College sent an email to
the university stating that the college
could not allow the Claimant access to the
premises or delivery of lectures to their
students and went on to explain in damaging
terms why not. As working with the college
was a key aspect of the new role, the
university dismissed the Claimant, who
pursued a claim against the college.
What do I need to know?
On the facts, the content of the email
sent to the university was held to be
fallacious and untrue. Indeed, the Court
referred to the preparation of the email as
“sloppy and slapdash”.
The Court that held a duty of care did
apply to this communication, despite the
fact that the relationship between the
college and the Claimant had ended and the
communication was not a reference arising
from his employment. The Court found that
the risk of damage was reasonably
foreseeable and, notwithstanding the passage
of six years, there was proximity in the
relationship between the college and the
Claimant and it was fair and just to impose
a duty of care on the college.
This is a strong reminder of the need to
take care in any communications, whether
verbal or written, regarding a current or
former employer regardless of the passage of
time.
It is usually very difficult for
redundant employees to challenge their
dismissal as unfair on the basis that there
was no redundancy situation. Where there is
a clear reduction in the number of employees
required to carry out work of a particular
kind, the Employment Tribunal is usually
unwilling to consider the actual reasons
behind the redundancy. It is therefore not
surprising that in unfair dismissal claims
arising from redundancy, the emphasis is
usually on unfair selection.
A recent case has confirmed that when
assessing the fairness of selection for
redundancy, the marks awarded in the
selection process should only be
investigated in exceptional circumstances
such as bias or obvious mistake. As such, an
Employment Tribunal will need to be
presented with some real facts to suggest
bias or mistake before it becomes obligated
to assess the actual marks awarded.
However, this is no excuse to take a more
relaxed approach to the process of selection
scoring as issues of discrimination can
still arise as well as bias and mistake!
In the case of Eversheds Legal Services
v. De Belin, the Employment Appeal Tribunal,
upheld the Tribunal’s decision that the law
firm had discriminated against the Claimant
in relation to his selection for redundancy.
Here, Eversheds inflated the score of a
female colleague who was on maternity leave.
The reason for doing so was to try to avoid
the female colleague herself being placed at
a disadvantage in relation to a criterion
which assessed the individuals during a
period where the female was on maternity
leave. However, it was held that the
decision to award a notional score in
relation to this criterion while confining
the male colleague to his actual score,
could not be objectively justified. There
were less discriminatory ways to address the
possible disadvantage the female colleague
had arising from her maternity leave, such
as measuring the female colleague’s score
based on a period prior to her maternity
leave.
What do I need to know?
The fact that an Employment Tribunal
will not investigate the allocated scores
unless there is obvious bias or mistake is
welcome news. However, as the De Belin case
shows, there are cases where clear mistake
or discriminatory issues will justify an
assessment of the scores. As such, choosing
the criteria for selection and applying
scores needs to be handled with care to
ensure fairness and objectivity wherever
possible.
It is automatically unfair to dismiss
an employee for exercising his or her
statutory right to take time off to care for
a dependant. As such, extreme care needs to
be taken when considering disciplinary
action for lateness or short term persistent
absences which are associated with caring
for dependants.
This point is well illustrated by a
recent decision of the Employment Tribunal,
where an employee was one hour late for work
due to having to make emergency arrangements
to find childcare. The employer had been
informed that the employee would be late in
once childcare arrangements were sorted.
On arrival, the employee was told he
would have to sign a late form which stated
that he agreed he was late and that one
hour’s pay would be deducted from his
salary. The employee refused to sign the
form as he felt he was being punished for
taking emergency time off to care for a
dependant.
When the employee received his pay, he
noted that one hour’s pay had indeed been
deducted. Upset about this, he spoke to his
Finance Manager, who in turn complained
about the employee’s behaviour. The employee
was then made the subject of disciplinary
action for a refusal to carry out reasonable
instructions and threatening behaviour. He
was told that if he signed a form and agreed
to a final written warning, he would not be
dismissed. The employee refused and was
subsequently dismissed.
What do I need to know?
The Tribunal held that the employee had
been entitled to take time off to care for
his dependants and that he had been subject
to detriment both when asked to sign the
late form and in relation to the deduction
from his pay. Further, the Tribunal held
that there was no evidence of any
threatening behaviour by the employee and in
any event the employer had clearly indicated
that this warranted a final written warning.
As such, the principal reason for the
dismissal was the refusal to sign the late
form. As this was connected with him having
lawfully exercised his right to time off he
had been automatically unfairly dismissed.
Q. We have received a claim for unfair
dismissal from a former employee. However,
the claim was lodged after the 3 month time
period had expired. We believe that the case
is out of time and should be dismissed, but
the matter has been listed for a Pre-Hearing
Review. Please advise.
A. A claim for unfair dismissal must be
lodged within 3 months of the effective date
of termination (which in itself could be in
dispute) or within such period as is
reasonable in a case where the Tribunal is
satisfied that it was not reasonably
practicable to present the complaint before
the end of that period of 3 months.
As long as the effective date of
termination is clear and the Claimant is
outside the 3 month period for lodging the
claim, then you should have good prospects
of persuading the Employment Tribunal to
dismiss the claim. The issue for
consideration is whether or not it
discretion should be exercised to extend the
time period for filing a claim, and this
will mean consideration of whether or not it
was reasonably practicable to submit the
claim within the 3 month period and, if not,
whether the Claimant subsequently submitted
his claim within “a reasonable period”
thereafter.
A recent case has, however, suggested
that ignorance of the time limits prior to
receiving the outcome of any internal appeal
may be sufficient for a claim to be
presented late. It reiterated that each case
is a question of fact.
Taylors have successfully persuaded the
Employment Tribunal to dismiss a number of
these claims on this very issue over the
past 12 months and it may well be worthwhile
taking initial legal advice to try to bring
a quick end to the proceedings.
Q. We have discovered that one of our
managers has been making inappropriate
comments on Facebook about some of our
customers. Do we have grounds to dismiss?
A. Possibly. Possible grounds may be
bringing the company into disrepute, conduct
unbefitting of a manager, breach of company
policies, eg. IT Policy, Equal Opportunities
Policy, Dignity at Work Policy. Careful
consideration as to the facts of the case (ie.
what has been said, who had access to the
comments, etc) in addition to your policies
is necessary to establish the seriousness of
the offence.
A similar case upheld a dismissal as
unfair where the employer had an IT Policy
which specifically referred to employees
using social media. Employment Tribunals are
keen to ensure that employees understand the
boundaries of acceptable and unacceptable
behaviour so that they know when their
actions may result in dismissal!
Copyright 2006 - 2011 Taylors Solicitors
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