Technical employment law update - April 2019 - in depth - Gateley
In depth

Technical employment law update - April 2019

Gateley Legal

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Written particulars better late than never

Issue

Employers that fail to provide new employees with a written statement of their employment particulars within the first two months risk that a claim may be made to the Employment Tribunal. Those proceedings may result in a declaration of terms being made or even an increase in an award of compensation where another claim is made. The issue in Govdata Ltd v Denton was whether that risk would still apply where the written statement was provided outside the two month time limit.  

Facts

Mr Denton started employment on 1st December 2015 but was only provided with a statement of particulars in June 2016. In August 2016 he left and successfully brought claims for arrears of pay, holiday pay and notice pay. He then applied to the Employment Tribunal for the compensation to be further increased to reflect the fact the employer had breached the requirement to provide him with the statement in the first two months of his employment.

Decision 

The Tribunal originally decided to increase the award by two weeks capped pay (£479) and awarded him the sum of £958. However on appeal it was held that the additional award could not be made as the employer had met the requirement to provide a written statement of employment particulars as at the time the proceedings had been commenced. Since late compliance was still compliance the Tribunal had no power to increase Mr Denton's award.

Action

The case shows the value of reviewing whether new starters have received written confirmation of their main terms and conditions even if the two month time limit has passed. Failing to comply may be costly as any award in respect of another claim may be increased by two or four week’s pay and the statutory cap on a week's pay increased this month to £525. It is also important to remember that from April 2020 the right to written particulars will not be limited to employees but will be extended to the wider category of ‘workers’.  

Equality training crossed the line

Issue

The Equality Act 2010 provides that harassment can be any unwanted conduct which has the purpose or effect of violating another’s dignity or creating an “intimidating, hostile, degrading, humiliating or offensive environment”. In Georges v Pobl Group Ltd the question was whether the use of discriminatory words in the context of equality training could form the basis of harassment or whether it was unreasonable for the conduct to have that effect having regard to the circumstances. 

Facts

Ms Georges attended an equality and diversity training session which was part of the employer’s mandatory induction. The trainer presented an offensive words exercise that was to highlight words that should never be used in which she wrote down the N Word and P word in full on a Flipchart. The delegates were then asked to shout out what they considered were the most offensive words. The N word was shouted out three times. Ms Georges claimed that this had amounted to harassment.

Decision

It was held the claim of unlawful harassment succeeded. The use of the full ‘n’ word by the trainer and three others had the effect of creating a degrading and offensive environment. It was reasonable for Ms George to consider that her dignity had been violated even though the discriminatory words had been used in a training context. The employer had been aware there was a risk in presenting training in this manner and that use of these words could create an offensive environment. 

Action

Equality and diversity training is important. It can prevent problems in the workplace and can provide an employer in a discrimination claim with a valid defence where it can be shown that all reasonable steps have been taken to prevent such conduct. However this case highlights the importance of reviewing how the training is presented. The impact of offensive words should not be underestimated and the manner in which the training is delivered should reflect this at all times.  

Employer’s party liability

Issue

An employer will be vicariously liable for the acts of employees carried out “in the course of their employment”. An employer will not be able to escape liability on the grounds that the offending conduct had not been authorised. However there are limits and where an employee “acts on a frolic of his own” there will be no liability. In the case of Shelbourne v Cancer Research UK the High Court had to consider whether liability could extend to the employee’s conduct at a work’s party.  

Facts

Mrs Shelbourne had been dancing with a colleague at her employer’s Christmas party. Mr Bielik, a visiting scientist who had been carrying out work at the institute, was also on the dance floor. He had been drinking since the start of the party and had lifted three different women in the air whilst they were dancing. He came over to Mrs Shelborne and attempted to pick her up. However as he lifted her in the air he lost his balance and dropped her. She sustained a serious back injury.

Decision

The High Court dismissed her compensation claim. In the circumstances the employer had done sufficient to meets its duty of care. It had put safeguards in place in relation to foreseeable risks. In any event it held that the actions of Mr Bielik at the party could not be regarded as having been done in the course of his employment. He carried out research work. His conduct at the party could not be regarded as being sufficiently connected with that to cause the employer to be vicariously liable.

Action

The employer still has a duty of care to the employees at a party and will be expected to take appropriate steps to ensure their safety. However the High Court Judge’s view was that the “reasonable person of the early 21st century” would not regard the employer’s duty as extending to having attendees sign declarations they would not behave inappropriately or carrying out risk assessments into all eventualities stemming from all forms of inappropriate behaviour.

Importance of communication

Issue 

An employee may resign and claim to have been constructively dismissed if the employer is in fundamental breach of contract. The term that is most frequently alleged to have been breached is the implied one of trust and confidence. In the case of Epsom & St. Helier University Hospitals NHS Trust v Starling the issue was whether that term had been breached where the employer had taken informal action that was not in accordance with its policy and procedures. 

Facts

Mrs Starling, a Fertility Nurse Specialist, had fallen ill during her shift and had been told to attend A&E. This led to her forgetting to charge the incubators in preparation for the arrival of a patient the following day. She contacted the Unit’s lead consultant to advise her of this error and alternative arrangements were made. However it was decided that Mrs Starling should receive an ‘Improvement Notice’ under the Trust’s disciplinary policy even though there had been no prior discussion with her.

Decision

It was held that her constructive dismissal claim succeeded. The employer had acted contrary to its own disciplinary policy in issuing the notice without first speaking to the employee. The policy encouraged managers to talk informally to staff about difficulties that had arisen at work. The significance of meeting and talking about potential problems was emphasised throughout the policy. Acting in the way it had the employer had breached the implied term of trust and confidence.

Action

The judgment suggests that the employer could have avoided the claim if management had given more thought to the importance of communications with the employee. It recommended that steps were taken to encourage senior staff to understand that the management of staff was not simply “a tick box exercise, but something which required initiative, common sense and, where appropriate, a degree of compassion.” A useful reminder of how important HR training is in the workplace.

Can going to an Employment Tribunal get you dismissed?

Issue 

An employee who is dismissed for simply bringing proceedings in an Employment Tribunal may have grounds to claim that the dismissal was unfair or that they have been unlawfully victimised. However in the case of Radia v Jeffries International Limited the question was whether the employee could be fairly dismissed from what was a regulated role purely on the express findings of the Tribunal regarding his credibility.

Facts

Mr Radia had to be certified as a ‘fit and proper person’ in his role which was regulated by the Financial Conduct Authority. His claim of disability discrimination against his employer was dismissed. In the written judgment that followed it was stated that he had not told the truth or had misled the Tribunal in a number of respects. Mr Radia was subsequently dismissed by his employer on the grounds that there were serious concerns regarding his fitness to continue in a regulated post.  

Decision

It was held that it had been reasonable for the employer to rely on the credibility findings without conducting any further investigation to show that the employee had lied. The findings on credibility in the judgment were damaging in themselves and the employer had been entitled to reach the decision to dismiss as it raised doubts regarding his fitness to continue in the post. However the failure to hold even an appeal hearing did mean that there were procedural issues that had to be addressed. 

Action

Employers should be cautious about taking any action against an employee in respect of claims that have been brought before the Employment Tribunal. However this case shows that if a staff member falls short of the standard for FCA regulated persons, this can be grounds enough for dismissal. It also provides useful guidance for firms on the criteria for assessing ‘fit and proper’ in the context of credibility as a witness in court or tribunal proceedings. 

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