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Oliver McCannn   


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


In This Edition:

» You’ve been framed!
» Negligent comments!
» Redundancy and selection scores!
» Dismissal for time off to care for dependants!
» Your Questions

Employ! Email Updates

Employ! is Taylors FREE monthly employment law newsletter which keeps busy HR professionals up to date with developments in the fast-moving world of work. Sign up now to have Employ! sent to you via email each month.

You’ve been framed!

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..

Negligent comments!

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.

Redundancy and selection scores!

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.

Dismissal for time off to care for dependants!

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.

Your Questions Answered

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!

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