Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that need to be considered when instructing a solicitor.
Anna Denton-Jones
Refreshing Law
Category: Anna Denton-Jones
With everyday headlines about a cost-of-living crisis and employers pay rise intentions or activities running at well below inflation, employers are potentially more vulnerable to staff deciding to take matters in their own hands. I remember doing training alongside some senior ex-Police Officers who advised me that for corporate theft or fraud to take place, there only needs to be an opportunity and motive. As staff are beginning to feel the pinch then the motive may be there so it then comes down to whether or not within the structure of that person’s job, the opportunity exists.
Opportunity might come in the form of handling cash, payroll, dealing with corporate credit cards or even recording sales on your system. During the last couple of years, I have seen fraud cases involving each of these activities as well as the well-worn example of an employee having private work done for personal gain on the employer’s own resources.
Because we trust our colleagues, we don’t like to think about the fact that somebody might do something that we wouldn’t do ourselves or think negative thoughts about others. However, I come across this scenario often enough to know how heart-breaking it is for colleagues who feel betrayed when it happens and is discovered in practice.
For that reason, it might be worth thinking about whether there are any weak points in your structures: look at them with a stance of ‘If I was going to try and take advantage here, what could I do and how could I do it?’ For example, if I process payroll, do I also process my own salary or does someone else have to see it? If I am setting up suppliers on the system what is to stop someone creating a fictitious entry or setting up one of their friends and then paying ‘fake’ invoices?
Anna Denton-Jones
Refreshing Law
Whilst many will have looked at the behaviour of P&O and criticised them and they are undoubtedly at the extreme end of the spectrum, it has caused me to reflect on the extent to which all organisations from time to time “take a view” about legal risk and to some extent, price that into the decision-making process. I defy anyone in HR to say that they have never done this.
What I think the reaction demonstrates is how far we are moving forward and that ESG is becoming mainstream, with the debate and the discussion about P&O showing that organisations by and large ‘get’ the idea that it’s more than just about legal compliance but treating people fairly and with dignity as well as ensuring the right image for the organisation, in terms of its values is as important, given what can happen with social media.
The Government has clearly been on the backfoot — literally in the days leading up to P&O Friday, following a private members bill, attempting to tackle so called fire and re-hire practices, the Minister stood up in parliament and confirmed that the government had no intention of making any changes in this arena. Fast-forward a couple of weeks and now hasty announcements around a number of steps that are going to be taken in the maritime area to ensure National Minimum Wage etc.
The relevant issue for everyone is in relation to what they have said about a new statutory code on ‘fire and re-hire’ tactics which will be produced. It sounds as though this will be putting what Acas already advise onto a statutory footing, in the same way as we used to with the Disciplinary and Grievance Procedures. We are already used to Tribunals and Courts taking the Code into account when considering cases of unfair dismissal and them having the power to uplift the award that is made to any successful employee’s compensation by up to 25% where there has been an unreasonable failure to follow that Code. That is the model that is going to apply here.
At this stage we don’t have the actual Code but I would imagine that it will be following the guidance that is already there to consult with staff, taking into account the background legal position on this issue. Indeed the 11th November 2021 advice published by Acas suggests employers should fully consult their workforces and make every effort to reach agreement on any contract changes, noting that fire and re-hire is an extreme step that can damage staff morale, trust, productivity and working relations. So in effect this is just giving the Acas guidance statutory force. Currently there has been no confirmation of when exactly this will happen.
On another note it looks like the insolvency service has been tasked with considering the circumstances around the CEO of P&O’s failure to lodge the HR1 form which is a criminal offence and the responsible statutory director can be fined for this. I imagine that there is a certain amount of political pressure to ‘make an example’. I know a few years ago I looked into how many times this had actually been done and the evidence base was really small, to the point of being miniscule. However, there were directors who made redundancies during furlough who were prosecuted so there is a precedent. Even if an employer decides to do what P&O did and commence with statutory consultation because they would essentially be buying out that right by making ex gratia payments under a settlement agreement, it would still be important for the HR1 form to be filed as a protection for the directors involved.
Anna Denton-Jones
Refreshing Law
A recent case that went to the Employment Appeal Tribunal highlights important issues for employers. The case of London Borough of Hammersmith & Fulham v Keable involved a local authority Public Protection and Safety Officer within the Environmental Health Department with 17 years’ service dismissed for serious misconduct arising out of comments he made at rallies outside parliament. The employee concerned had been filmed having conversations. That video made itself online without his knowledge or consent. He didn’t do anything to link his employment to the video. As a result of it being widely re-tweeted, he was publicly identified as the local authority’s employee.
The employee was an anti-Zionist and a member of the Labour Party and Momentum organiser who was attending the rally in his own personal time. The comments he was filmed making included controversial statements alleging the Zionist movement, prior to World War II, collaborated with the Nazis.
The Tribunal found that the videos were calm, reasonable, non-threatening and conversational. The employee explained that he didn’t intend to offend anyone – it was a private conversation involving an exchange of political opinions carried out between two people willingly.
A local councillor wrote to the employer calling for action against the employee so he was suspended and a disciplinary procedure was followed that led to his dismissal.
The employer acknowledged that the employee had freedom of assembly and expression which included a right to offend others (human rights). However, it found that his comments were likely to be perceived as unlawfully hostile on religious grounds and so brought the employer into disrepute. The Dismissing Officer didn’t find the employee had been guilty of discrimination or anti-Semitism but did find that “a reasonable person would conclude that the claimant had said that the Zionists had colluded with the holocaust”.
At the Employment Tribunal, whilst the Claimant’s conduct was potentially a fair reason for dismissal, procedurally the employer was found wanting – in particular:
- The employee had not been informed of the specific allegation which led to his dismissal; and
- The possibility of a lesser sanction of a warning wasn’t discussed with him.
The Tribunal found that he should be reinstated.
Whilst the case illustrates the sorts of issues employers are now getting embroiled in around social media and freedom of expression, what caught my eye was the basic weakness in the employer’s procedure ie:- that what the employee was accused of didn’t tally with what the decisionmaker ultimately dismissed him for. This isn’t uncommon. Often the allegations are framed at the stage where an employee is perhaps suspended pending investigation or a statement is made that covers a multitude, such as “your conduct in being filmed and the making of comments”. The disciplinary invite letter might be prepared centrally by HR from a template without any real liaison with the person who is potentially going to be making the disciplinary decision. There is always room for error here and before writing the disciplinary letter the writer should be thinking ahead to the evidence and what it does/doesn’t prove.
In this case, the employee quite reasonably asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter. The decisionmaker was thinking instead about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust – that was not put to the employee. The Tribunal easily found it was outside the range of reasonable responses to dismiss somebody for misconduct which hadn’t been put to them as part of the investigation or disciplinary process.
What can you do about this?
If the decisionmaker, having heard all of the evidence, wants to frame the outcome in a different way to the disciplinary allegations in the invitation letter, they should pause the process. They should then invite the employee to a further meeting to discuss the fresh allegation that they wish to consider and it may well be a relatively short meeting given all of the discussions that have already been held but it will be as important for the employee to be accompanied at the meeting as normal. They should then come to their decision.
Compensation was reduced by 10% because of the employee’s culpable conduct in making critical comments about the investigation report.
The employer appealed. Interestingly the Employment Appeal Tribunal upheld that it was procedurally unfair to not have raised with the claimant whether a warning was appropriate. Any employee, when questioned, would always say that a warning was preferable to dismissal! This is stretching the requirements of the ACAS Code of Practice. Yes, an employer should consider the appropriate lesser sanction as an alternative to dismissal but it is not a pre-requisite to consult the employee about that…
The safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and be seen to explain why it wouldn’t.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that could arise when an employee sends themselves emails or information from their employer to themselves.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing holiday pay and some interesting developments in this area.
Anna Denton-Jones
Refreshing Law
A recent case involving ASDA highlights the challenges for employers when faced with an older worker beginning to exhibit the first signs of dementia. This particular case involved an employee who was 73 years old. She had worked for 20 years in a particular store. Her family had spotted the first symptoms of dementia 2 years before she was diagnosed with mild cognitive impairment but Asda did not know of this. Colleagues had become concerned that at times the employee appeared confused, would forget things and lose keys and the employer attempted to get the employee to occupational health. The employee refused that input and also refused to allow her employer to liaise with her family. During her Tribunal case it was alleged that a manager suggested retirement.
The employee then shielded due to her age during the first lockdown. It was during this time that she was diagnosed with mild mixed dementia. At the Tribunal, there were further allegations that during this period a manager twice asked the employee whether she wanted to retire, although the manager denied this.
The employee attended a return to work meeting with her son and he raised her being pressured to retire, asking the employer to ensure his mother would not be bullied or harassed. When the employee came back to work, she was observed to take longer to work stock, got flustered and confused about how she was going to get home. She was unable to find her keys and her bus pass in her bag, which led to a deputy store manager rummaging in her bag for them, which the employee later reported to her family as having upset her. The next day, management tried to have a discussion with her about what had happened and the employee became upset and aggressive, saying she didn’t need help and if she did she would ask for it. The employer tried to get her to occupational health and the employee gave the impression that she might have resigned before walking out and going off on the sick.
A grievance was raised but not upheld and a recommendation was that the employee attend occupational health.
The employee resigned claiming age and disability discrimination. Asda offered her the opportunity to reconsider but she didn’t take it.
The Tribunal found that the employee was constructively dismissed and the conduct amounted to age and disability related harassment, direct age discrimination and discrimination arising from a disability that breached the implied term of trust and confidence. The Tribunal understood that the suggestions of retirement on multiple occasions may have been said in a well-meaning way but were age related harassment. This clearly made the employee feel that she was being pushed out and was unwanted.
The rummaging in her bag was found to have violated her dignity – this was an act of disability related harassment because it was brought about by the memory impairment.
You shouldn’t discount this case as unusual because of the age of the employee – more and more older workers are present in the workforce these days and in any event, memory impairment can be diagnosed early on so assumptions about age and dementia cannot be made.
Whilst it can be very tempting for managers to try and manage problems with an employee who is older by mentioning retirement, they need to be trained to steer clear of retirement as a subject – you wouldn’t make such a comment to a 35 year old employee, so you shouldn’t make such a comment to an older worker as it just opens up the door to them claiming this kind of discrimination. That doesn’t mean a manager can’t discuss career plans. Conversations would need to happen across the board irrespective of the employee’s age though.
Instead, if an employee is beginning to exhibit signs of dementia or other cognitive impairment, the case should be dealt with as you would for any employee of any age. Asda had clearly tried to do the right thing in terms of getting the employee to occupational health but we don’t have enough detail about the lengths that they had gone to in that regard. It may be that they had steered away from explaining to the employee that their refusal to attend occupational health placed Asda in a difficult position of having to make decisions and judgements based on the only information that they had. It might have been that the employee was struggling to perform certain tasks. It was here that the focus should have been – what are the tasks the person is struggling with? What evidence is there that they are struggling?
With regards to the incident of searching the handbag, again the employee concerned was probably trying to be helpful but you need to operate on the basis that any searching of personal belonging or lockers needs to be done with consent and in accordance with any search policy that is in place. Any search would need to be justified and it is here that Asda probably struggled. The manager could have offered to assist and if the employee refused to take it up then to respect that.
Too often we observe that in having to deal with situations in a business-like manner probably while juggling a million and one other things causes line managers forget to add the “human” aspect into communications. The best way I deal with this is to write what I want to write about something, make sure my key points are covered and then go back and add in a language of care and concern and support and wanting to help the person but remember any judge is going to be looking at all of those things, judging whether or not you have done enough. I suspect the communications in this case were devoid of that human touch.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that may arise and what employers can do when an employee might have more than one job at the same time and ends up in a situation where they are overemployed.
Anna Denton-Jones
Refreshing Law
A recent case that went to the Employment Appeal Tribunal highlights important issues for employers. The case of London Borough of Hammersmith & Fulham v Keable involved a local authority Public Protection and Safety Officer within the Environmental Health Department with 17 years’ service who was dismissed for serious misconduct arising out of comments he made at rallies outside parliament. The employee concerned had been filmed having conversations. That video made itself online without his knowledge or consent. He didn’t do anything to link his employment to the video. As a result of it being widely re-tweeted, he was publicly identified as the local authority’s employee.
The employee was an anti-Zionist and a member of the Labour Party and Momentum organiser who was attending the rally in his own personal time. The comments he was filmed making included alleging the Zionist movement, prior to World War II, collaborated with the Nazis and that the Zionist movement had accepted that Jews were not acceptable there.
The Tribunal found that the videos were calm, reasonable, non-threatening and conversational. The employee explained that he didn’t intend to offend anyone – it was a private conversation involving an exchange of political opinions carried out between two people willingly.
A local councillor wrote to the employer calling for action against the employee so he was suspended and a disciplinary procedure was followed that led to his dismissal.
The employer acknowledged that the employee had freedom of assembly and expression which included a right to offend others. However, it found that his comments were likely to be perceived as unlawfully hostile on religious grounds and so brought the employer into disrepute. The Dismissing Officer didn’t find the employee had been guilty of discrimination or anti-Semitism but did find that “a reasonable person would conclude that the claimant had said that the Zionists had colluded with the holocaust”.
At the Employment Tribunal, whilst the Claimant’s conduct was potentially a fair reason for dismissal, procedurally the employer was found wanting – in particular:
- The employee had not been informed of the specific allegation which led to his dismissal; and
- The possibility of a lesser sanction of a warning wasn’t discussed with him.
The Tribunal found that he should be reinstated.
Whilst the case illustrates the sorts of issues employers are now getting embroiled in, what caught my eye was the basic weakness in the employer’s procedure ie:- that what the employee was accused of didn’t tally with what the decision-maker ultimately dismissed him for. This isn’t uncommon. Often the allegations are framed at the stage where an employee is perhaps suspended pending investigation or a statement is made that covers a multitude, such as “your conduct in being filmed making comments”. The disciplinary invite letter might be prepared centrally by HR from a template without any real liaison with the person who is potentially going to be making the disciplinary decision. There is always room for error and before writing the disciplinary invite letter we need to be looking at the potential evidence from a slightly different angle ie:- what the evidence suggests we might be able to prove. The person who is going to be make the decision either needs to be involved or you end up with a potential ‘gap’ where the invite letter says one thing and the decision-maker wants to do something else.
In this case, the employee asked which of his comments that had been recorded was offensive as this is what had been put in his invitation letter.
However, the decision-maker was thinking about the case in terms of his having suggested Zionists collaborated with the Nazis in the Holocaust and that was not put to the employee at the disciplinary hearing.
The Tribunal easily found it was outside the range of reasonable responses to dismiss somebody for misconduct which hadn’t been put to them as part of the investigation or disciplinary process. I’m sure you’d agree that was fair.
What can you do about this?
If the decision-maker, having heard all of the evidence, wants to frame the outcome in a different way to the disciplinary allegations in the invitation letter, they should pause the process. They should explain they believe the allegations haven’t been put correctly. Explain what they believe should have been done instead and then invite the employee to discuss it with their representative in an adjournment, so that they can prepare their response. That might of course mean delaying to a different day. The further meeting to discuss the fresh allegation may well be a relatively short meeting given all of the discussions that have already been held but it will be as important for the employee to be accompanied at the meeting as normal and be able to have their say before the decision-makers comes to their decision.
Compensation was reduced by 10% because of the employee’s culpable conduct in making critical comments about the investigation report.
The employer appealed. Interestingly the Employment Appeal Tribunal upheld that it was procedurally unfair to not have raised with the Claimant whether a warning was appropriate. Any employee, when questioned, would always say that a warning was preferable to dismissal. This is stretching the requirements of the ACAS Code of Practice. Yes, an employer should consider the appropriate lesser sanction as an alternative to dismissal but it is not normally a pre-requisite to consult the employee about that. Given this new ruling the safest thing to do is, routinely in disciplinary hearings, consider whether a warning would be an appropriate sanction and to ask the employee for their views.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing Employment Tribunal Litigation, changing timescales and what has happened and changed within the system over the last 18 months.
Anna Denton-Jones
Refreshing Law