Category: Employment Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Menopause Mental Health Protected Characteristics

Guest Blog | The Menopause — Why should organisations bother?

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Katie Day is a Director at RDP International Ltd

Policies and guidelines around mental health are in place.

Established and clear policies have been in existence for pregnant women and parental leave for many years.

Ways of recording reasons for absence and supporting staff (via Employee Assistance Programmes for example) are well used.

The menopause.

Ah.

Not so good there then!

I find this puzzling. Not every woman will experience pregnancy, yet every woman, if she lives long enough, will experience the menopause. As we make up around 52% of the population, and around 57% of that number are of key menopausal age (between 40 and 65). That’s a lot of women who will go through this life transition!

It is estimated that absence due to menopause (where woman are not supported at work) represents a cost to the UK economy of around £7.3 million per year1.  According to the Government Report on Menopause, women at menopausal life phase are the fastest growing workforce demographic, and according to the Faculty of Occupational Medicine nearly 8 out of 10 peri- and post-menopausal women are in work.

Women are lying. Around 75% of women say they do not feel confident to cite the menopause as the reason for their absence at work, so are reporting ‘other reasons’ for their absence. They feel really bad about doing this, which further exacerbates their feelings of vulnerability. Ensuring there is a supportive workplace culture is the responsibility of the organisation, not the responsibility of the women who work there.

One in four women consider leaving their job during this life phase.

Combine the above statistics with the legal requirements of employers to support and protect staff, this is a topic that cannot be ignored within the business community.

When asked, women in the UK report the following menopausal experiences as just some that have a negative impact for them at work, there are others2:

  • Irritability: 56%
  • Poor concentration: 51%
  • Tiredness: 51%
  • Poor memory: 50%

Women want to talk with other women going through this life phase, to have more information. They want management awareness of the topic, combined with information and advice from their employer. They want access to support via training sessions and networks.

Not all the responsibility lies with the employer of course. It is shared with the woman herself. We can all take ownership of our health and find out how we can best support ourselves, navigate this transition with the maximum ease and minimum stress and emerge stronger and even more resilient.

First and foremost we need to ‘normalise’ the conversation. What do I mean by this? Well, we all need to feel comfortable talking about ‘the M word’. If, as women, we are uncomfortable verbalising our experience(s), then it is pretty much guaranteed that people around us will also feel uncomfortable. The menopause is a natural part of life, and once we accept and embrace this life transition and see it for what it is – a temporary rite of passage, we are able to recognise that we can, to some degree, sail through rather than stumble through.

Honest and open conversations are the key. We all need to acknowledge the important and valuable contribution women of menopausal age make to the business world. By ‘all’ I mean women themselves and their employers. To lose all that experience and expertise is simply bad business and poor workplace practice.

With two employee tribunals (2012 and 2018),3 both of which went in favour of the claimant (menopausal woman), organisations ignore this issue at their peril. It is increasingly crucial that employers ensure they become, and remain, employers of choice – for everyone. ‘Everyone’ must not exclude women of menopausal age.

We work with some truly wonderful organisations who have the courage to tackle this issue head on, brave enough to make the changes necessary and savvy enough to ensure they retain some of their best talent. Do you work for, or run, one of these organisations? Or is there room for improvement?

Many of our clients are considering making our Supporting people during the menopause session mandatory for every manager they employ.

More and more men within our client organisations are putting themselves forward to be a champion and a ‘point of contact’ for women. They encourage other men to learn, change and support. They are the benchmarks all people need to follow.

Let us all embrace the strength and value of this time in a woman’s life, promote the wisdom, experience and expertise of women and collaborate to create an even more resilient and successful workplace.

Katie Day

Director

RDP International Ltd

katie@rdp-int.com

RDP International works with organisations on: leadership / communication / all matters ‘midlife’

www.rdp-int.com

Join the conversation:

LinkedIn:        Midlife Matters Group

Twitter:           @Midlife_Matters

Facebook:        Midlife Matters

  1. Kleinman NL, et al. (2013)

Direct and indirect costs of women diagnosed with menopause symptoms

Journal of Occupational and Environmental Medicine 2013 Apr;55(4): 465-70

  1. Griffiths A, et al. (2013)

Menopause and work: An electronic survey of employees’ attitudes in the UK

Maturitas 76 (2013): 155– 159

  1. Merchant v BT plc (ET/1401305/11, 27 February 2012)

Reported in below:

Okill A (2017)

Time to tackle the myths and taboos of the menopause in the workplace

HR News (October 2017): http://hrnews.co.uk/time-tackle-myths-taboos-menopause-workplace/ 

Katie Day highlights the need for workplace support for menopausal women, emphasising the importance of normalising discussions and providing resources.

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Acas Anna Denton-Jones Disclosure Employment Law Employment Rights Act 1996 Employment Tribunal Grievance Investigations

Does an employer have to disclose the investigation report?

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At first glance, one might think the answer to this question was rather obvious, in that the employee raising the grievance is going to want to see that the investigation has been done thoroughly and fairly in order to be able to accept that the employer is following the correct processes based on the evidence.  Indeed, if you didn’t disclose these papers to the employee, it is likely to foster distress and further antagonise what may already be the steps on the way to a breakdown in trust and confidence between the parties.

Having said that, are there circumstances in which you can decline to show the employee parts of the evidence?  It is worth noting that the ACAS Code of Practice in relation to grievance procedures does not grant a specific “right” to the employee to see witness statements or any evidence that is part of an investigation.  

The employer is likely to be having to balance the rights of the employee against the rights of others who have also been named in the report, and to whom it may also owe duties such as  confidentiality, if that were the only basis on which it could obtain evidence.

The ACAS Guide to Conducting Workplace Investigations states “if an individual wishes to see a report they have been named in, they have got a right to see any parts of the report that contains information about them or that is reliant on information they have provided”.  That makes sense because they may want to correct a mistake that you have made in quoting them or if they disagree with an interpretation that has been made by the investigator. The ACAS Guidance goes onto say “however, they should not be allowed to see private information belonging to other individuals”. Thus, you would not necessarily be disclosing to them the entire report.  It may be that in sensitive cases, where perhaps co-operation in an investigation has only been able to be obtained by witnesses being promised anonymity, certain parts of the report/statements would have to be redacted.  In such circumstances, it may be that you change the names and other identifying information to, for example, numbers or letters, say witness B etc.

Ultimately, it is down to the employer to decide what the best thing to do is in each case and we would recommend that the rationale for acting in a particular way is recorded at the relevant time, so that if it is challenged later, at appeal or through the Tribunal, there is a record of the decision-making process.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Data Protection Act 2018 Data Subject Access Requests Disclosure Employment Law Investigations Privacy

Subject Access Request during an on-going process

Data use shown on mac screen

It is not uncommon for somebody who is part-way through a process, such as a performance management process, sickness absence management process, redundancy situation or disciplinary process, to put in a subject access request under the Data Protection Act.

If the employee is off sick or because they’re at a very early stage in the process, they may not even be aware that, for example, a disciplinary investigation has commenced. Or they might not yet be aware of a complaint that’s been received, that you’re looking into that relates to them. Alternatively, you might be towards the end of the process at the appeal stage and you might have a subject access request in an attempt to look for what I call “the smoking gun” they think you have hidden from them in terms of the process so far.

I’ve even heard today of Unions using the SAR as a form of industrial unrest – launching mass employee requests on organisations as part of industrial action.

The first thing to note is that the request under the Data Protection legislation is made in an entirely different relationship with you than the relationship of employee and employer. It is made as a data subject in relation to your position as data controller governed by the rules in the data protection legislation. So, for example, given that you have 30-days under the data protection legislation to access their request and provide them with the data they have asked for, it is entirely possible that your ongoing employment processes will be moving more speedily and for example, a disciplinary hearing or a meeting might be in the diary well before that 30-day period.  There’s nothing in the data protection legislation that requires you to halt your internal employment process or wait until the SAR has been dealt with.

If you have already disclosed the information to somebody for example, as part of an investigation report or in an email notifying them of a complaint against them or as part of a pack given to them for the purposes of an appeal meeting, you have already given them that information so you’re not going to be required to give it to them again as part of the subject access request disclosure – you would just have to cross refer to what you’ve already given them.

The next thing to say about data protection is there is absolutely no substitute in any given situation for tracking through the legislation itself when it comes to determining what you’re required to disclose to the data subject and what you’re allowed to withhold. Making this assessment on the basis of some kind of ‘feel’ is not enough.

There are things you do not have to disclose. This includes:

  • anything relating to negotiations if disclosure would prejudice the negotiations
  • confidential references given by you
  • criminal investigations
  • data processed for the purposes of management planning if disclosure would prejudice the planning (such as telling the subject about a redundancy exercise before the consultation had launched)
  • anything that is protected by confidentiality to a third party or legal professional privilege.

Thus, the list of exemptions is really narrow.  It means most things are disclosable, perhaps with some redaction of bits relating to other people. We all need to bear in mind when we prepare documents that the data subject may see them in future e.g.: – email accordingly.

In your letter to the data subject, which you will send with their response to the subject access request, you need to include a detailed explanation as to how you have gone about your response to the request and why you have excluded anything.

It is important that you consider the rights of other data subjects when processing requests.  If disclosure of the information would identify another individual, you’re not obliged to comply with the request unless the other individual has consented to the disclosure of the information and it is reasonable in all circumstances to comply with the request without the consent of the other person. It is relevant to complaints and investigations – have you informed the complainant that the matter will have to be taken up with the individual? Have you informed those witnesses that have given evidence as part of the process that their evidence is going to be showed to the person that is for example, accused of misconduct?

Where you haven’t got consent, you will have to think about redaction and omitting names and taking out as much as you can that would identify somebody. The legislation itself requires you to take steps with a view to seek consent from the other individual who asks us to look at whether there is any express refusal of that consent.

Of course it is entirely possible that the individual might try and make a second access request if the first request has not revealed what they thought they were expecting and s95(3) requires us to consider whether it is a reasonable interval between the requests having regard to the nature of the data, the purpose for which it is being processed and the frequency with which the data is altered. If you’ve complied with the subject access request and given the employee the data they requested, it is highly likely that you’re going to be able to refuse a second request on the basis that nothing has changed.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Employment Law Pay

Getting money back from an employee when mistakenly overpaid

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Let’s assume that you’ve overpaid somebody either as the result of an administrative error or because they have fraudulently claimed an entitlement to something that is not the case. Ideally you should have a contractual provision expressly allowing deduction from wages in the event of an overpayment. This is so you can rely on it to recover the overpayment where they are still employed by you. If you didn’t have this contractual provision, making the deduction would be a breach of contract.

In the absence of a contractual provision, the employer could rely on a common law remedy called ‘restitution’ based on a mistake of fact to recover the overpayment through the civil courts – this law prevents the unjust enrichment of the worker at your expense. You should act as quickly as possible once an overpayment is discovered because a worker can rely on a ‘change of position’ defence so, for example, if they’ve spent the money they would argue they are no longer able to repay it. An example case where this occurred was County Council of Avon v Howlett 1983 where a teacher was paid more sick pay than he was entitled to. At the time he queried the overpayments but he was told they were correct and by the time the Council had realised its mistake he had spent the money. The Court of Appeal prevented the Council from recovering any of the overpayment clearly taking into account the fact that the Council had confirmed that the payment was correct so the employee, in good faith and without any knowledge of the claim, changed his position (spent the money) so it was not his fault.

The easiest option is usually to recover an overpayment by making deductions from future payments of wages or salary over a period of time. In circumstances where the deduction is to recover an overpayment of wages or an overpayment of expenses, the unlawful deduction from wages regime in Sections 13-27 of the Employment Rights Act is dis-applied (Section 14(1)). Normally it is unlawful for an employer to make a deduction from a worker’s wages unless the deduction is authorised specifically by law or the employee’s contract or the worker has given their prior written consent to the deduction. An example of this applying is the case of SIP (Industrial Products) v Swinn 1994 where the employee had fraudulently obtained around £2,000 from his employer by altering fuel receipts which he then submitted as expenses claims when he was dismissed. The employer withheld the remainder of his wages and holiday pay. Normally this would clearly have been an unlawful deduction from wages, however the Employment Appeal Tribunal found that this fell within the overpayments exception.

It is worth knowing that you cannot make deductions from somebody’s statutory redundancy payment as that is a payment which is specifically excluded from the definition of ‘wages’ in Section 27(2)(d) of the Employment Rights Act 1996. Elsewhere in the redundancy sections the legislation provides that the employer shall pay a redundancy payment to any employee if they are entitled to it. The only way an employee could agree to a reduced statutory redundancy payment would be in a Settlement Agreement. However, if the employee was receiving an enhanced redundancy payment it may be possible for an employer to make a reduction from the enhanced element to recover an overpayment, but this again will depend on the terms of the employee’s contract.

Likewise, you are not able to make a deduction from statutory sick pay. If you have overpaid somebody and you later make a payment in lieu of notice (that is non-contractual) you can make the deduction for an overpayment. If the employee brought a claim in breach of contract for the difference you would be able to defend it on the basis that you were entitled to recover the overpayment from wages and, in the alternative, counter claim for a set-off of the overpayment.

Where you make any deductions it should be clearly stated on an itemised pay statement.

If you’ve any queries relating to this article, do please contact us.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Disability Discrimination Law Employment Law Employment Rights Act 1996 Health and Safety Health Conditions Pay Return to Work Sick Pay

Can you withhold sick pay for staff with sporting injuries?

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You may have come across clauses in a sickness policy or in contracts of employment where the employer reserves the right to review the payment of contractual sick pay (and not pay) if the employee had been injured participating in a sport or leisure activity.

The London Marathon this week got me thinking about this.

I’ve previously always used the example (when explaining the clause to clients) of a keen rugby player. If they get injured on a fairly regular basis why should the employer keep coughing up when this is hardly accidental and is going to keep costing them? There are even City firms who won’t allow you to (for example) play rugby because they don’t want you coming into work on a Monday morning covered in bruises and looking like you’ve been fighting because it creates the wrong impression, but that’s another matter…

None of us go out aiming to get injured, but to what extent can an employer withhold sick pay from someone who (say) breaks a leg running in a marathon, riding a horse or riding a bike?

There is no obligation to pay sick pay over and above SSP in general. If employers choose to pay contractual sick pay they can choose how long they want to pay it for, how it is to be calculated, and any conditions attached to payment. Thus it is permitted for an employer to reserve the right not to make payment in certain circumstances as in the case of the clause we are discussing or when they say nothing will be paid until the employee has passed their probationary period.

As with so many things in employment law, firstly care has to be taken to ensure that any provision by the employer is clear so that entitlement at any given time can be calculated.

Secondly, where the matter is reserved for ‘management discretion’ care needs to be taken to treat similar cases in a similar way to prevent unfairness. When does a ‘leisure activity’ (riding a bike with a friend round the park to go for a coffee) become a sport? Maybe it’s when the activity becomes competitive? Or is it more about the level of risk involved, so high risk pursuits like skiing, white water rafting and taking your horse cross country (which are more likely to result in injury) could result in sick pay being withdrawn but not general sports?

The third consideration the employer will need to make is what signal withdrawal of sick pay will give staff. Will the invoking of the clause to withhold pay come across as harsh? Will it put people off wanting to work in the organisation because it comes across as too uncaring? Most employers are quite sensible about this for this very reason and only use it in the tiny percentage of cases where a staff member is regularly injured – like the semi-professional rugby player.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Compensation Employment Law Employment Rights Act 1996 HR Pay TUPE

Post-TUPE transfer — P45 issues

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One of the niggly little issues that often arises when there is a TUPE transfer is around the issuing of P45s (or not) to those staff whose employment has transferred.  Often the transferor, who has just seen a group of employees depart, or their payroll provider will insist that they are going to issue P45s to the staff. This is the wrong approach and just upsets people.

There are two approaches to take depending on the circumstances. One is for the new employer to just provide HMRC with a spreadsheet of the information that would otherwise have been on the P45s, the other is to argue there has been a succession – which route is right will depend on eg:- whether the employees are being subsumed into a much larger payroll or whether just part of an employer’s employees are transferring.

The succession route is deal with in  the PAYE regulations Income Tax (Pay As You Earn) Regulations 2003 (SI 2003/2682) where Regulation 102 provides that the transfer of a business is deemed to make the transferee or employer who has inherited the employees a successor business. No-one’s employment has ended, so no P45s should be issued.

Under Regulation 102(8) the Transferor has to give the Transferee ‘any particulars’ needed for them to continue processing payroll. Often, if there is a formal document dealing with a transaction, there may also be contractual promises that, for example, the seller of part of a business has made agreeing that they will make available such National Insurance and PAYE records as are necessary for the buyer.

Given that this is quite an esoteric area, if this issue arises it may well be a simple explanation to the Transferor is all it takes to get their co-operation to provide the information that you need and to prevent them from erroneously issuing P45s.

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Confidentiality Conflict Disciplinary Disclosure Dispute Management Duty of Care Employment Law Employment Rights Act 1996 Grievance HR Investigations Privacy Procedural Fairness

Showing the complaint to the employee

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You will be familiar with the idea that in a disciplinary process the person who is accused of wrongdoing should hear the case against them or should hear or be told the important parts of the evidence in support of that case so that they are given the opportunity to criticise or dispute that evidence and put forward their own arguments. This comes from a case of Spink -v- Express Foods Limited 1990.  But what about the situation where there is a grievance investigation?

The Acas Code is silent on this issue but focuses instead on the person who has raised the complaint. However, as part of the investigation into the complaints that that person has raised, you will need to interview anyone that they have accused of wrongdoing.  For example, there may be an allegation of bullying and harassment.

One option would be to simply show the person, perhaps the line manager, the grievance letter. This is the most open and transparent position and one would hope that any line manager would behave professionally, see the grievance for what it is, and be prepared to answer those allegations in full. This position accords with the concept of ‘natural justice’ – nothing is being hidden and the accused has full opportunity to have their input to what is being said about them.

However, there may be cases where there is a concern that to take this open position would perhaps inflame or fundamentally damage the working relationship between the person who has raised the grievance and, for example, their line manager. The investigator may feel that a better approach would be to not show the full letter to the person who has been accused but rather to take them through the contents of the letter through a process of questioning so that they still have full opportunity to answer what is being said, but perhaps in doing this they can soften the language a little and take some of the ‘heat’ out of the matter.  If the investigator does go down this route they will need to be skilled in questioning and make sure that they do give the full picture to the person so that they are being fair to everybody.  For example, it wouldn’t be appropriate to just say ‘what happened on 5th August?’ You would need to go further and ask ‘Joe Bloggs has stated that there was an argument between the two of you on 5th August. He has said that your voice was raised and that other people noticed that you were shouting.  Is that true?’

If the complainant’s letter refers to complaints against a number of different people then, again, it may be sensible to separate out the allegations so that you are only interviewing an individual about those matters that are relevant to them.

In any event, if the individual (for example, the line manager) is named in a grievance letter, strictly speaking, under the Data Protection Act, they can make a Subject Access Request requesting to see the contents of the letter.  For that reason, again, the employer may want to choose the most open position.

It could also be damaging, as regards the relationship between the employer and the person who has been accused (such as the line manager), if the employer does not disclose the contents of a grievance letter. The line manager may feel that something is being hidden or that they are not being given a full opportunity to answer the case against them, even though at this stage there is no hint of a disciplinary.

The employer will need to carefully weigh all of these issues before deciding how to proceed.  If you have any questions please do not hesitate to contact us.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Health Conditions HR Return to Work Sick Pay Stress

An employee won’t attend Occupational Health

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Often employees will refuse to attend Occupational Health or to provide consent for the employer to write to their GP.  Sometimes they believe that this is a delaying tactic, sometimes they probably know that they won’t like the outcome or the information that will be provided, but where does this leave the employer?

If you’re writing to a GP or consultant who is responsible for the care of their patient, in the absence of the employee’s consent in relation to the Access To Medical Reports Act 1988, then the employer is stuck and unable to obtain information from that physician.  Sometimes employees don’t realise that in the absence of their co-operation, you will still be entitled to make decisions, for example about whether or not they are capable of performing the duties you engaged them to do.  In such a scenario sometimes by explaining to an employee that you will have to make decisions about them in a vacuum, given that they won’t consent, they change their mind and agree to your request.  An alternative for the employer in this scenario is to actually require the employee to attend an Occupational Health physician as, strictly speaking, the Access To Medical Reports Act won’t apply where the employer is asking for a one-off report because that medic will not have been (or be) responsible for the individual’s clinical care.  If the employee attends an appointment with such a doctor then they will have implicitly consented to disclosure to the employer of any report resulting from that examination.  (Kapadia -v- London Borough of Lambeth [2000])

In order to protect themselves, employers will often include a clause in their contract of employment that requires an employee to co-operate and attend a medic where the employer wishes for a report to be written.  Technically, an employee’s failure to comply with a reasonable instruction in this regard would be a disciplinary matter.  Unfortunately for the employer, failing to follow this reasonable instruction is unlikely to form grounds for dismissal as opposed to other disciplinary action such as a warning.  Even if there had been prior warnings in this regard, an employer is going to have to show that dismissal for failure to co-operate is within the band of reasonable responses as well as following a fair procedure in respect of the disciplinary in order to avoid any unfair dismissal claims.  Thus it would become central to such a case to know why the individual was refusing to co-operate and whether or not that was reasonable.

It is probably going to be safer for an employer, instead of going down the disciplinary route, to consider dismissal for incapacity.  If the employer has done all it reasonably can to obtain medical evidence and the individual continues to withhold consent, a decision to dismiss may well be within the range of reasonable responses (Elmbridge Housing Trust -v- O’Donoghue [2004])

When it comes to looking at fairness in such cases, the fact that the employer had an express contractual term will be useful.  It will also have been useful to have warned the employee what the consequences of failing to co-operate may be.

In obtaining an employee’s co-operation it may also be useful to explain to them that, if they are concerned about the contents of a report, they can provide limited consent.  For example, an employee might be worried about revealing information about past illnesses that are not relevant to their current condition.  The employer might, in these sorts of cases, agree to limit information to a certain time period or to confine reporting to the extent to which the employee is able to do their job.

Whilst it might be frustrating to have employees who won’t co-operate, being patient, making a number of attempts to obtain information and persuade the employee before making decisions in the absence of medical advice, and generally acting in a reasonable manner, is likely to put you in a favourable light.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Employment Law HR

When can I legitimately send an employee home?

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Imagine the scenario: you have commenced redundancy consultation with an employee or just had a difficult conversation with them about their performance not being up to scratch and offered them a package to leave to avoid the pain of going through a lengthy capability process. You think you know what the likely outcome will be and they can be quite a difficult person so you don’t want them around bad-mouthing you but how do you handle it?

It’s easy when someone has potentially committed an act of gross misconduct and it is being investigated: we have the mechanism of suspension and provided you have reserved the contractual right to suspend, an employer is justified in doing so for a short period of time.

Where you have commenced redundancy consultation, maybe made an initial announcement and are waiting to obtain the employee’s feedback on proposals, it undermines the redundancy process to place the employee on ‘garden leave’ or to prevent them from being in work, indeed the employee will scream ‘prejudgement’. Besides, ‘garden leave’ as a concept really kicks in when notice has been given and you are ahead of that.

In these circumstances, I often suggest that you tell the employee something like “I appreciate that this meeting has come as a bit of a shock so we won’t expect you to continue working this afternoon; why don’t you go home and prepare for our next meeting which will be on Monday”. That way you aren’t suspending the employee or placing them on garden leave, you are just offering them the ability to not come in by agreement.

But what if the employee insists on coming in and is disruptive, going around telling people in the open-plan office about confidential conversations? There is nothing wrong with taking this person to one side, reiterating the confidential nature of your conversations and explaining if that isn’t respected then disciplinary action would follow.

You do have to be careful though. In a 2006 case of Okiwu and Ukwaju v British Refugee Council where the redundancy process being followed was tainted by race discrimination, this sort of action was victimisation. The tribunal found that the reason for taking action was not that the employee had discussed confidential matters in an open-plan environment, letting everyone overhear her on the phone to her legal advisers, being vocal about bringing a claim, but that she had vocalised her dissatisfaction at the way her dismissal was handled, which in essence was a complaint of race discrimination. Making such an allegation was a protected act and so the tribunal concluded that she had been victimised.

Where you have had a protected conversation under s111A Employment Rights Act 1996 with a view to the employee being offered a settlement agreement to leave rather than undergo the performance management process, generally speaking the employee cannot then refer to that conversation in any claim for unfair dismissal. However, if the protected conversation has included “improper behaviour” a Tribunal is likely to find that the employer has lost that protection. I would argue that sending an employee home, removing them from the workplace is such a prejudicial act that it undermines the guidance from Acas that employees should have 10 calendar days to consider any offer being made. Certainly taking they keys from them and making them clear their desks making it clear that you have no intention of them coming back, puts the employee under such a lot of psychological pressure that a tribunal could find it was “improper”. The same would be true of removing computer access rights or blocking emails.

So it may be better to just grin and bear the situation for a few days, painful though it is. That said, I have known disgruntled employees damage an employer’s computer system so if you have any concerns about these sorts of issues do the right thing for the organisation from a commercial perspective and worry about the law later!

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Collective Redundancy Compensation Dismissal Employment Law Employment Rights Act 1996 HR Notice Periods Redundancy Unfair Dismissal

Things to know when dismissing a member of staff

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The main risks

Anyone sacking a member of their staff faces three main types of potential push back by their ex member of staff. Firstly, the employee may claim they have not received the correct notice pay or other sums owed to them, secondly, they may claim unfair dismissal, once they have 2 years’ service and thirdly, they may claim discrimination.

Unfair dismissal claims are capped at 1 years’ salary or £74,200 compensatory award and a further basic award of up to £13,500 – depending on financial losses of the employee but discrimination awards are uncapped and may include damages for injury to feelings up to £36,000. That said, it is important to note that average awards are much less – between £4-5,000 for unfair dismissal and £12,000 for discrimination.

So how can you protect yourself?

Key advice is: Put yourself in the employee’s shoes and think about how you would want to be treated. If you follow that commonsense rule you shouldn’t go too far wrong eg:- you are likely to investigate the situation thoroughly, listen to all sides including the employee before making a decision and not jump to conclusions. Canny employers draft a provision into the contract of employment enabling them to suspend an employee pending an investigation – this protects the business for example, a disgruntled employee cannot then contact customers or destroy computer evidence relevant to the investigation.

Follow a procedure – for unfair dismissal purposes you have to show that not only did you have a good reason to dismiss (such as the person being incapable of doing their job or guilty of misconduct) but you have to show that you have acted “fairly and reasonably in all the circumstances”. This certainly means following the basic steps outlined above but the ACAS Code of Practice on Discipline and Grievance should be the employers’ touchstone here – Employment Tribunals judge you by this standard and expect you to be familiar with it – it also contains handy flowcharts.

Whilst employees are entitled to bring a companion along to a meeting in which they are dismissed (a colleague or trade union official) you may also want to take a witness along. This person could help you take notes of the meeting but is also there to protect you as they can confirm you acted fairly if challenged.

So where do people tend to go wrong?

The most common mistakes are:

  • Inconsistency of decisions – dismissing for something that the last person who did it just had a warning for – this is unfair. If you want to distinguish between cases you have to be able to justify it on reasonable grounds such as the length of service and previous good record of the employee given the warning compared to the one that was dismissed.
  • Failure to investigate properly – an employer has to have a reasonable belief based on the evidence before them that an employee is guilty of misconduct. Even if an employee denies something outright if you have reasonable grounds to believe they were involved or did do something – you don’t need cast iron proof that they did, unlike criminal law.
  • Dismissing someone for poor attendance record when they have a medical condition such as depression which could qualify as a disability under the disability discrimination legislation. The employee then claims not enough was done to accommodate their medical position.
  • Pre-preparing letters of dismissal and presenting them to the employee at the end of the meeting – this makes your decision look pre-judged and will result in the dismissal being unfair. You must keep an open mind – there could be a reasonable explanation behind the situation as it appears to you.
  • Decision-makers taking account of matters which are not discussed in the disciplinary hearing ie:- the employee doesn’t get a chance to address this evidence and so the dismissal is unfair.
  • Not having an appeal stage making the case automatically unfair or the appeal decision-maker getting involved in the case when the original decision to dismiss is made so that they are not impartial which is unfair.
  • Rushing eg:- walking someone into your room, ambushing them with an allegation, deciding they are in the wrong and dismissing them. Notice of a disciplinary hearing should be given at least 24 hours before the meeting and it often helps to “think” overnight before coming to a conclusion and confirming dismissal, even if you have known all along that is where you are heading – that does mean it could take at least 72 hours  to follow the procedure but it is worth investing the time upfront to protect you against criticism at a later stage.
  • Not giving the employee the opportunity to be accompanied by a companion – failure to do this can result in a Tribunal award of up to £900

Anna Denton-Jones
Refreshing Law