Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video in which Anna discusses a recent case (Woodhead v WTTV Ltd) that raises issues around the employerâs duty of care and also procedural fairness in employment cases.
Anna Denton-Jones
Refreshing Law
On 28 October 2023, the 1974 legislation was amended by the Crime Sentencing and Courts Act 2022 and accompanying Regulations.
In the past, some offenders were required to disclose their sentences for the rest of their lives. Now, custodial sentences of 4 years or less and of more than 4 years for some less serious crimes, will be spent âafter a period of rehabilitationâ of up to 7 years after the sentence has been served, provided that no further offence is committed in that period.
| Penalty | Previous Rehabilitation Period | New Rehabilitation Period |
| Community Order | 1 year beginning with the last day on which the order had effect | Now it is the last day on which the order had effect |
| Custody of 6 months or less | 2 years | |
| Custody up to 1 year | 1 year | |
| Custody of 6 months up to 30 months | 4 years | |
| Custody of more than 1 year up to 4 years | 4 years | |
| Custody of more than 30 months up to 4 years | 7 years | |
| Custodial sentences of more than four years | Never spent | 7 years |
| Convictions for serious sexual, violent or terrorist offences | Never spent | Never spent |
Stricter disclosure rules continue to apply to jobs that involve working with vulnerable people.
The time frames that I have detailed are in relation to offenders who are over the age of 18. Slightly lower periods apply if the offender was under 18 at the time of conviction.
The new time periods are extended in the event of re-offending during the declaration period. A new conviction attracts its own disclosure period and the previous conviction and the new one need to be declared until the end of the original convictionâs active period or if later, the end of the new disclosure period applied to the more recent conviction.
Anna Denton-Jones
Refreshing Law
Your average employee and their manager are merrily commenting to each other and their colleagues using apps such as WhatsApp, because such applications are an easy way to communicate, saving  time compared to picking up the phone to each other, interrupting each other or sending a more formal email. However, to your average employment lawyer and HR professional, it can feel like the lid coming off Pandoraâs box.
You are probably all aware of recent examples of harassment where employers have got into trouble because of the content of messages on Apps (Met Police being an example that hit the news). Today I was reading about an example in âPeople Managementâ where a misogynistic older male had sent a female colleague nearly 200 messages that were wholly inappropriate for the workplace including memes, jokes that the sender probably would put down as âbanterâ and so on. In that particular case, the employee was awarded ÂŁ19,000. It is for good reason that we are all triggered with concerns as we are asked to delve into this area but that is not the focus of this thought piece. I wanted to focus on the extent to which the employer is able to access WhatsApp messages, for example, if they are stored on a company device.
This largely depends on what you have set down in writing to the employee. An employee will have a reasonable expectation of privacy in their working life, which will include their office space which also now includes their âdevice spaceâ. So, if the employee is having a chat with their friend, for example, or their partner, they are likely to have a legitimate expectation that that conversation is private in just the same way as in the Halford case years ago, where the employer got into trouble for listening to a conversation with a trade union representative on the telephone. This is why we have to draw to an employeeâs attention, what monitoring takes place and you will find statements in policies and in contracts managing that employeeâs expectation, so setting out when, for example, a manager is likely to be reviewing the content of their laptop or their device, such as if they go on holiday or if they are off sick. Just because a non-work related matter is being stored on a work laptop or a work phone or iPad, doesnât mean it loses the quality of privacy in the sense of management of expectations.
You could go further these days and spell out that if employees use things like Facebook or WhatsApp on work equipment, that they should not have any expectation of that communication remaining private. For example, if a manager does have to access the device or after the employee leaves, if they have left those applications open and we then discover something, we are able to use that evidenceâŚ
Having said all that, my experience of the Employment Tribunal system is that they do have discretion over admissibility of evidence. Whilst you may have technical legal arguments as to why something has been obtained in an inadmissible way, the Tribunals as opposed to the Courts in the UK, tend to be much more relaxed and are just interested to see the content of the messages and rule on how they affect the legal questions before it. From an employee perspective, it can be deeply frustrating to feel violated in terms of your privacy rights and then find that arguments along those lines donât get you terribly far and the Tribunalâs focus remains on the substantive claims you are bringing.
I have also recently seen the first examples of emojis causing significant offence and a harassment and victimisation claim but in this particular instance it was the crying with laugher emoji that was the issue. This illustrated that the combination of the emoji with the words used alongside it turn what might be relatively innocuous into the recipient being able to argue that it was offensive. Make sure you have updated your policies to include offence being caused by emojis…
Anna Denton-Jones
Refreshing Law
From time to time you may send out a letter offering an employee, via a protected conversation, a settlement package. In a case called Meaker v Cyxtera Technology UK Ltd, the employee, in receipt of such a letter marked âwithout prejudiceâ believed that that letter constituted an effective dismissal. This is because the letter set out the particular date the employer was proposing that he would leave, the different payments he would get and when. He argued that this was a sufficiently clear letter to be a dismissal when it came to bringing an unfair dismissal claim under the Employment Rights Act 1996.
The relevance of this in the Employment Tribunal was whether he had brought his claim in time. If the âwithout prejudiceâ letter did, as he said, constitute a dismissal then his claim was going to be out of time. Alternatively, if the date of dismissal was the date on which he received payment in lieu of notice and holiday payment, then his claim was going to be in time.
The Tribunal agreed that the âwithout prejudiceâ letter was an effective letter of dismissal but the employee appealed. The Employment Appeal Tribunal agreed that that letter created a clear decision to dismiss, even though it was marked âwithout prejudiceâ and enclosed a draft Settlement Agreement, without terms providing for a mutual termination not having, in fact, been agreed. In effect, both the Tribunals viewed the letter as terminating the employeeâs contract unilaterally.
As always the background facts were case specific â the employee had hurt his back and couldnât do his job but wasnât so severely affected that he met the test for income protection to kick in. There had been numerous discussions about what to do next. The employer sent the offer letter and draft settlement following a discussion with HR and actually processed the payment in lieu of notice even though agreement had not been reached.
The first moral of the story is never ever make payments in connection with a settlement agreement until it is all sorted!
This case has, however, given me reason to go back and review the standard kind of offer letter that I see on a regular basis: where the employers will state a termination date for example, the payment in lieu of notice that might be made, payment in lieu of holiday that might be made and an ex gratia payment that might be given in addition to things like reference and other benefits like outplacement counselling.
Employers run the risk that these letters can be seen as dismissal letters (any employee who has ever been on the receiving end of such an offer letter will tell you that they feel that itâs such a strong signal from the employer that the relationship is over and that they could not in fact continue). Is it worth drafting them in a different way to account for this risk? For example, instead of setting out a termination date, you may suggest to the employee that a leaving date would be agreed when the terms of a settlement agreement are agreed â this leaves it uncertain.
Secondly, the employer may wish to clarify that in no way should the employee take receipt of the letter as indicating any intention to bring their employment to an end.
You might also decide to say that holiday pay is something that would have to be agreed once the parties have discussed what the accrued holiday actually is.
Alternatively, you need to be aware that every time you do provide such an offer letter that it is open to the employee to argue that it brings an end to their employment, despite the fact that it is marked âwithout prejudiceâ and probably subject to a protected conversation.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel â 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
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. Â 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 ânatural justiceâ – 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 âheatâ 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 wouldnât be appropriate to just say âwhat happened on 5th August?â You would need to go further and ask âJoe 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?â
If the complainantâs 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. Â If you have any questions please do not hesitate to contact us.
Anna Denton-Jones
Refreshing Law
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