Category: HR

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Compensation Employment Law Employment Rights Act 2025 HR Lousha Reynolds Pay

Navigating the Backdated Statutory Mileage Rate Increase: An Employer’s Action Plan

Aerial shot of a car driving on an empty main road between open fields in Bedfordshire, England.

For the first time in fifteen years, employers and employees alike are seeing a substantial change to the statutory mileage allowance rules. On 21 May 2026, the government issued a written ministerial statement confirming a newly announced increase in the statutory mileage allowances for cars and vans. Crucially, this change applies to the 2026-27 tax year and has been backdated to 6 April 2026. HMRC has already updated paragraph EIM31240 of its Employment Income Manual to reflect the new structure, and the government has confirmed it will legislate retrospectively for this change at the earliest opportunity.

This unexpected mid-quarter update introduces a layer of retrospective compliance for HR and payroll teams, who must now assess how they manage expenses paid out over the last two months.

The New Mileage Allowance Rates at a Glance

The revised Approved Mileage Allowance Payments (AMAPs) framework breaks down as follows for cars and vans:

Vehicle TypeBusiness MilesNew Rate (From 6 April 2026)Change From Previous Rate
Cars and VansFirst 10,00055p a mile25p a mile
Cars and VansAdditional25p a mileRemaining unchanged

Key Considerations for Employers and Payroll

With the increases backdated to the start of April, your immediate focus should shift to assessing your current expense policies and payroll reporting. Employers should accordingly consider increasing the amount that they reimburse their employees to reflect the revised rates. This includes making a strategic decision on whether to uplift payments already made for April and May 2026 to reflect the backdated increase.

If your organisation has historically aligned its mileage reimbursement with the maximum statutory threshold, you face two distinct operational scenarios depending on your recent practice:

  • Employers reimbursing at the old 45p rate: If you have been paying the previous maximum of 45p during April and May, you may want to issue top-up payments of 10p per mile for those journeys. Employees who have been or will be reimbursed less than the revised 55p rate may wish to consider claiming tax relief for the difference directly from HMRC.
  • Employers reimbursing above the old 45p rate: If your business chose to reimburse staff above the previous 45p limit, you would have previously treated the excess as taxable income. Because the tax-free threshold has retroactively jumped to 55p, you may need to revise your payroll calculations for April and May 2026 to correct any overpaid tax and National Insurance contributions.

Key Considerations for Employers and Payroll

The ripple effect of this announcement extends beyond standard employment contracts. HMRC simultaneously updated paragraph BIM75005 of its Business Income Manual and paragraph PIM2220 of its Property Income Manual on 21 May 2026. These updates reflect the identical 55p revised mileage rate for the 2026-27 tax year onwards for self-employed traders and unincorporated landlords claiming fixed rate deductions for motoring expenses. This brings welcome parity to the wider business community, ensuring that sole traders and landlords can also benefit from heightened fixed-rate relief on their business journeys.

Reviewing your expense policies today will ensure you stay ahead of the legislative curve. If you need support updating your employment contracts, refreshing your staff expense policies, or navigating the complexities of retrospective payroll adjustments, please reach out to the team at Refreshing Law.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

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Lousha Reynolds
Refreshing Law

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Duty of Care Employment Law Employment Rights Act 1996 Health and Safety HR Unfair Dismissal

Guest Blog | UK workplace drug testing

Forensic Resources Ltd logo

How to avoid unfair dismissal pitfalls

Ensuring a safe and productive workplace is a fundamental responsibility for employers, sitting alongside statutory duties under the Health and Safety at Work etc. Act 1974.

For many organisations, this includes a Drugs and Alcohol Policy supported by workplace testing. When carried out correctly, testing protects employees and reduces risk. However, when done hastily, employers expose themselves to significant legal risk.

At Forensic Resources Ltd (FRL), we frequently assist HR professionals and employment lawyers in navigating this delicate area. The biggest challenge? A misunderstanding of what tests actually prove — and when it is legally safe to act.

Point of Care Testing (POCT): Useful, but presumptive only

Many employers favour Point of Care Tests (POCTs) — quick, onsite screening tests (saliva or urine) that give an immediate indication of substance presence.

The benefits of POCT:

  • Speed: Immediate results.
  • Cost-Effective: Relatively inexpensive.
  • Risk Management: Supports immediate decisions, such as temporarily removing an employee from a safety-critical role.

The critical limitation:

POCT results are presumptive only. This is a position recognised within UK forensic toxicology standards. They cannot confirm:

  1. If the reading is analytically accurate.
  2. If the substance is an illicit drug or a lawful prescription medication.
  3. If “cross-reactivity” has produced a false positive.

Crucial Distinction: At this stage, results should be described as “non-negative,” not “positive.” No employee should ever be dismissed based solely on a POCT result.

Why laboratory confirmation is essential

A non-negative POCT result is only the first step. Employers must send the sample to an accredited forensic toxicology laboratory for confirmatory analysis.

In the UK, laboratories should be accredited by UKAS to ISO/IEC 17025, the recognised standard for testing competence. Confirmatory analysis uses validated techniques like Gas Chromatography–Mass Spectrometry (GC-MS) to:

  • Identify the exact drug or metabolite present.
  • Quantify the levels detected.
  • Eliminate false positives.
  • Produce results suitable for disciplinary and tribunal proceedings.

Skipping this stage undermines procedural fairness and leaves the employer legally vulnerable.

The “medication” factor: understanding context

A confirmed finding does not automatically indicate misconduct. Employers must consider if the drug detected is a metabolite of lawful medication.

  • The Codeine Example: Codeine is a lawful medication that metabolises into morphine. A morphine finding may reflect legitimate codeine use rather than illicit opioid consumption.
  • Other Triggers: Antidepressants, ADHD medications, and sleep aids can legitimately influence toxicology results.

If HR teams do not understand the results, they should seek a formal toxicology report or pharmacological opinion to determine whether the findings indicate impairment rather than mere presence.

A fair and defensible process: 7 steps for employers

To minimise risk and ensure a fair investigation under UK employment law, follow this structured approach:

  • Maintain a Clear Policy: Reflect HSE and GOV.UK guidance regarding consent and proportionality.
  • Use Accredited Laboratories: Ensure results are scientifically and legally defensible.
  • Ensure Chain of Custody: Maintain sample integrity from collection to reporting.
  • Wait for Confirmation: Never discipline based on POCT results alone.
  • Seek Expert Interpretation: Understand why a result occurred.
  • Consider Mitigation: Evaluate medical explanations as part of a fair investigation.
  • Document Everything: Build a strong evidence trail for potential tribunals.

Why being “test-ready” matters

Workplace drug testing is time-critical. Drugs remain detectable for a finite period; delays in sample collection can result in the permanent loss of evidence.

Furthermore, delays have cost implications, such as prolonged suspension on full pay. Being pre-registered with a laboratory provider allows for same-day sample collection and fast-track results.

About Forensic Resources Ltd (FRL)

A premier forensic science consultancy firm, FRL specialises in providing expert witness services to legal teams and insurance firms. If you’re implementing or reviewing a drug testing process — or if you have a live case requiring expert input — we’re here to help with clear, scientifically robust guidance every step of the way.

029 2267 6699

info@forensicresources.co.uk

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Abi Carter
Forensic Resources Ltd

Key takeaways for HR professionals (FAQs)

Can I dismiss an employee based on an onsite “Instant” test?

No. HSE guidance and UK employment law principles require laboratory confirmation (GC-MS/LC-MS) before drawing conclusions of misconduct.

What is the difference between “Non-Negative” and “Positive”?

A “non-negative” is an unconfirmed screening result. A “positive” is a legally defensible result confirmed by a UKAS-accredited laboratory.

Does a positive result always mean impairment?

Not necessarily. Interpretation by a toxicologist is required to differentiate between illicit use, historical use, and lawful prescription medication.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

Categories
Disability Duty of Care Employment Law Equality Act 2010 Health and Safety HR Lousha Reynolds Mental Health Neurodiversity Reasonable Adjustments Risk Assessment Sick Pay Stress

Stress at Work: More than just a bad day

Woman with head in her hands leans over a desk with a laptop in front of her

As we mark Stress Awareness Week 2026, we’re looking at the legal framework that governs mental health in the UK workplace.

Stress isn’t just a HR issue. It’s a significant legal responsibility. Whether you’re managing a team or navigating your own workload, understanding the boundaries of the law is essential for a healthy, compliant work environment.

1. The legal duty of care

Under the Health and Safety at Work etc. Act 1974, employers have a statutory duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees. This isn’t limited to hard hats and trip hazards. It includes mental wellbeing, too.

  • Risk Assessments: Just as you’d assess the dangers of a faulty wire, you must assess the risk of work-related stress.
  • The Management Standards: The HSE (Health and Safety Executive) outlines six key areas that, if not managed, lead to poor health and reduced productivity: demands, control, support, relationships, role, and change.

2. When stress becomes a disability

While stress itself isn’t a disability, the effects of prolonged stress, such as clinical depression or anxiety disorders, often meet the criteria under the Equality Act 2010.

An employee is considered disabled if they have a physical or mental impairment that has a “substantial and long-term adverse effect” on their ability to carry out normal day-to-day activities.

What this means for employers:

  • If stress triggers a disability, you have a legal obligation to make reasonable adjustments. This might include:
    • Flexible working hours or “soft” start times.
    • Redistributing certain tasks to other team members.
    • Providing a quieter workspace or more frequent breaks.

3. Avoiding a personal injury claim

If an employer is aware (or ought to have been aware) that an employee is struggling and fails to act, they risk a claim for negligence. For a claim to succeed, the psychiatric injury must have been “reasonably foreseeable.”

The Red Flag Rule: If an employee tells you they’re struggling, or if their performance suddenly dips alongside signs of burnout, the clock starts ticking. Ignorance is rarely a valid legal defence once the signs are visible.

4. Practical steps for Stress Awareness Week

To stay on the right side of the law (and keep your team happy), consider these three actions:

ActionPurpose
Wellness Action Plans (WAPs)A proactive tool for employees to share what helps them stay well.
Training for ManagersEnsuring supervisors can spot signs of burnout before it becomes a grievance.
Open CommunicationReducing the stigma so employees feel safe raising issues early.

Work-related stress is often a symptom of systemic issues rather than individual weakness. By treating mental health with the same rigour as physical safety, UK businesses can avoid costly employment tribunals and, more importantly, foster a culture where people actually want to work. This year’s campaign, led by the Stress Management Society, focuses on the theme #BeTheChange, encouraging small, consistent, and positive actions. We think that’s a great place to start.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

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Anna Denton-Jones Communication Employment Contract Employment Law HR Offer of Employment Recruitment Video

Video | Offers vs contracts

Legal contract papers

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing a case she read about recently which relates to an issue that she does see cropping up from time to time around what has been offered at interview and in the initial offer letter versus what is in the contractual documentation later on.

Anna Denton-Jones
Refreshing Law

 

Categories
Duty of Care Employment Law Health Conditions HR Stress

Guest Blog | How HR can take a trauma-informed approach to support employees

Platfform Wellbeing's HR support services

All businesses have a duty of care to their employees and safeguarding their mental health is a fundamental part of this. April is National Stress Awareness Month and a time to reflect on the negative impact of stress in the workplace.

We all know that stress is one of the most common causes of long-term work absence in the UK but how much do HR professionals understand about the impact that trauma can have as a contributory factor to stress and work burnout?

It’s important to understand what psychological trauma is and how it can have a significant impact on an individual’s mental and physical health. Trauma-informed care is an approach that recognises the impact of trauma on individuals and seeks to create a safe and supportive environment for healing.

So how can HR take a trauma-informed approach to supporting employees through work stress and burnout?

Create a safe and supportive environment

Creating a safe and supportive environment is an essential part of a trauma-informed approach. This includes:

  • Establishing trust: Building trust with employees is essential. This can be achieved through open communication, active listening, and a non-judgmental approach.

  • Fostering a sense of safety: Employees need to feel physically and emotionally safe in the workplace. HR can ensure that the workplace is free from harassment, discrimination, and other forms of violence.

  • Providing choice and control: Employees need to feel that they have choices and control over their work environment. HR can provide employees with opportunities to give feedback, participate in decision-making, and have a sense of autonomy.

  • Empowering employees: Empowering employees to take control of their work environment and manage their stress can help them feel more confident and reduce the risk of burnout.

Offer resources and support

HR can offer resources and support to help employees manage their work stress and prevent burnout. This may include:


  • Counselling services: Counselling services can help employees manage their stress and cope with trauma.

  • Training and education: Providing employees with training and education on stress management and mental health can help them understand the impact of stress and develop coping strategies.

  • Flexible work arrangements: Offering flexible work arrangements such as hybrid or flexible hours can help employees manage their workload and reduce stress.

  • Peer support: Providing employees with peer support networks can help them feel connected and supported in the workplace.

In summary, taking a trauma-informed approach to supporting employees through work stress and burnout is essential for promoting employee wellbeing and preventing burnout.

HR can create a safe and supportive environment, offer resources and support, and empower employees to take control of their work environment. By doing so, HR can help employees manage stress and prevent burnout, leading to a more productive and healthier workforce.

If you would like to learn more about becoming a trauma-informed organisation, you can find further information on the Platfform Wellbeing website.

Platfform Wellbeing
Platfform Wellbeing is a commercial training, workplace wellbeing and counselling service aimed at organisations across the private, public and third sector. It offers kind, compassionate responses at times of distress and supporting organisations with creating cultures and teams than enable people to thrive. We are part of Platfform, a mental health and social change charity.

 

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Anna Denton-Jones Duty of Care Employment Law Employment Rights Act 1996 HR Mental Health Pay Sick Pay Stress

Are you entitled to withhold SSP?

View of the City of London at sunset

You’ve probably noticed wording in your sickness policy that makes it clear if employees don’t comply with your procedure, they risk the payment of Statutory Sick Pay (SSP).

It is not open to an employer to withhold SSP where the employee provides medical evidence from their GP late. For example, you may require the certificate to be given to you on day 8 of absence, and the employee might not get around to giving you a certificate until day 10.

An employer is allowed to not pay SSP if the employee has failed to notify them of the absence, and there is no good reason to cause the delay in notification. For example, the employee is supposed to notify you of their absence on the first day of incapacity – if they didn’t notify you and essentially were absent without leave for the first few days and told you on day 8, then potentially Section 156(2)(a) Social Security Contributions and Benefits Act 1992 applies. So, for example, if the employee had gone AWOL effectively for the first week and then telephoned in, the employer is entitled to withhold for the duration of the delay.

Employers may introduce something more onerous as a matter of contract. For example, that the employee has to report in sick by a particular time on the first day of their absence and thereafter at regular intervals. That cannot override the statutory scheme when it comes to SSP but if more generous contractual sick pay is available, such as payment for the waiting days when SSP doesn’t apply or payment of full pay or something more than SSP, then the employer will be able to follow what they have said in their contract and withhold the extra payment if the employee has not complied with the rules.

Under SSP rules, HMRC in its www.gov.uk page ‘Statutory Sick Pay: employee fitness to work’, states that “if an employer decides to stop payment of SSP, they should explain their decision to the employee”. The employee will be entitled to a written statement from the employer and can seek a formal decision on their entitlement from HMRC Statutory Disputes Payment team. You might like to refer to the ‘Stop Payment of SSP Section’ of that Guidance. There is an example letter to notify the employee that you will not be paying them.

There will be occasions where the employer has real reasons to believe that the person may not have been unfit for work. For example, they may have requested annual leave and that request has been rejected, so the individual then phones in sick. Clearly the employer would have to do as much investigation as they possibly could around the circumstances. For example, if the individual provides a doctors fit note, HMRC advises that that should be accepted as conclusive proof of incapacity for SSP purposes, even if there is very strong evidence to the contrary. The employer might need to get their own medical advice or to ask HMRC to arrange for the employee to be examined by the medical services team. Clearly that only works in the case of a health condition that is likely to be ongoing.

It might be possible to ask, for example, a GP who has provided a backdated sick note when their consultation with the individual was and providing evidence timing that the employee has been covering up them being perfectly well on the days in question. Evidence as to their activity from social media may also be relevant, eg. photographs of the employee swanning around Spain when the employee told the employer they were in bed and that they were so unwell that they couldn’t get up.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Employment Contract Employment Law Fraud HR Offer of Employment Recruitment

The implications of falsehoods in CVs

Royal Courts of Justice, London

A Court decision caught my eye when I was reading the legal news. Firstly, the case is interesting because it went all the way to the highest court in the land, the Supreme Court. Secondly, the Supreme Court overturned the decision of the Court of Appeal. Thirdly, the former employee had been ordered to pay back £97,000 having falsely claimed, in a job application, that he held qualifications and relevant work experience that he did not in fact have.

The case involved somebody called Jon Andrewes who had worked as the Chief Executive of St Margaret’s Hospice in Taunton. He claimed he had a university degree, relevant work experience and even a PhD from Plymouth University, insisting on being called Dr.

There was nothing wrong with his performance in the job, indeed the fact that he worked from 2004 to 2015 and was regularly appraised as either a strong performer or outstanding performer shows that he had not aroused suspicion at an early stage. He had also used similar lies to be appointed to roles as a Director and then Chair of the Torbay NHS Care Trust and as Chair of the Royal Cornwall NHS Hospital Trust.

At some point he was obviously caught out and the whole deck of cards came crashing down.

In 2017 he pleaded guilty to obtaining pecuniary advance by deception and two counts of fraud and was sentenced to 2 years imprisonment. The Proceeds of Crime Act of 2002 sets out a confiscation regime whereby criminals are relieved of their ill-gotten gains. In this case, the Crown were seeking an order that his entire earnings during the period of employment under false pretences should be confiscated. This would have been £643,000 (net earnings).

The Court of Appeal had held that it would be disproportionate to expect him to pay something back.

The Supreme Court sought a middle way and ordered he pay £97,000. There was clearly a feeling that to deprive a person of their entire earnings when the employee had apparently done a good job, would be a step too far but they also declined to agree with the employee’s submission that a ‘take nothing’ approach was appropriate. Despite the fact that he had done a good job, the Hospice and two Trusts had sought a person of honesty and integrity and would have chosen another candidate if they had known about the deception.

In carving this middle route, the Supreme Court was clearly trying to represent the difference between the earnings made as a result of the CV fraud and a lower amount of earnings that the defendant would have made had they not committed the fraud.

The same principles will apply whatever the seniority of the employee.

One of the key issues arising in the case is what background checks were done to verify qualifications and information given on the CV. Just because somebody is in a very senior position, all the status doesn’t mean we should not subject them to checks that we might make for more lowly employees. I am not sure how the deception was identified in the end but it does seem that at least 3 HR Departments have some egg on their faces?

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Holiday HR Part-Time Working Pay

Holiday calculations for part year workers

View of the City of London at sunset

Given we are in peak holiday season, are you happy you are paying people correctly when they take annual leave? The Supreme Court, i.e. the highest Court in our land has just ruled on the case of a teacher whose employment contract meant that she only worked for a proportion of each year, so 32 weeks in total over 3 terms ie;- part of the year. Others might work part of the year such as a ‘season’ on a farm or on a holiday site.

The employer had calculated the entitlement using the shorthand of 12.07% of annualised hours. This number had become standardised shorthand – 12.07% being the figure obtained using the standard working weeks in a year which is 46.4 (52 weeks less the statutory 5.6 weeks holiday entitlement) and 5.6 weeks being 12.07% of 46.4 weeks).

The employee argued they should have looked at her wages during the 12 week period prior to her taking holiday to calculate her average pay over that period. This was the approach ACAS recommended for workers employed on a casual basis or with irregular hours (they have since removed this from their site).

If you used the calculation favoured by the employee, she would be paid more when she took annual leave, in fact 17.5% of her annual earnings.

Since the date of the case, under the Employment Rights Act, if a worker doesn’t have normal working hours, a week’s pay is taken to be their average pay over a 52 week period and if there are weeks in which there is no remuneration being payable such weeks are excluded from the calculation with earlier weeks brought into the reference period instead. This is since April 2020 but in this particular case, the individual was referring to a period before then when the reference period was 12 weeks, excluding the weeks on which she didn’t work).

I suspect often employers who are looking at average pay just work out average pay over the 52 week period and forget to discount weeks in which there are no earnings?

I won’t bore you with the arguments that went back and forth between the various levels of Tribunal and then the Court of Appeal before the Supreme Court but essentially, the Supreme Court has agreed with the Court of Appeal decision. The percentage method of calculation (12.07 or 17.5%) has been rejected comprehensively and should no longer be relied on. They confirmed the average wage calculation instead This should be followed even if it results in part year workers receiving a higher proportion of their annual earnings as holiday pay.

It also means that there is now a dichotomy between accrual of annual leave which accrues in proportion of the work done and pay in respect of such leave which has to be calculated by reference to remuneration during periods of actual work. When it comes to accrual, in the first and last years of employment, accrual is based purely on the passage of time under the Contract – it doesn’t have any relationship to the amount of work done in that time. Non-working weeks could be included in calculating accrued holiday entitlement but are ignored when calculating holiday pay.

In practical terms, this is likely to be problematic, mainly for schools, where somebody does not have regular working hours rather than if somebody’s salary was annualised and paid in 12 monthly instalments, they are already receiving the correct amount of pay during weeks of holiday as during working time.

For those employers who have casual workers, they need to make sure that they are using the calendar week method. If a worker takes a week’s holiday, they should be paid a week’s pay according to the statutory formula which may produce a different rate of pay each time a holiday is taken depending on what their earnings have been in the 52 weeks that they have last worked prior to the calculation being done (or the period of employment if shorter).

That still leaves us with the difficulty in expressing holiday entitlement in contracts. If a worker does a different number of hours or days each week and sometimes may work no hours at all, what does the employer say in terms of quantifying their annual leave entitlement? Here the Working Time Regulations don’t provide any clues. One possible solution as per the government guidance which sits alongside the regulations is to base it on the number of days in an average week of a representative period, e.g. if the average week is 2.5 days long then a day’s holiday equals 1 divided by 2.5 or 0.4 of a week. If the employee took 2.5 days off it would reduce their holiday entitlement from 5.6 weeks to 5.2 weeks.

It is possible that we may now see a flurry of deductions claims from workers who have had their holiday calculated on the percentage. Those claims generally have to be brought within 3 months of the final pay day or the most recent pay day that they say has been calculated erroneously and can go back for 2 years back pay from the date of the claim.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Conflict Disciplinary Dismissal Employment Contract Employment Law Grievance HR

Employees bringing employers into disrepute

View of the City of London at sunset

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:

  1. The employee had not been informed of the specific allegation which led to his dismissal; and
  2. 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

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Anna Denton-Jones Employment Law Holiday HR Pay Video

Video | Shifting sands and holiday pay

View of the City of London at sunset

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