Tag: Communication

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Anna Denton-Jones Communication Confidentiality Disclosure Employment Law Procedural Fairness Without Prejudice

Changing what you say in protected conversations

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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 “without prejudice” 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 “without prejudice” 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 “without prejudice” 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 “without prejudice” 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 employee’s contract unilaterally.

As always the background facts were case specific – the employee had hurt his back and couldn’t do his job but wasn’t 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 it’s 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 – 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 “without prejudice” and probably subject to a protected conversation.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Employment Contract Employment Law Employment Rights Act 1996 Overtime Right to Work

The right to disconnect — Tread carefully

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As more and more of us feel that we are losing the ability to switch off from work and take an uninterrupted rest, which is of course required under the Working Time Regulations, more and more discussion is taking place about whether we need some kind of “right to disconnect”.

The French led the way in 2017, amending their Labour Code to include this right for employers with more than 50 people – their law requires the employer to negotiate with employee representatives to control the use of digital tools. Italy, Spain, Slovakia, Luxembourg, Netherlands and Germany have all followed suit with Ireland being the most recent addition. In Ireland their Code of Practice requires employers to have a policy in place which confirms that employees have a right not to work outside of normal working hours, that employers and colleagues should not routinely email or call outside of those working times and the employee should not be penalised for refusing to work during non-working hours.

Whilst that Code of Practice doesn’t have the force of law of in the sense that breaching it leads to a claim for damages, it could be used as a supporting argument when somebody is bringing a claim about something like breach of working time, health and safety legislation or bullying and harassment or plain old breach of the implied term of trust and confidence for a constructive dismissal.

You may have seen email footers that more routinely now set out the times in which somebody is likely to be contactable and/or answering their messages. More and more employers are carving time out in diaries when meetings cannot be timetabled and dictating that meetings should not be timetabled at unsociable hours, save in emergency circumstances.

Initially I took the view that employers in the UK should not be waiting for our Government to legislate, (the TUC has called for the Government to include something in the Employment Bill but there is no indication that they are thinking of it) and encouraging employers to incorporate something into their policies and procedures.

However, I also remember the days before the Blackberry when my desktop PC sat on my desk in the office and I was unable to deal with email correspondence if I wasn’t physically at my desk. I remember being given a small square to stick on the back of my hand by a colleague that I did some stress at work training with for a large employer. The square would change colour back to blue when your body chemistry changed and your body was full of the stress hormones, cortisol. As an experiment I kept this and placed it on my hand the next day that I was due in the office. I remember driving to work and monitoring the situation. During my commute to work, when I was beginning to think about work, the feedback was that I was not suffering from stress. However, as I approached the door and was using my door entry fob, that is when my stress levels rose, telling me that the anticipation of what I might find when I logged my computer on was stressful to me.

I approached my desk and duly logged on and my stress levels remained high until the time when I’d managed to see what was there and prioritise what was urgent and what else could take a bit longer to deal with. Once I had a handle on the situation, the colour of the square returned to normal.

When the ‘Blackberry’ was introduced (which is a form of mobile phone for those you who are too young to remember!), allowing me for the first time to have email on the go I remember thinking it was a positive thing and that now in the short moments that you might have waiting somewhere or when you have parked your car, you keep an eye on things, delete the rubbish and then arrive back at my desk ready to roll because I would know what things I needed to deal with and when. That’s many years ago now and I’ve still always thought that the ability to have your email follow you has actually been a positive thing on balance.

What is different now stems from a number of issues:

  1. The sheer volume of emails being sent. From employees being copied in on emails that they don’t need to be, to having email conversations with colleagues when actually a quick phone call would be much more efficient, those emails where people won’t let go of the conversation and so send another email…. The list goes on.
  2. Remembering email is just a tool – it is how we use it for good or ill that counts. What I am noticing is that the pandemic seems to have put everybody to a state of ‘high alert’ where everything is urgent and everybody expects a response now and timelines have become unmanageable and isn’t it that that is the issue rather than being connected?

Any employer considering how they deal with mental health issues and wellbeing particularly as we move towards more hybrid forms of working, will need to be putting in place guidance around employees not feeling that they need to work outside their set hours but the key underlying issue is workload and I would suggest that it’s workloads in general that need to be being looked at rather than focusing solely on something like the right to disconnect. It will only ever be part of the jigsaw puzzle.

On 21 January 2021, the European Parliament approved a Resolution asking the Commission to introduce a Directive to establish the minimum requirements for remote work across the EU which would include the ‘right to disconnect’. That would require employers to establish a detailed written statement setting out arrangements for switching off digital tools for work purposes; set out systems for measuring working time; encourage training and awareness of the right to disconnect in the workplace and make sure that workers don’t suffer adverse treatment or dismissal for having exercised their right. This will undoubtedly reinforce things across Europe and employees are naturally going to start to gravitate towards those organisations that they feel are looking after them and shunning those who they feel are abusing their private lives by intruding on them.

We are likely to see rapid change in this area but I would caution employers to look at the whole picture and not just this narrow aspect. A poll conducted by Owl Labs and reported in People Management found that lots of employers are considering implementing shorter working weeks with others concerned that focusing on core working hours could be to the detriment of those who have to work in a flexible way for caring reasons including parents. This is a topic I will return to.

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Disciplinary Dispute Management Employment Law HR

Issues flowing from suspension of an employee

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So imagine you’ve just suspended an employee and packed them off with their letter setting out the terms of their suspension. You now need to address their reporting lines and it can be tempting to write an email to staff perhaps even telling them that their colleague has been suspended. I currently have an Employment Tribunal file on my desk where the communication to colleagues that took place immediately following suspension is something that the employee has leapt on in order to claim that minds were made up, his dismissal was entirely pre-judged from the moment of suspension and that trust and confidence would have been broken at that point in time.

I suggest instead that you speak to employees. The reason that I am suggesting speaking to colleagues is that you will not then have paperwork which will form part of any data protection subject access request when it is inevitably made.

When you speak to the colleagues you should inform them that their line management is temporarily changing and explain who they are now reporting to and, if they are required to take on some of the suspended employee’s duties, state this fact. You would reference the suspended employee as being temporarily absent from work. Curious colleagues are bound to ask why but I would just say that this is “confidential”. You can always bat it back to the colleagues by saying that if it were the other way around, they would want confidentiality to be protected and when most people think about it like that, they can understand.

You may be worried about the suspended employee trying to affect the investigation in some way by speaking to their colleagues. If that is the case there is nothing wrong with you, when you have this conversation, explaining to employees that there is nothing wrong with them having purely social contact with their absent colleague but they should not be discussing work with them.

It is entirely possible that the suspended employee themselves will tell all and sundry that they are being suspended and they are being investigated. If that is the case and people are querying the position, then you are free to confirm that you would have preferred to keep the matter confidential but now that they employee has explained to them, that yes there is an investigation and they are duty bound to co-operate with that investigation if they are called to do so. I wouldn’t go into any details about what the investigation is about.

In general, I would leave it to the investigator to plan out how they are going to conduct their investigation, who they are going to speak to and to brief any witnesses in terms of issues around co-operation with the investigation, confidentiality, the fact that the suspended employee may well get to see an investigation report etc.

Anna Denton-Jones
Refreshing Law