May 2015 bulletin

A general election; a job application of epic proportions.

The last few weeks have been a masterclass in what makes the ideal (and non-ideal) candidate. Ability, affability, reliability, credibility, enthusiasm, clarity, confidence, demeanour. These qualities all count towards our decision as to who fits the bill. And the extent to which they’ve been demonstrated by each party leader has been for us, as recruiters, to judge.

What a responsibility. One that brings home just how important it is that your own systems of selection, for your own businesses, are right.

Just as public minds have been opened, changed and made up by the varying policies, promises and performances of our politicians, organisations benefit from a well-oiled recruitment process. One that’s fair and doesn’t pre-judge. One that’s clear about what is needed and finds it via an open, rigorous process.

Collective redundancy

USDAW v Woolworths

Remember the Woolworths and Ethel Austin case? It’s been weaving its way through the courts for some time and now, finally, we have the European Court of Justice’s (ECJ) decision.

The issue was to do with collective redundancy consultations. Employers must carry these out where they are proposing 20 or more redundancies at any establishment within a 90-day period. It’s quite onerous, involving at least 30 days’ consultation with recognised unions or – where you don’t recognise a union – at least 30 days’ consultation with employee representatives specifically elected for that purpose.

But what does “establishment” mean? Does it mean the store in which the workers are employed to work? Or do all of a business’s stores count as one establishment?

The Employment Appeal Tribunal had decided the latter. That meant that if an employer proposed 20 or more redundancies across its entire operation within 90 days then individuals involved would be entitled to be consulted collectively. That state of play didn’t go down well and so the ECJ’s decision to reverse the situation will be welcomed by employers.

The position is quite clear now, after two years of uncertainty. “Establishment” means the place where the workers are assigned to work. This will normally (but not always) mean each office/shop/factory/site – so collective consultation obligations only kick in when you are proposing to dismiss 20 or more people in a particular office/shop/factory/site.

More importantly, collective consultation obligations won’t apply where you will be dismissing fewer than 20 employees in one place, even though you may be dismissing more than 20 in total across your business – provided each establishment is considered to be separate. It means that employers with lots of small branches or bases may be more easily able to reduce staff numbers by avoiding lengthy consultations and associated costs.

For now, it’s back to the Court of Appeal for Woolworths and Ethel Austin to tie up some of the specific case issues.

Warnings issued in bad faith

Way v Spectrum Property Care

Warnings at work are a bit like stepping stones, each taking the employee a little closer to dismissal. But where it’s alleged that a warning should not have been issued, is the employer still entitled to rely on it in later disciplinary proceedings?

Mr Way was an Electrical Contracts Manager for Spectrum. He was on a final written warning and went on to be dismissed for unrelated misconduct. The company took account of the final written warning in reaching its decision to dismiss.

Mr Way had alleged bad faith on the part of the line manager who had issued the warning. The employment tribunal didn’t hear evidence about this at his unfair dismissal hearing; the dismissal was fair, the tribunal said. The Employment Appeal Tribunal held that, while Mr Way had done enough to raise a case of bad faith and the tribunal should have looked into this, it made no difference to the outcome.

But the Court of Appeal has sent the case back to a new tribunal. It will decide if the earlier warning was issued in good faith. If it wasn’t, it would have been unreasonable to rely on it when deciding if there was sufficient reason to dismiss Mr Way. And the fairness of the dismissal hinges on that.

So be clear about the significance of employees’ submissions on the motives behind warnings. Take any mention of bad faith seriously and be careful to not let it undermine the reasonableness of your disciplinary decisions. Ultimately, you have to disregard any past warning if, after investigation, you agree it was issued in bad faith.

Liability for psychiatric injury

Easton v B&Q

The state of someone’s mind isn’t always obvious. For employers who face liability for psychiatric injuries caused at work, this presents pitfalls. But the Easton case has shown that the foreseeability of injury – essential to a successful claim – is difficult for employees to prove.

Mr Easton was a successful manager at B&Q. He was diagnosed with depression, and two attempted returns to work were unsuccessful. He claimed that his initial illness was caused by occupational stress, resulting from B&Q’s negligence and/or breach of duty. He also claimed that B&Q caused his relapse by not properly managing his first return to work.

The High Court held that Mr Easton’s illness was not foreseeable. He had spent 10 years managing large retail outlets. He had no history of psychiatric or psychological problems and he gave no clues that he might succumb to illness. It was also relevant that there was nothing about store managers more generally that made this a foreseeable risk.

B&Q had not breached its duty in relation to the return to work, the Court held, even though it knew by that stage that Mr Easton was vulnerable. An employer has no general obligation to make searching or intrusive enquiries; it can take what the employee tells it at face value. Mr Easton had said he was ready to return to work. He was an experienced manager and the company was entitled to act on the basis that he would be able to assess whether or not he wished to take up a particular opportunity.

So, on the facts of this case, psychiatric injury was not foreseeable. The Court also held that B&Q’s failure to undertake a risk assessment wasn’t a breach of duty. It would not have uncovered a general risk of psychiatric injury; B&Q was a pressured working environment, but no more so than other similar workplaces.

As always, these cases are fact-specific, so tread these areas carefully.

Whistleblowing – when is it ‘in the public interest’?

Chestertons v Nurmohamed

This case tested the meaning of “in the public interest” in relation to whistleblowing. These words were introduced in 2013 to prevent a worker from simply relying on a breach that is personal to him, as opposed to one that has wider implications.

Mr Nurmohamed was a director of the estate agency, Chestertons. He claimed to have been unfairly dismissed after making protected disclosures relating to the company’s financial matters. He believed that Chestertons was deliberately mis-stating costs and liabilities, and that that affected the earnings of 100 senior managers, including himself.

The tribunal held that he had been unfairly dismissed and automatically unfairly dismissed, and had been subjected to detriments on the grounds that he had made protected disclosures. A question for the Employment Appeal Tribunal (EAT) was whether the disclosures satisfied the “public interest” requirement, triggering protection. Did disclosures which were in the interest of 100 managers do the trick?

The EAT held that the public interest test comes down to the discloser’s belief. In this case, Mr Nurmohamed reasonably believed that the disclosure was in the public interest. A relatively small group may be sufficient to satisfy the public interest test, the EAT said.

It’s something to bear in mind. Don’t assume that just because an issue may not be of significance to people outside your organisation that its relevance to a particular group won’t lead to a protected disclosure.

Box-ticking saves claim

Deangate v Hatley

This one is a bit of a tribunal technicality case, but one that shows how issues around fees are being dealt with.

Tribunals must reject claims which are not accompanied by a fee or by an application to pay a reduced fee. The three claimants in this case filed online claims the day before limitation. They didn’t send in a fee, but ticked the box on the claim form confirming that they would be making that application (which they went on to do within a week of submitting the online form).

Had they done enough to comply with the tribunal rules? The company argued that the claims should be rejected because the fee had not accompanied the claims. If the claims were to be re-submitted then they would be out of time.

It all came down to the meaning of “accompanied”. The Employment Appeal Tribunal held that it didn’t matter that the remission application wasn’t attached to the claim form at the time it was submitted. The form had given the claimants the choice of paying the fee or applying for remission and they had chosen the latter. It was enough that they showed their intention to submit the application.

Political beliefs at work

GMB Union v Henderson

With politics high on the agenda, it’s worth getting a good grasp of the legal protections that exist for people who hold philosophical beliefs. As the Employment Appeal Tribunal (EAT) pointed out in this case, these may be just as fundamental or integral to a person’s individuality and daily life as are religious beliefs.

Mr Henderson was a Regional Organiser for the GMB. A tribunal found that he was fairly dismissed for gross misconduct (upheld on appeal) but that he had suffered unlawful direct discrimination and harassment on the basis of the protected characteristics of his “left-wing democratic socialist beliefs”. The Union won its appeal of the discrimination and harassment finding.

While discrimination and harassment wasn’t proved here, this case makes some important points about the breadth of protection afforded by discrimination legislation. The tribunal found that left-wing democratic socialism is a protected belief for the purposes of the Equality Act; a decision which wasn’t challenged on appeal. The EAT went on to make clear that all qualifying philosophical and religious beliefs are protected equally in law.

The EAT also held that it is perfectly possible for a dismissal to be both fair and unlawfully discriminatory. That’s provided the tribunal makes findings of facts that are supported by evidence, that the relevant statutory test is applied correctly, and the conclusions are reached by reference to the facts found.

And finally….

It’s been reported that a bus driver from Bristol was unfairly dismissed after traces of cocaine were found in his saliva. He had never taken drugs, he said, and argued that the traces must have transferred from customers’ money to his hands and from there to the swab used for the saliva test. (Apparently banknotes do get contaminated with cocaine.) He also produced the results of a hair follicle test which showed that there had been no drugs in his body in the previous 90 days.

As well as highlighting the potential for alleged misconduct to be explained away – and the need for thoroughness in the disciplinary process – this case will be of interest to employers who rely on drug and alcohol testing at work. Remember that things may not always be what they seem.