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In the Public Interest

In 1998 the New Labour Government introduced the Public Interest Disclosure Act (PIDA) to introduce a statutory protection the employees who blow the whistle on wrongdoing in the workplace. In the language of whistleblowing law when a worker blows the whistle this is a ‘protected disclosure’ and it is unlawful to place a worker at a detriment (including dismissal) for making that disclosure.

In my experience whistleblowing cases are among the most difficult for trade union reps to deal with, even more so than discrimination matters. Despite the title the initial Act did not specifically require that a protected disclosure be in the public interest. This was made clear in one of the most important cases on UK whistleblowing law, Parkins v Sodexho. This established that an employee who complains that an employer has acted unlawfully in breaching her contract of employment could rely on that complaint as a protected disclosure.

The Coalition government of 2010 onwards took a view that such a reliance was an ‘abuse’ of the whistleblowing legislation. Why it is an abuse to expect that an employer will not penalise an employee for complaining that they have been subject to unlawful conduct was never really answered, removing this option left most workers complaining of unilaterally imposed detrimental changes of contract with no meaningful remedy (constructive dismissal civil claims being inaccessible for most workers given the financial risk and costs involved).

Fast forward to 2013 and the government imposed a change in the law to require that an employee must have a reasonable belief that a disclosure is in the public interest in order to be protected; a complaint about a change in a person’s own contract would not consequently be protected. Since then there have been a number of cases where a change of contract has been imposed and an employee has continued to seek to argue that their complaint about this change was a protected disclosure because they believed that other people were also affected and, therefore, that the disclosure was in the public interest.

The most recent such case is Underwood v Wincanton PLC. In this case the claimant complained that his and other workers had been unfairly assigned work. He alleged that he had suffered detriment and dismissal because of that complaint. The EAT applied the recent finding in Chesterton that a complaint concerning or potentially concerning even “a few” workers may satisfy the public interest requirement. Therefore, the earlier tribunal’s decision that the claim should be struck out was overturned. 

Clearly, the new whistleblowing provisions do represent a reduction in the protection offered to workers but the decisions in Chesterton and Underwood do provide some consolation that where there is a complaint that the way an employer is treating a group of employees then there is the possibility that they may have some protections still under PIDA but it will be important to spell out the collective impact in complaints. Unfortunately, given the fact that Chesterton is currently under appeal to the Court of Appeal there is a risk that even this consolation will prove empty but, for the time being at least, a complaint involving a grievance of even a small group of workers may amount to a disclosure in the public interest.

 

Cases Referenced:

Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2015] IRLR 614

Parkins v Sodexho Ltd [2002] IRLR 109

Underwood v Wincanton Plc [2015] UKEAT 0163_15_2708

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The Duty to Consult

This is a very brief post on today’s interesting but, in the grand scheme of things probably insignificant Supreme Court decision in The United States of America v Nolan on the duty to consult with a trade union on redundancies.

In the case the claimant, Ms Nolan, was employed as a civilian worker in a USA military base in Hampshire (RSA Hythe). A decision was taken in Washington to close the base and, as a result, the claimant was dismissed by reason of redundancy. Because the decision was not a UK decision but based in Washington the employer did not consider the consultation requirements in the event of potential redundancies under the Trade Union and Labour Relations (Consolidated) Act 1992 applied.  There was no consultation with any employees on the closure.

The case itself is concerned with the extent to which EU directives on consultation affect public authorities, and especially public authorities of foreign governments. The upshot however is that a foreign government with employees is obligated to consult under UK and EU law when the employment is in the UK.

But, and in this case it is a big but, it is apparent that while the claimant was correct on her understanding of the law and that a protective award for non-consultation was appropriate had the USA got its act together when it first filed its defence it could have pleaded state immunity and so not be liable in UK proceedings. In this regard, it seems the victory and extension (or rather, confirmation) of consultation obligations is ultimately pyrrhic. In future the USA can probably continue to evade any fair consultation processes to UK employees by claiming state immunity from domestic challenge.

So, a victory but a pretty meaningless one.

 

Cases Referenced:

The United States of America v Nolan [2015] UKSC 63

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Time is ticking …

Yesterday I referred to the case of The Secretary of State for Justice v Hibbert. The case is not in of itself an important one as it does not alter the way employment law operates in the UK but does provide a useful reminder on the importance of erring on the side of caution when calculating the time limits for an employment tribunal claim.

In Hibbert the claimant communicated to her employer, a public sector prison, her resignation on 29 June 2012 (it was hand delivered on that day). The resignation followed a number of alleged failings by the employer in the handling a grievance she had submitted some month’s previously and concluded with the statement that there “has been a fundamental breach of my employment contract by my employer and I have no alternative but to resign my position.”

Wisely, the employer offered the option to reconsider the matter but the decision to resign was maintained. By agreement, the respondent and claimant agreed that the actual date of termination of the contract would be at the end of her notice period of four weeks (on 27 July 2012).

Section 111(2) of the Employment Rights Act 1996 requires that a complaint of unfair dismissal must be made within three months of a dismissal and the question of when a dismissal take place. In Hibbert the claimant submitted her tribunal claim before the three months window beginning on 27 July (the end of the claimant’s notice period) expired but after 28 September 2012 (the end of the three months of the date of resignation). The question for the tribunal was whether the claim was in time; the decision of the EAT was that it was not, even though both the claimant and Respondent had worked from the later date.

The important issue the case raises is that when a rep or a member is considering an employment tribunal claim for unfair dismissal, and especially for constructive unfair dismissal, it is important to err on the side of caution and treat the date of resignation as the date the resignation is made even if the employer considers the date to be later. In fact, unlike usual dismissals when the effective date of termination is normally when the dismissal is communicated to the other side which can be a few days later in constructive dismissal claims it appears the date is the date of the first communication even if an employer does not here about it for a few more days (see Horwood v Lincolnshire County Council). If in any doubt, it is normally advisable to use the earliest doubt as by not doing so it keeps alive the possibility that the tribunal will use the strict time limits to deny the opportunity of the employee to challenge their treatment.

Cases Referenced:

Horwood v Lincolnshire County Council [2012] UKEAT 0462_11_0304

Secretary of State for Justice v Hibbert [2013] UKEAT 0289_13_3007

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I Quit!

One of the situations a union rep occasionally is to talk down members who in an emotional state wish to resign their employment. They may have been publicly demeaned by their manager, been told they are subject to yet another (from their view) baseless misconduct charge against them or been told that for the third time running they’re the only member of the team who will not be receiving a performance bonus. Many will have heard of the phrase ‘constructive dismissal’ and some have thrown it at me when asking me about their predicament and the way they have been treated could in fact amount to a constructive dismissal.

But constructive dismissal is a remedy for the privileged; when you have mortgages to pay, food to put on the table for your family and no savings to ‘tide you over’ to walk out of a job is a huge step to take, and maybe even an irresponsible one, and a one I have never recommended any member to take.

But what if someone does resign and then immediately regrets the decision? On most occasions when this stage is reached I think the point of no return has already been reached; certainly a member can ask to retract the decision and an employer can agree but if there is no agreement (see Sothern v Franks Charlesly & Co). In Sothern a solicitor announced in a meeting that “I am resigning” which the employer accepted but, on the next day, returned stating if they wanted her to leave they would need to dismiss here. The Court of Appeal found that the resignation was unambiguous and therefore, as a matter of contract, the contract of employment had been terminated.

Where a member has communicated a resignation then, unless there is an agreement by the employer then the only likely recourse is to consider whether the resignation was ‘in the heat of the moment’ and not really intended. This ‘exception’ is something of a legal maneuver since when accepted, it means not that the resignation was retracted but there was in fact no resignation in the first place and was established in Martin v Yeomen Aggregates Ltd.  Where such a circumstance arises the employer should normally allow a ‘cooling off’ period although, interestingly (and counterintuitively) this will not change the date of dismissal/resignation (see The Secretary of State for Justice v Hibbert).

In Martin the plain common sense of this proposition was explained in the following way: “it is a matter of plain common sense, vital to industrial relations, that either an employer or an employee should be given the opportunity of recanting from words spoken in the heat of the moment” but this is in fact really a recantation at all as the EAT was to continue to explain:

I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgement, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.

This exception to the general rule was further clarified in Kwik-Fit (GB) Limited v Lineham when guidance was given on when an employer should not automatically ‘accept’ a resignation. Although not stating to give a comprehensive list of ‘special circumstances’ it found that there are three circumstances in which an employer should be circumspect and give a cooling off period on any resignation would be sensible:

  • when the ‘resignation’ is made in the heat of the moment; or
  • when the person resigning is being unduly influenced to do so by another party (normally an agent of an employer but not exclusively so); or
  • where there is reason to doubt the free agency of the employee (for example, momentary or long term mental impairment).

When faced with a resignation an employer is under an obligation to respond to this within a reasonable time-frame (see Western Excavating (ECC) Ltd v Sharp although often the acceptance of a resignation will be implied). If an employee has resigned and thinks they made a mistake they must act quickly, and by quickly it will usually be hours rather than days, to clearly communicate the mistake.

Hopefully, quick action will be enough to mean the employer does not ‘accept’ the resignation. However, if not then there remains the possibility that a Tribunal may find that the resignation came within a special circumstance which means the employer’s decision not to allow the contract to remain in place is in fact not a resignation but a dismissal, with the possibility of the member pursuing an unfair and/or wrongful dismissal claim.

Cases Referenced:

Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156

Martin v Yeomen Aggregates Ltd [1983] IRLR 49

Sothern v Franks Charlesly & Co [1981] IRLR 278

Secretary of State for Justice v Hibbert [2013] UKEAT 0289_13_3007

Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27

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The Risk of Appealing a Warning

I have recently been assisting a union member in a disciplinary investigation. The whole disciplinary process was a shambles and the decision highly dubious; the outcome was the member was issued a final written warning for misconduct. Both the member and I were disappointed with the outcome and could not see how the finding had been reached from the evidence that was before the employer.

And yet, when it came to the question of whether to appeal a final written warning the member, as many other have before her, was reticent to appeal. One of the reasons was fear that the outcome of the appeal could be that the warning is uplifted to dismissal. In other words, on appeal the appeal manager will decide the earlier decision was too lax, and dismissal should have been the proper sanction.

The case of McMillan v Airedale NHS Foundation addresses that very issue. The claimant, a hospital consultant, was issued a final written warning for misconduct against which she appealed. The appeal panel indicated it would also consider sanction with the possibility the sanction could be increased. The claimant sought a High Court injunction before the employer had the chance to consider this which was granted; the employer appealed. The case was focused on the the specific contract of employment but did make clear that it will be rare that an employer has a specific right to increase the sanction on appeal.

Of more help to employees is the passing comments on the ACAS Code of Practice. The ACAS Code itself advises that a fair process requires that “Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision” (emphasis added). Although the Code does not clearly set out an increase in penalty is unreasonable the accompanying (and non statutory) ACAS Guide does set out that “An appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty as this may deter individuals from appealing.”

In McMillan it is precisely this language of appealing against a warning in that was instrumental in the Court of Appeal’s finding that a where there is a contractual disciplinary policy that allows an appeal against a warning the employer is contractually prohibited from increasing a sanction on appeal.

I think therefore that although not directly on point since McMillan is a employment contract case rather than an unfair dismissal one the decision gives a lot of confidence that an employer will find it next to impossible to justify increasing a sanction on appeal to dismissal unless there is an explicit contractual provision allowing it to do so.

 

Cases Referenced

McMillan v Airedale NHS Foundation [2014] EWCA Civ 1031

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Can a Reinstatement Order be Enforced?

In law there are two main types of remedy available to a claimant pursuing litigation: legal and equitable. Legal remedies are the most common and cover things such as the payment of damages. In addition, there are equitable remedies that tend to aim to correct (rather than compensate) an unlawful act – an example in an employment context is an order for specific performance of contract.

Most employment law in Employment Tribunals, regrettably, focuses on legal rather than equitable damages. For example, if an employer decides to select a black candidate for redundancy instead of a white employee just because of her race the dismissed black employee would have a claim that her dismissal was directly discriminatory. But, even though there is no justification in law for direct discrimination (the act is literally inexcusable) an employment Judge could not, even if they wanted to, order the dismissed employee gets her job back. The only option is for compensation to be awarded.

This is an insult to the very notion of justice. An employer with deep pockets can discriminate with impunity since they know that even if a case is lodged (most are not – especially in the new fees regime) the worst that can happen is an order for compensation which they are happy to pay up (or not as the case may be!).

In unfair dismissal cases however the situation is somewhat different. Tribunals do have the power to order an employee’s reinstatement (but they hardly ever do) and they also have power to order interim relief in some unfair dismissal cases until the tribunal comes to a final decision (which again is very rare but does occasionally happen).

The difficulty in the former case is even if a case is won and a dismissal is found to be unfair and an employment judge makes the very rare decision to make a reinstatement order then the employer can often choose to ignore that order. That is certainly the approach some civil service departments have taken when faced with such an order following cases brought by PCS where an ET has made an ET order. The only consequence of such intransigence is that the compensatory award – at taxpayer expense remember – will often be a lot greater than it would otherwise be.

But when it is a public authority with an obligation to act consistently with the ECHR does this fact impose a legal obligation on the public authority to reinstate even though the primary legislation does not make such a reinstatement obligatory. That is the tantalising (and unresolved) suggestion in Bakhsh, R (on the application of) v Northumberland Tyne & Wear NHS Foundation Trust.

The claim was an application for judicial review but before summarising the High Court’s decision here it is necessary to provide a little background. The claimant, Yunus Baksch, was a self described “militant trade unionist” in Unison who was unfairly dismissed by the public authority because of his trade union activities. At a remedies hearing the public authority was ordered to reengage the claimant but when he attempted to return to work this was refused by the public authority. The reasons for this as revealed in a subsequent remedies hearing by the public authority was because of its believe that he would use the post to pursue his own agenda (i.e. continue his trade union activities). The tribunal was less than impressed with the public authority’s intransigence and found that the reason to resist re-engagement was “a decision taken by public officials to use public money allocated for the Health Service to flout an order of this Tribunal and to do so quite deliberately and without any justification so far as this Tribunal is concerned.”

There was no further remedy available through the employment tribunal system to allow the claimant to enforce the re-engagement order. In short, an employer was able to dismiss an employee for exercising his Article 11 rights, and even where that decision was found to be unlawful and reinstatement ordered an employer can disregard that order with no further action taken against them except, perhaps, some extra financial compensation.

This is why this issue was challenged by means of Judicial Review against the public authority’s decision not to re-engage the claimant without legitimate reason.  The claimant alleged that, notwithstanding the lack of an explicit obligation in UK law to reinstate the successful claimant in an unfair dismissal claim, the public authority’s obligation to act in accordance with the ECHR meant that the refusal to reinstate was unlawful. Regrettably, Bakhsh’s complaint was a case his union, Unison, failed to back.

The hearing in this JR was not to assess to determine that issue save that it was to determine whether the position was arguable (on the sift the High Court had suggested it was totally without merit). The judgement found that it was arguable that as a matter of public law, a public authority was obligated because of their duties under s.6 of the Human Rights Act 1998 to reinstate the claimant and therefore the case would proceed to a full hearing.

In the event, faced with this further challenge the public authority settled the case, at very great cost to the taxpayer. Nonetheless, the issue does raise the intriguing prospect that where a claimant is found to be unfairly dismissed that a consequent reinstatement order may be enforceable. But more importantly, it seems to be that the real prospect the case opens is in respect to where there is no equitable remedy in private law possible at all, such as discriminatory dismissals for which there is not a unfair dismissal claim possible which, equally, engage ECHR rights.

Alas, such prospects are following the settlement of the Bakhsh case only possibilities, until the next case at least …

Cases Referenced

Bakhsh, R (on the application of) v Northumberland Tyne & Wear NHS Foundation Trust [2012] EWHC 1445 (Admin)

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ACAS Code of Practice and SOSR Dismissals

There are five potentially fair reasons for dismissal under the Employment Rights Act 1996. Three of them form the majority of cases a union rep will face; these being conduct (i.e., misconduct cases), capability (i.e., sickness absence cases) and redundancy (i.e., well, the clue’s in the name!). The fourth is rare but is if there is some breach of a statutory restriction, an example is if an employee does not have permission to work under UK immigration law. And then there is the fifth which is for “some other substantial reason”, or SOSR. This is the ‘catch all’ of potentially fair reasons for dismissals and is most prone to abuse by employers.

In a misconduct case, when determining whether a dismissal was unfair an employment tribunal must have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures. But what about when a person is dismissed for SOSR?

ACAS is empowered to issue Codes of Practice under section 199 of the Trade Union and Labour Relations (Consolidated) Act 1992 to “practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations.” It is obligated under the Act to issue a code on trade union facility time and disclosure of information to trade unions but nothing else. It is therefore not obligated to provide a Code on Disciplinary and Grievance procedures or any other are of employment relations except those listed above. The Code on Disciplinary and Grievance Procedures is however undoubtedly the best known of ACAS’ codes and arguably the most significant, albeit one that in my view is tarnished by the paucity of substantive guidance.

So, there is surprisingly no statutory obligation on ACAS to provide guidance on fair dismissal processes; any guidance on SOSR dismissal is purely discretionary. The Code itself sets out that it covers grievances or ‘disciplinary situations’ which the Code states “includes misconduct and/or poor performance”. The Code therefore covers conduct and capability dismissals. ACAS expressly state the code does not apply to “redundancy dismissals or the non‑renewal of fixed-term contracts on their expiry.” It follows then that ACAS have, unhelpfully, left the question of whether the current Code of Practice applies where the dismissal is by reason of SOSR open.

The remainder of this post summarises two cases where this question has been addressed by the Tribunal. Helpfully, in both the EAT is stepped in the address the deficit in the ACAS guidance to suggest that in many SOSR scenarios the employer should consider the ACAS Code and that, failing to do so, allows a tribunal to order an increase in any unfair dismissal compensation.

In Lund v St Edmund’s School, Canterbury an IT teacher who was dismissed without notice because his employer came to the view that the employment relationship had broken down following the way Mr Lund reacted to problems with the school’s new IT systems. The tribunal found Mr Lund had not been dismissed because of his conduct but for some other substantial reason and that this dismissal was unfair. When making the compensation award for this unfair dismissal the tribunal did not consider awarding an uplift in compensation because the ACAS Code did not apply to SOSR dismissals.

The EAT found that an employer should follow the Code because his “claim concerned the conduct on his part which led the School to consider whether he should be dismissed, even if it was not his conduct but the effect of his conduct (whether on his relationships with his colleagues or the School’s belief about his commitment to the School) which was the ultimate reason for his dismissal.”

In short, where it an employee’s conduct that causes the issue for which dismissal is contemplated the ACAS Code should apply even if the end result of the procedure is dismissal for SOSR rather than conduct per se.

In Tubbenden Primary School v Sylvester, another case involving a school, a similar approach to that adopted in Lund was adopted. However, here there was no issue about the claimant’s performance at work but the fact that the claimant, the School’s Deputy Headteacher, was a friend of a former teacher from another school. That teacher had been suspended and arrested and the employer knew about this and had not expressed concerns over this. Over time this friendship, which the claimant sought to keep discreet, became known with pressure being brought on the school by parents of pupils. The claimant was dismissed because of a breakdown in in trust and confidence. Here too the EAT gave a firm indication that the ACAS Code is relevant to employers and that the principles in the Code should be applied as much as is possible to the process leading up to a decision to dismiss.

These are, I think, helpful cases. For the employee and trade union representative they provide some reassurance that when there is a complex situation which could develop into a SOSR dismissal they should be forthright in expecting that the whole process should be compliant with the ACAS Code, even though disappointingly, ACAS have made this reliance more difficult that it should be.

 

Cases Referenced:

Lund v St Edmund’s School, Canterbury [2013] UKEAT 0514_12_0805

Tubbenden Primary School v Sylvester [2012] UKEAT 0527_11_2504