Human Rights - Article 6 · Misconduct · Unfair Dismissal

Salmond, Natural Justice, and Unfair Employer Misconduct Investigations

If you are a trade union representative one of the go to arguments you will often employ is that the employer is acting contrary to natural justice. Natural Justice can be summarised as comprising of two components: 

  • That a person accused of wrongdoing will be told what exactly they are accused of, given the chance to provide a defence,  reasonable time to prepare, be provided access to the evidence against them before a decision on whether they are responsible for the misconduct is made.
  • That the investigation and misconduct will be taken by persons who are impartial and have not been previously involved in any investigations.

That, broadly stated, is all that natural justice requires.

Natural justice has recently hit the headlines in the context of Alex Salmond, the former SNP leader, and his Judicial Review against the Scottish Government.

A year ago, in the wake of the #metoo movement two sexual harassment complaints were made against Mr Salmond regarding his time in government. The government, quite properly, launched an investigation into the allegations. The Permanent Secretary Leslie Evans (head of the Civil Service for the Scottish Government) appointed an HR investigator to investigate the allegations. However that HR Officer had already had some involvement in the concerns and had spoken to the complainants about the matters some time earlier. 

The Court found this was a very serious procedural error, that amounted to a breach against Alex Salmond’s natural justice rights, specifically the right of accused to be subject to an impartial investigation without the appearance of bias. Instead, having been investigated by an party with previous knowledge and involvement of the matter at hand the court took the view that this was a fundamental error and, in so doing, the results of the investigation could not stand. In making the judgement the court did not find Alex Salmond had not engaged in sexual harassment but that any investigation that had been undertaken could not stand because of bias. 

The court, in my view were right to do so in recognition of the rule of law and the need for fair processes to be scrupulously applied to all. If there was a view that a quick investigation could resolve the matter then the Scottish Government made a serious error because, as the Guardian notes, this error has caused harm to the government’s reputation and should further complainants contemplate coming forward they may now be dissuaded from doing so. The judgement of the court recognises that its requirement to apply the rule of law would make it prejudicial to allow a procedural unfair investigations to stand and to dissuade the investigators from pursuing arbitrary investigations in the future. 

What then does this mean for employment investigations? One would think, that the Employment Tribunal would take a similar approach, especially given the centrality of rule of law considerations in the Supreme Court’s recent consideration of employment justice in R v Unison (the ET fees case); such a view is false, however. In fact, the court of Appeal have expressly stated that the principles of natural justice do not form a basis a decision that an employee was unfairly dismissed. In Slater v Leicestershire Health Authority [1989] IRLR 16 it was determined that: 

[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . . I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [Tribunal] consider the question raised in s[98(4)] of the Act.’

I think this is wrong. Why should the remedy in public law whereby a serious procedurally unfair investigation results in that investigation being quashed not have a similar counterpoint in employment law, for example that any dismissal will be unfair. Similar public policy arguments would apply such that such a remedy would encourage employers to invest appropriate due diligence in misconduct investigations so as to prevent errors and also dissuade employers from pursuing arbitrary investigations for certain staff (it is a rare trade union victimisation case, for example, that will not involve an employer pursuing overblown or trumped up disciplinary accusations against them in order to rid themselves of a troublesome (aka effective) union rep).

Instead,  the employment law rather than adopting the rule of law approach seen above has required an additional requirement, as Slater itself set out in the excerpt above. Not only must there be a serious procedural breach of justice but the employment tribunal must consider whether this breach amounts or contributes to a separate breach of section 98(4)  Employment Rights Act 1996, namely that the conduct of the employer was outside the range of reasonable responses.

One obvious counter-argument is that the requirements of natural justice in an employment context are summarised in the ACAS Code of Practice on Disciplinary and Grievance Procedures  and a failure to follow these may give rise to a successful unfair dismissal claim. This is true, and many, if not most, serious procedural breaches of natural justice will be found to be unfair dismissals. This is not adequate in my view. First, unfair dismissal is only an option for a segment – and ever decreasing segment – of the UK workforce, being those who are employees and also those with two years continuous service. Second, there is no necessary correlation that breaches of natural justice will result in an unfair dismissal

The recent decision in Hargreaves v Manchester Grammar School is a case in point. A teacher was accused of misconduct, and the school investigated this and obtained numerous witness statements. Three of this gave evidence that persons present had witnessed nothing untoward but the employer did not disclose these the the teacher. The teacher was in due course dismissed.

Natural Justice would require that evidence against an alleged wrongdoer should be disclosed, but so should evidence that is potentially exculpatory. In Hargreaves the teacher understandably complained that the employer had kept evidence from him that could point his innocence from the accusation and that this was a serious breach of natural justice. However, despite the employer’s deliberate decision to exclude evidence from Mr Hargreaves, and thereby depriving him of the opportunity to make submissions to the decision maker on the basis of these statements the Employment Appeal Tribunal   affirmed the Employment Tribunal’s decision that because the decision was not outside the range of reasonable responses the employer’s investigation was fair.

And so we are left with the position that an employer has deprived an employee under suspicion of wrongdoing the opportunity to make focused submissions to the employer on how the evidence the employer had gathered pointed towards his innocence on the basis that the employer decided it would not assist the employee based on their understanding of the employee’s case. And, having done so, the employer can point to the EAT’s decision as vindication of the employer’s (mis)conduct.

It probably is true that had the employee had sight of the statements the outcome would have been the same but that is not the point. The issue is, like the decision in Alex Salmond’s case investigations should appear to be and appear to be impartial, they should not endorse an investigator’s decision to tie an accused employee’s hands and prevent the opportunity of presenting as effective a defence as possible. Unfortunately, unfair dismissal law in departing from rule of law approach does not do this and so offers inadequate incentive to employers  to be irreproachable in their conduct of investigations. If one were to ask Leslie Evans I doubt she would express the same view in respect to administrative law.

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Equality Act 2010 · Unfair Dismissal

Discriminatory Dismissals and the Band of Reasonable Responses

In the 2017 case of O’Brien v Bolton St Catherine’s Academy the Court of Appeal considered the question of whether the test of whether a discriminatory dismissal under section 15 of the Equality Act 2010 was necessarily an unfair dismissal.

The key issue was whether the test as to whether a dismissal was “a proportionate means of achieving a legitimate aim” was the same as the test for unfair dismissal in section 98(4) of the Employment Rights Act 1996, what is commonly referred to as he band of reasonable responses test.

In the original Employment Tribunal hearing after having reviewed the processes that led up to dismissal of a disabled employee for reasons relating to her disability the Tribunal declared that:

Any reasonable employer would have conducted the appropriate balancing exercise required of it under s15 Equality Act before reaching the decision to dismiss, before upholding that decision on appeal. Both panels, at the Medical Incapacity Hearing and at the Appeal hearing, failed to carry out that balancing exercise. The respondent was well aware that the claimant was a disabled person within the meaning of the Act. In all the circumstances we find that dismissal fell outside the band of reasonable responses because it was a discriminatory act

The Tribunal found therefore that “because” the dismissal was discriminatory (and therefore unlawful) it was outside the band of reasonable responses and, therefore, also an unfair dismissal. The fact of the case do, to me, give me pause as to whether the dismissal really was discriminatory and this decision was reversed by the EAT.

What is of interest to me is is the determination by Underhill LJ in paragraphs 53-54:

However the basic point being made by the Tribunal was that its finding that the dismissal of the Appellant was disproportionate for the purpose of section 15 meant also that it was not reasonable for the purpose of section 98 (4) … I accept that the language in which the two tests is expressed is different and that in the public law context a “reasonableness review” may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act.

At issue is the what a Tribunal needs to decide when considering a discrimination and an unfair dismissal case. In Iceland Frozen Foods Ltd v Jones, the seminal case that codified the band of reasonable responses test, two of the five key considerations were that:

  • in applying the section an employment tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
  • in judging the reasonableness of the employer’s conduct an employment tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

The court further observed that

  • in many (though not all) cases there is a “band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

The tribunal therefore is not asked to decide ‘should the employee have been dismissed’ but rather ‘did the employer act reasonably in deciding to dismiss the employee’ and later cases have clarified that the tribunal is prohibited from adopting a substitution mindset (thinking about what decision they would have made), their task is to assess the decision maker’s decision not to make the decision again. Whilst there is an objective decision in play it is only in respect to the findings of fact as to whether the subjective decisions of the dismissal decision maker were ‘reasonable.’  By (apparent) contrast the task in a discrimination claim is to fact decide the issue and make objective decisions. But are the two regimes really different? Underhill LJ continues:

The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat – what is sometimes insufficiently appreciated – that the need to recognise that there may sometimes be circumstances where both dismissal and “non-dismissal” are reasonable responses does not reduce the task of the tribunal under section 98 (4) to one of “quasi- Wednesbury” review: see the cases referred to in para. 11 above. Thus in this context I very much doubt whether the two tests should lead to different results.

When this judgement was published I worried about the implications since, in practical terms it suggested that the threshold under which a finding of discrimination should be made is the substantially the same as when considering whether a decision was in the range of reasonable responses. The problem with this is that this test is, in my view, more onerous than a balance of probabilities one with the result that it would be harder for a worker to establish that their treatment was discriminatory, especially where there is also a claim of unfair dismissal.

Thankfully, last year in City of York Council v Grosset the Court of Appeal clarified matters somewhat. Commenting on this suggestion that the test for a discriminatory dismissal and an unfair dismissal are the same was rejected:

I think it is clear that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same.

I don’t think it was in any way clear that the comments were just related to “the particular facts of that case” but, nonetheless, the rejection of the proposition that the two tests are the same is a welcome one.

Direct discrimination · Equality Act 2010

Eye of the Beholder

It is well known that the Equality Act recognises nine ‘protected characteristics.’ In the majority of cases the claim will require that a person holds that protected characteristic to bring a claim. Thus, one cannot make a claim in the employment tribunal that your employer indirectly discriminates against older workers if you are in fact an older worker, and neither of course an your employer as failed to make reasonable adjustments if you are not disabled.

On the surface this seems sensible and obvious. However, in the case of claims of direct discrimination (and harassment bit I do not address this here) there is an occasional exception.

Direct discrimination is defined in section 13(1) of the Equality Act 2010 as follows:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

What is clear is that this definition means that if, for example, a woman believes they have been treated less favourably because of their sex – perhaps having been refused a job or been dismissed then they have grounds to make a claim of direct sex discrimination because they have been treated less favourably than they would have been if they had been male. However, the careful reader will note that the definition of direct discrimination does not say a person is discriminated because of their protected characteristic but simply a protected characteristic. 

This means that a person can, in some circumstances, successfully make a direct discrimination claim even if they do not hold the protected characteristic.

For example, suppose Angel, a male job applicant, completes an submits a job application. The employer, on reading the application sees the name and, concluding Angel is female because he has a female relative called Angel rejects the application as he does not want to recruit a woman to the role even though the application was better than those to whom the employer invited to interview.    In such a circumstance it is clear that Angel has been treated less favourably because the employer thought Angel was a woman, even though he was not. Because of this Angel would be able to bring a sex discrimination case against the employer because of their perception of Angel’s sex. Another example could be a worker subjected to homophobic abuse because co-worker’s thought he was gay or even, as in a recent case, because the employer thought the worker was disabled.

The key issue is whether the alleged discriminator perceives a person to be of a particular protected characteristic (evidence of this can of course be difficult to obtain) then if they are treated negatively because of this perceived characteristic then there may be  direct discrimination claim.

Disability · Disability Discrimination

Discrimination Arising from Disability and Unfavourable Treatment

The Supreme Court has recently issued its judgement in Williams v The Trustees of Swansea University Pension and Assurance Scheme, a case that brings to a close a long running employment dispute on the scope of the protection against discrimination arising from disability in section 15 of the Equality Act 2010. Specifically, the case centred on the question of what amounts to unfavourable treatment. For employees the decision is not a helpful one but being a decision of the Supreme Court and there being no indication of any ECJ reference it is an important one for employee representatives to be aware of.

Section 15 of the Equality Act 2010 sets out that it is unlawful to treat a person unfavourably for something arising from disability if that reason is not a proportionate means of achieving a legitimate aim.

The case is a relatively simple one but to understand what this case means a review of the factual background will be helpful.  Mr Williams was employed from 2000 until July 20913 when he was retired on ill-health grounds. He was 38 years old when he retired. His pension scheme provided that in the case of ill-health retirement there would be no actuarial reduction in his benefit, this essentially meant that his pension would  be calculated on the basis of what it would have been had he continued working until pensionable age. Part of this calculation considered the employee’s final salary at the time of retirement.

Before Mr Williams retired in order to try to manage his attendance at work with his disability Mr Williams was a part time worker. This meant that when calculating his pension entitlement the pension provider used the part time salary as the final salary. The core of the case was that the claimant alleged that the reason his working hours were lower, and therefore why he had a lower final salary was because of disability. Therefore, the decision of the pension provider to issue a lower pension was, according to the claimant, unfavourable treatment.

The respondent, by contrast, alleged that there was no unfavourable treatment at all and the facts show that the award of a pension was a positive a decision advantageous to the claimant.

On the question of unfavourable treatment the Supreme Court endorsed the decision of both the Employment Appeal Tribunal and Court of Appeal that the award of a pension was not advantageous.

In his final paragraph Lord Carnworth observes that:

The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. As Mr Bryant says, had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was “immensely favourable” (in Langstaff J’s words). It is enough that it was not in any sense “unfavourable”, nor (applying the approach of the Code) could it reasonably have been so regarded.

There is of course a logic to that but I am afraid I am not persuaded. The suggestion that there is an “artificial” relationship between the decision to award a pension for ill-health and the method by which the amount of the pension is calculated seems to me to be divorced from the reality of what happens in such cases.

There are two comments in particular that I think are appropriate. The submission of the respondent that the pension would not have occurred bit for the disability seems questionable. There is no reason that a person working full time would not be medically retired, perhaps because their ill-health causes significant absences or performance concerns.

This observation leads to a second and more important observation. Frequently an employee who would likely be eligible for ill-health retirement will not want to be retired, they want to be useful and, as a means of doing that, will explore reduced working hours as a means of maximising the chance of working as long as possible. Is it right that an employee taking a decision such as this should do so in the knowledge that this becomes a gamble, and that if the adjustment (reduced hours) does not succeed they will be effectively penalised for this in reduced pension awards. Allied to this a more worrying risk is that some employer will actively ‘encourage’ employees who are disabled to reduce their working hours (under the guise of this being a reasonable adjustment) in the knowledge that the most likely outcome will be a reduced longer term pension liability to their disabled employees and the employees being in a much worse position than they would have been but for the employer’s reasonable adjustment.

 

Cases referenced:

Williams v The Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65.

Unfair Dismissal

Delayed Appeal

ufHMCTS have recently published the decision of the first tier tribunal in Ward v Marks and Spencer PLC in which the claimant alleged she had been unfairly dismissed. The decision is not particularly remarkable and, based on the facts summarised, the finding that the claimant was not unfairly dismissed seems reasonable at least in so far as the decision making up to and including the dismissal itself is concerned.

There is one issue however where I am somewhat sympathetic to her complaint. The claimant was dismissed for gross misconduct and was given five days to appeal the dismissal after receiving the letter. At the disciplinary meeting the claimant signed notes of the meeting and was informed that a typed copy of these minutes would be sent to her.

Around three weeks later the claimant tried to  appeal which was comfortably outside the 5 days allowed to appeal. The employer refused to consider the appeal. At the tribunal the claimant explained that the reason for the delay was she had not been sent the minutes of the disciplinary meeting that she had been promised and was waiting for these before the appeal was made. When she did make the appeal out of time the claimant explained that the reason was that she was waiting for the minutes but despite this explanation the employer refused to even consider the appeal.

In the context of unfair dismissal complaints it is not just the actual decision to dismiss that is considered but the whole dismissal process, including appeal and the employer must act reasonably at every stage. The interesting question in this case is was the refusal to entertain the appeal reasonable?

In the judgement there is a somewhat cursory reference to the ACAS Code of Practice on Disciplinary and Grievance Procedures but it is worth revisiting what the Code says on these issues. In respect of appeal the ACAS Code provides that:

Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.

One thing that is noticeable is that there is no actual time limit for an appeal to be lodged but the judge is surely right that it is reasonable to impose some limit. However, this is not just a case of a late appeal for no reason. The (non-statutory) ACAS Guide which expands on the Code explains that a reasonable disciplinary process will provide “copies of meeting records … to the employee including copies of any formal minutes that may have been taken.” The relevance of this is that an employee’s ability to effectively challenge a dismissal or that matter even obtain advice on the viability of a challenge will be severely constrained if she is unable to see all the evidence upon which the decision maker based their decision as well as the breach providing a mechanism for the unscrupulous employer to exclude information from an employee to constrain their ability to challenge adverse decisions.

In Ward the fact that the claimant had not explained the problem to the employer was held against her; I struggle to see how that is really an effective criticism since, as the judge found as a matter of fact, the employer had promised these minutes would be provided to the claimant.  Upon rejecting to consider the appeal the employer would therefore know that they had not kept a promise to provide information to the claimant and so refusing to consider an appeal despite knowing that that promise had been breached does seem to me to be unreasonable.

The practical lesson from this case of course is that if an employee is constrained from exercising a right of appeal then the fact that the employee wishes to appeal but is constrained from doing so because of employer failures should be communicated to employers within the time limits or, alternatively seek mutual agreement for an extension of the time limit from the employer before this becomes relevant.

 

Trade Unions

All Change at RCN?

rcnIn August the General Secretary of the Royal College of Nursing (RCN), Janet Davies, resigned from her post in the wake of anger at alleged misinformation provided by the union to members to induce them to agree a multi-year pay deal.

There is anger across the health sector unions over allegations of misrepresentation but the situation for RCN is particularly dire after the union admitted that it wrongly informed members that they would all receive a 3% pay rise in the first year, when in fact only proportion of nurses would. It was in the wake of that admission of error that Janet Davies resigned.

Any hopes of the executive council that that resignation would assuage member anger and put a lid on the issue were destroyed yesterday however. In an unusual move the union were forced under membership pressure to convene an Emergency General Meeting and vote on a motion of no confidence that read:

“We have no confidence in the current leadership of the Royal College of Nursing, and call on Council to stand down”.

The motion was overwhelmingly carried with just under 79% supporting the motion. Danielle Tiplady, a nurse and the speaker for the motion, has said that this is a opportunity for a renewal of the union.

But will the Council actually resign? The Chair’s response to the vote is opaque at best: “Today’s honest and open debate in Birmingham has cleared the air and the college will emerge stronger as a result.” And the official response on the RCN website does not assist either as members are told simply that “Council members and the College are now considering the next steps to be taken as RCN Council enters a period of transition.”

There is no statement that there will be resignations in an orderly time just that they are considering “next steps”. Could one of those next steps be to refuse to stand down as required by the motion (albeit with no timescale specified in the motion)? It is certainly not heard, as my union will itself attest, for a vote of members to be ruled invalid if the result does not suit. I would be surprised if they would go for this option but it is not conceivable, more likely perhaps is a fresh round of Council elections with the hope that a majority will still retain their seats.

The next month or so will be interesting to see what change really takes place in RCN HQ.

Trade Unions

UVW Members in Trade Union Victimisation Victory

topshopThe UVW union (United Voices of the World} have this week announced that a case which its Petros Elia, a member of the union’s Executive Committee, has described as  the “most significant tribunal case in UVW’s history” has concluded.

The employment tribunal heard evidence, after a ten day hearing, that Susana was dismissed because of trade union activities in helping to organise for UVW and campaign for  London Living Wage. Carolina was also found to have been dismissed for union activities but, interestingly, the employer did not even pretend to deny his having conceded liability on the first day of the hearing (I wonder if the union will be seeking costs from the employer?)

The employer, Britannia Services Group, provided cleaning services for Topshop and one of the cleaners had been cleaning the flagship store for seven years when she was dismissed. Her offence? Taking part in a union demonstration calling for Topshop to ensure all those working for them, directly and indirectly, be paid the London Living Wage and carrying a placard which read “Topshop shame on you.”. Evidence showed that her dismissal was made under pressure  from Topshop management. Topshop’s actions followed national coverage of the dispute and the Topshop’s withdrawal of a policy document that they supported a living wage after the ill-treatment of outsourced workers was highlighted.

Judging from UVW’S published information it is not clear that there has been a remedy hearing and the outcome has not been finalised. In fact, is although the Respondent is said to have admitted the reason for the dismissal was to inhibit trade union organising and for trade union reasons it is not clear that there has yet been a formal decision on liability. In terms of remedy, the best that can be hoped for is a reinstatement order or aggravated damages, personally I don’t think that is not adequate enough and where there is wilful action to impede the exercise by staff of their human right to organise (as seems to be the case here by both Topshop and Britannia Services Group, there should be a penal element to any judgements.

Nonetheless, this is a brilliant outcome by UVW, a small union who have consistently punched well above their weight for a number of years now.  Hopefully, if nothing else, when the judgements are published (assuming they are) this will be picked up by the media and a light will be shone on the corrupt practices of those managers who were content to allow workers to continue to suffer under intolerable pay systems but dismissed them when they sought to unionise and better their lot.