Bad Behaviour

Honesty is always the best policy when it comes to employee terminations

None of like to have tough conversations with our employees about their poor performance, and we enjoy terminating their contract even less. Whilst it might be hard, the latest decision from the EAT in Rawlinson v Brightside makes clear the importance of telling it how it is, as much for your sake as for the employee. No matter how difficult the conversation might be, it could save you lengthy legal action in the long run.

The background

We’d like it if HR wasn’t complicated, but, unfortunately, the opposite is usually the case. In this situation, there should have been a straightforward non-completion of the probationary period, however Brightside made things a bit trickier. There had been concerns surrounding Mr Rawlinson, the new Group Legal Counsel, and his performance since early in his tenure, although nothing was raised with him. Behind the scenes, however, red flags had been popping up and mistakes had been identified within four months. Subsequently, it was decided that Mr Rawlinson’s employment would be terminated.  Whilst discussions of alternative arrangements for legal advice began, Mr Rawlinson remained none-the-wiser.

A month later, the Company informed Mr Rawlinson that it had reviewed their approach to managing legal services and concluded that the current arrangements were not working. Instead, they would be making greater use of external legal expertise and would no longer require Mr Rawlinson. He was given his contractual three months’ notice, with the Company expecting him to stay on and help with the transition to new arrangements.

But it wasn’t going to be that simple. Instead, Mr Rawlinson felt that if legal services were being outsources then it was a TUPE transfer and, at the very least, he should have been informed of the name of the firm to which the services were being outsourced. After realising that things didn’t quite add up Mr Rawlinson resigned and claimed constructive dismissal. Upon submitting a subject access request, it will come as no surprise that Mr Rawlinson soon came to realise that the real termination was because of his poor performance.

The case

Whilst Mr Rawlinson’s claims regarding non-compliance with TUPE information and consultation obligations were dismissed, as TUPE did not apply, there is a more pressing issue at hand. Mr Rawlinson’s claim for constructive wrongful dismissal was based on breach of the implied contractual duty of mutual trust. In fact, his argument was not that the implied term gave him a right to a fair procedure and to be told the real reason for his dismissal. Instead, he argued that there is an employer’s duty to be honest and not to mislead their employees.

The EAT found that in all but the most unusual cases the implied term means an employer must not deliberately mislead, even if their intensions are honourable. It does not constitute a broader obligation to volunteer information, but where a reason for termination is given, it must be done openly and honestly. The EAT did acknowledge that there may be particular cases in which the operation of the implied term would permit an element of deceit, but this did not apply here.

What this means

The case does not mean that there are more obligations on employers to inform employees either collectively or individually. Instead, the lesson is to not be afraid of being honest about employee performance, even if this is difficult. As more companies move towards a model of continual feedback rather than the traditional annual appraisal process, giving messages about ways to improve performance should be easier and news of under-performance should not come as a surprise. With the implementation of GDPR just a few months away, employers are under increasing pressure to be more transparent with their employees. This case demonstrates that if you choose not to be transparent, it is better to say nothing than to mislead.

If you’re affected by any of these issues, you can get expert advice from Alison here.

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Was the suspension of a teacher a neutral act and, if not, did it amount to a breach of the implied term of mutual trust and confidence?

The High Court case of Agoreyo v London Borough of Lambeth, available here, is clear on this matter.  In August 2017 they set out that suspension is not a neutral act and an improper suspension can amount to a breach of the above implied term. They also said that a breach could amount to a ‘repudiatory breach’, i.e. be sufficient in itself to destroy the employment relationship and entitle the employee to bring a claim.

The background

Mrs Agoreyo (who was the employee) worked as a primary school teacher for the London Borough of Lambeth.  A number of her pupils had significant behavioural issues and she had made numerous requests to the school for additional support.  However, before all the measures could be put in place Mrs Agoreyo was suspended. This followed three incidents where she had to use a degree of force to get two of these pupils to behave. The allegations suggested that the degree of force used went beyond those considered reasonable under the Education and Inspections Act 2006.

The suspension letter said:

  • the employee was suspended on normal pay;
  • suspension was a precautionary act pending a full investigation into allegations, during which the employee would be given full opportunity to provide her account of events; and
  • the suspension was a “neutral action and not a disciplinary action” and was to “allow the investigation to be conducted fairly”.

However, what sets this case apart, was that, before the decision to suspend, the employee was not asked for her comments on the allegations. Similarly, her employer failed to suggest that it had considered other alternatives to suspension.

Mrs Agoreyo resigned and brought a claim against the employer in the County Court for breach of contract. She argued that suspension was not reasonable or necessary.

Whilst the initial County Court hearing felt that London Borough of Lambeth was bound to suspend Mrs Agoreyo, after receiving reports of the allegations against her, and had “reasonable and proper cause” (to protect the children), Mrs Agoreyo appealed to the High Court.

The High Court disagreed. They felt that the employer was not bound to suspend Mrs Agoreyo and did not feel that it was obvious that there were no other alternatives. Furthermore, the employer had clearly stated in its suspension letter that its purpose was not to protect children but to ensure a fair investigation.

The High Court found that:

  • there was no evidence of any attempt to understand the employee’s version of events prior to the decision to suspend;
  • there was no evidence of any consideration of alternatives to suspension; and
  • the letter of suspension did not explain why an investigation could not be conducted fairly without the need for suspension

As a result they concluded that, given the potential stigma associated with suspension and the potential impact on future career prospects, suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher.

The suspension amounted to a breach of the implied duty of trust and confidence.

Employers must remember that even (in cases where the conduct is extremely serious, suspension must never be a knee-jerk reaction and the employer must carefully and pro-actively consider what the true purpose of a suspension would be and whether there might be any alternative.

Our advice is always to contact a qualified professional to help support and guide through disciplinary investigations and matters. You can contact Alison here.

 

 

 

 

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Social Media Misconduct: When tweeting gets you in trouble

We’ve all seen our Facebook and Twitter friends turn to the internet to vent their issues about work and colleagues. But when does it go too far? A recent employment tribunal decision showed that a long-serving employee was fairly dismissed after finding that he had written derogatory comments about both his employer and colleagues on his Twitter profile.

Creighton v Together Housing Association Ltd

Mr Creighton had been working for the housing association for nearly thirty years when, during an investigation into alleged bullying of a colleague, his employer looked at his Twitter profile. Three years previously, Mr Creighton had made a number of derogatory comments about his colleagues and his employer. In response, Mr Creighton was dismissed for gross misconduct over his tweets, although the initial bullying allegations were dismissed.

Mr Creighton argued that he thought his tweets were private, they had been posted three years ago and he ‘deserved to be treated sympathetically’ due to his long-term loyalty to the company. However the disciplinary panel rejected his arguement and dismissed him. After a failed appeal, Mr Creighton then brought an employment tribunal claim for unfair dismissal.

The employment tribunal said that Mr Creighton’s dismissal was for a potentially fair reason related to his conduct and said that his employer was entitled to take action after discovering the tweets. Although the tweets had been posted three years ago, the ET stated that the age of them didn’t matter.

This is not the only example of social media misconduct leading to a fair dismissal. In the case of Teggart v TeleTech UK, a Northern Ireland industrial tribunal said it was fair to dismiss an employee for offensive comments made about a work colleague on Facebook.

In a nutshell

As seen in the cases above, social media misconduct can be sufficient evidence for a fair dismissal of an employee. The employment tribunal has made several decisions in recent claims that relate to an employee’s derogatory comments made online and have ruled that the employer’s dismissal decisions are reasonable and fair.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

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Can too many Tinder tales at work cause trouble?

Love is in the air as Valentine’s Day makes an appearance for another year. Dating and love in the modern world has changed dramatically over the past decade and sometimes it’s hard to keep up with what’s appropriate for the workplace. Hearing about employees online dating experiences might make for funny morning coffee conversations but where should the line be drawn, legally, for discussion of Tinder tales in the workplace.

It’s true that online dating is much more accepted but hearing about it constantly at work could lead to something a bit more sinister.

An interesting article we came across talks about a self-confessed Tinder addict amongst their subscribers.

“Her colleagues are often privy to her sexting exploits (text messaging someone in the hope of having a sexual encounter with them later) and the net results. Most of them find her tales entertaining but our subscriber has noticed that there are one or two employees who are clearly unimpressed, although they’ve never actually objected.”

The question of whether or not there is a problem here can be considered with the Equality Act 2010. It states that an employee can be considered to be unlawfully harassing another if they engage in any unwanted conduct of a sexual nature or create an intimidating or offensive environment.

In this circumstance, if one of the employees is offended by, or could potentially issue a tribunal claim over, what they consider offensive behaviour by the subscriber it could be considered as sexual harassment. It doesn’t matter if the subscriber didn’t mean any harm by the conversations, all that matters is the perception by the other employee.

So too many Tinder tales can cause trouble not just for employees but also the employer. To make sure employers aren’t held responsible they can follow a few steps:

  • Ensure there is a clear work policy that states what is considered inappropriate behaviour at work.
  • Carry out regular training on dignity at work for all employees, making sure to include information about their personal legal obligations.
  • If there are any minor incidents that could be considered offensive, have a quiet meeting with the employee to ensure they are aware that others may think of it as sexual harassment.

Employers can be held responsible for employees that offend others in a sexual nature. It is important to ensure that everyone in the workplace is aware of what can be considered offended by others. Encourage staff to keep their Tinder tales to themselves while in the office and leave Valentine’s Day stories at the door.

For guidance on this or related HR matters, please contact Alison.

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