misconduct

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.

Please follow and like us:

Watch your mouth – how employers can be discriminatory without realising it

Discrimination can come in many forms, but can be much subtler than you realise. When it comes to off-the-cuff comments, employers need to be careful of how things come across to other parties. This was the case with a recent claim made by a 59-year-old employee who was told she’d be more suited to a ‘traditional’ office. So where did the employer go wrong?

The background 

In February 2015 Ms Gomes (G) began working as an administration assistant for Henworth, which traded as Winkworth Estate Agents. G had been working for another agent in the Winkworth franchise since 2009, and had been transferred to Henworth from there.

A year later, in February 2016, G had a performance review with the company’s lettings director, who informed her that she needed to be more careful with her work. The meeting upset G, and she subsequently spoke to her line manager who spoke to Graham Gold, one of the directors.

Shortly after this G met with Gold, who told her that he felt she had not been paying attention to new methods of working, and had become preoccupied with an old piece of software that was now rarely used by the company.

A month later, in March 2016, Gold called G in for another meeting and told her: “This marriage isn’t working.” G claimed that, when asked about this comment, Gold said that G had typed and sent an erroneous letter to a solicitor, including referring to the deceased in question as ‘Mrs’ rather than ‘Mr’. Gold stated that, subsequent to this, a note would be placed on her performance record.

Additionally, Gold then told G she would be “better suited to a traditional estate agency” which G interpreted as Gold alluding to her being too old for that particular office. When G asked Gold what he meant by his comment, he suggested she “sleep on it and decide what you want to do,” which G interpreted as Gold recommending she consider leaving the company. According to G, at the time of the meeting she was planning to stay with the business until retiring at 65.

Not long after the meeting, G took sick leave for work-related stress and filed a grievance against Gold. The outcome of this grievance concluded that G should have more training opportunities, as well as stating that the original meeting with Gold had been carried out in an unsatisfactory manner. Gomes was not pleased with this outcome, however, and not only appealed but also tendered her resignation.

The tribunal allowed G’s claim for age discrimination, stating that the original comment ‘better suited to a traditional estate agency’ was unlikely to have been said to a younger employee, and was therefore a direct reference to her age. As well as this, the tribunal also allowed G’s claims for age-related harassment and constructive unfair dismissal.

The person put in charge of handling G’s grievance was also called into question, as they had compromised the meeting’s impartiality by allowing Gold to be present – despite Gold being the subject of the complaint.

In conclusion

This case is a harsh reminder that employers need to be careful with what they say to, or about, their employees. An age discrimination claim can arise from comments that allude to an employee’s age, even if it is not directly referred to – so think before you speak.

If you would like to discuss this within your organisation, please contact Alison.

Please follow and like us:

Tribunal awards – calculating a week’s pay

In a recent case the Employment Appeals Tribunal ruled that a week’s pay should include employer pension contributions, rather than just basic pay, for calculation of compensation for claims under the Employment Rights Act 1996.

Let’s take a look at the facts.

Ms Drossou (D), who worked for the University of Sunderland, was dismissed on the grounds of an irretrievable breakdown in working relations, of which the University claimed D to be the main cause. Subsequently, D brought a claim of unfair dismissal that was eventually upheld by the Tribunal.

As a result, the EAT ordered compensation from the University, calculating a week’s pay by including the employer pension contributions. On the normal grounds that payments are not paid to the employee but into the pension fund, this decision went against the longstanding practice of excluding employer pension contributions from the calculations of a week’s pay.

The Tribunal felt that this deviation from standard practice was necessary, and said that the law under the Employment Rights Act 1996 (‘the ERA’) does not state that the amount payable by the employer has to be payable to the employee (i.e. it could be payable to a third party such as a pension provider). Additionally, the EAT stated that “remuneration” in the context of the ERA means a reward in return for services, and employer pension contributions are no less a reward for service than basic pay. The University was not satisfied with the ruling, but when it appealed to the EAT the Tribunal’s decision was upheld.

So, what does this mean for employers?

For the time being (at least until we see whether this decision is appealed) employers need to increase their calculations in accordance with the potential value of claims. Employers facing unfair dismissal claims need to be careful. If the claimant’s base salary is below £80,541 – the current statutory cap for unfair dismissal compensation – the calculation of a week’s pay becomes highly relevant. Where the employee earns less than the statutory cap on a week’s pay (currently £489), the basic award will also be increased – as well as all other awards based on the ERA definition such as the eight-weeks’ pay for a flexible working rules breach.

But, more importantly, the decision may impact protective awards. If employers fail to inform and consult under TUPE or, in a redundancy process, under the Trade Union and Labour Relations (Consolidation) Act 1992, then they could face large increases in the total compensation payable. The final amount will depend on the number of affected employees, the generosity of the pension provision and the size of protective award made up to the 13-week maximum. But if each employee has a 10% employer pension contribution and they all get an award of 13 weeks, then the total payable increases considerably.

For more information on this please contact Alison.

Please follow and like us:

Accidental oversight – when do employees have a right to a rehearing?

In a circumstance where an employee is required to attend a disciplinary hearing, all evidence that is being used against them must be given to said employee. If some of the evidence is missed out by accident, is it obligatory to hold a rehearing?

What does the ACAS code state?

According to the ACAS Code of Practice on Disciplinary and Grievance Procedures, all employees subject to disciplinary proceedings must receive, in writing, all of the relevant information about their alleged misconduct and all of the possible outcomes of the hearing. Once they have received this they must then be given the opportunity to provide their answers and any defence.

What is meant by relevant information?

Before the disciplinary hearing, employees must be given:

  •             Full details of the specific allegations, not just general observations.
  •             Copies of all documentary evidence and witness statements.

Mistakes happen and sometimes information is withheld by accident. If this occurs, does an employee need a brand new hearing? Does the hearing have to start again from the beginning? According to the Employment Appeal Tribunal’s (EAT) ruling in the Biggin Hill Airport v Derwich case in 2015, a rehearing isn’t obligatory.

EAT Ruling

During the Biggin Hill Airport v Derwich, an employee did not receive all the witness evidence regarding her sacking for gross misconduct. She received these missing witness statements before her internal appeal but claimed unfair dismissal as she believed that the missing evidence was a fundamental flaw in the procedure. However, the EAT claimed that because the evidence had been presented ahead of the internal appeal, the employer had done everything possible to rectify the mistake.

In a nutshell

The EAT ruled that procedural errors can be put right at the internal appeal stage and, in the event of an accidental error; you aren’t obliged to hold a rehearing.

For more information on this or any other HR matter please contact Alison directly.

Please follow and like us:

Get our email updates

* = required field
Follow us on LinkedIn
Follow us on Twitter
+1 on Google+