References

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.

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Another salutary tale about references

All companies who hire employees will, at some point, become involved in either giving or receiving references. It can be a bit of a minefield, and a recent case only serves to prove this point.

The recent Employment Appeal Tribunal case of Dr Pnaiser v NHS England and Coventry City Council was real an eye-opener and illustrated why caution should be taken.

What happened?

In short, the claimant, Dr Pnaiser worked for Coventry Primary Care Trust and later her team was moved to Coventry City Council. She spent a couple of years in the role, and had significant periods of absence due to disability-related surgery. As part of the restructure, she opted for redundancy and entered into a settlement agreement which included an ‘agreed reference’. The reference was a few sentences long, made no reference to sickness or absence, and was factual and positive, although very limited.
She later applied for a role at NHS England and supplied references. One referee mentioned the long-term absence and another referee, Mrs Tennant, supplied a standard reference and left a phone number.

Prof. Rashid, who was recruiting for the NHS England role, phoned Ms Tennant and, as a result of the call, withdrew the job offer.

There was some dispute during the Tribunal hearing about what the content of the call had been. It was established that the absences had been mentioned, at least in the context of making it difficult to assess Dr Pnaiser’s performance, and that Ms Tennant did not believe that Dr Pnaiser was suitable for the role.

Dr Pnaiser sued both Coventry City Council and NHS England for disability discrimination.

The Employment Appeal Tribunal decided that both Coventry City Council (through Ms Tennant) and NHS England (through Prof. Rashid) had discriminated against the claimant.

What can we learn from this?

It’s easy to see here where Ms Tennant went wrong. If an employee has left a role in difficult circumstances and a reference has been agreed, it can be dangerous to go beyond that reference. Telephone calls can catch you out, whilst they may seem very informal, they are just as critical as a written reference and can be used in the same way by the new employer.

In terms of being the recipient of a reference, you should be careful if you withdraw a job offer on the basis of any sickness absence in case this relates to a disability.

The importance of HR

Interestingly in this case the HR department of the NHS advised against the withdrawal of the job offer and refused to do it themselves. Having sound HR advice, whether it’s an in-house team or an independent HR advisor, can ensure that you don’t make any of the mistakes we’ve just discussed. For advice on this or any other HR matters, please contact Alison.

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Disciplinary procedures: 10 common breaches of the Acas code of practice

This article is a summary of a piece published in Personnel Today in 2011 and subsequently updated in November 2014. The full article can be seen here.

Employment tribunals will take the “Acas code of practice on disciplinary and grievance procedures” into account when awarding compensation for unfair dismissal. This could increase and award by up to 25% for employers that haven’t followed the code. So where do most employers go wrong?

  1. Not warning the employee of the possible consequences of the disciplinary action. Employees must be given a fair chance to defend allegations properly. Disciplinary action and potential dismissal should not come as a surprise.
  2. Not setting out the nature of the accusations clearly to the employee. The employer should explain the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in what it is accusing the employee of.
  3. Not furnishing the employee with relevant evidence against them. The employee should be provided with all the evidence, typically in the form of witness statements, in advance of the disciplinary hearing, in advance of attending the hearing.
  4. Not operating a system of warnings where appropriate. Whilst some cases may warrant a summary dismissal for a first offence in the majority of minor misconduct cases, a series of warnings before dismissal will be appropriate.
  5. Not allowing the employee to be accompanied at a disciplinary hearing. The Acas code reminds employers of the requirement to allow the employee to be accompanied at a disciplinary hearing. This applies when a worker who is invited by his or her employer to attend a disciplinary or grievance hearing makes a reasonable request for a companion to attend the hearing.
  6. Relying on evidence from one particular source with no corroborative evidence. There may be limited circumstances where one individual’s evidence is enough to lead to a disciplinary sanction, but an employer should always look for more.
  7. The absence of an adequate appeal stage. Employers should give the employee the opportunity to appeal when the outcome of the disciplinary hearing is communicated to them. Appeals should be unbiased and not be a “foregone conclusion”.
  8. Failure to keep clear records of the whole disciplinary process. To stand the best chance of successfully defending employment tribunal claims, employers must keep clear records of each stage of the disciplinary process.
  9. Delays in dealing with disciplinary issues. Most cases should be dealt with in a matter of weeks and unexplained delays in the disciplinary proceedings will always be frowned upon by tribunals.
  10. Having the same person deal with the whole disciplinary process. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage.

For more advice and support through disciplinary matters, please contact Alison.

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When does giving a detailed reference become a breach of data protection?

Supplying a reference for an employee is a common aspect of being an employer but in light of a new High Court case, could this now be classed as a breach of data protection laws? Many businesses have a policy of only providing brief references for their employees to avoid any sort backlash, as seen recently in a case between a police officer and the force he was serving with.

The officer in question was facing allegations of gross misconduct and had applied for another job with a regulatory body, requiring a reference. The force supplied a brief, factual reference for him stating his employment dates, job title and place of work and the officer was offered the job. However, the Chief Constable of the police force decided that he was obligated to send an enhanced reference to the regulatory body, informing them of the police officer’s sickness absence and disciplinary record, including the misconduct charges he was facing.

The police officer was given notice of the Chief Constable’s intentions and issued claims against the force, claiming that it would be unlawful to provide a second, detailed reference. The High Court ruled that the Chief Constable was under no lawful obligation to send the second more detailed reference as the first reference was not misleading. The recipient of the first reference would assume that the force had a policy of only supplying brief references which also means that they are exempt from any responsibility or duty of care, as the information given in the reference was accurate.

The Chief Constable believed that he was under a public law duty to supply the regulatory body with a full reference because of the nature of the work. However, the court stated that this duty was outweighed by his data protection obligations and that the police officer’s absence record could not lawfully be disclosed as it was classed as sensitive personal data. The court also ruled that it would be unfair of the Chief Constable to disclose information relating to the misconduct allegations, because the police officer had resigned from the force and requested that the disciplinary proceedings were stopped before he learned of the Chief Constables intentions. This tipped the balance significantly in the police officer’s favour as he was unable to reverse his resignation and reinstate the proceedings to refute the allegations made against him.

It was also found unfair of the Chief Constable to send the second reference as he had not consulted with the police officer beforehand, allowing him to represent his case against the reference being given. With regards to the Chief Constable’s public law duty, it was overwritten by the fact that the police officer had a legitimate expectation that only the brief reference would be provided in line with the force’s policy and the assurances given to him. It would be unfair of the force to ignore this expectation even in light of the special circumstances of the case.

This case highlights the importance of exercising caution before departing from a policy of only providing a brief, factual reference for employees. It is also interesting to note that in line with this decision, an employer providing a brief reference cannot be found to have given a misleading representation of an employee to the new employer by failing to disclose details of disciplinary or attendance records. Employers should seek permission from the employee before disclosing this sensitive information in line with fairness and data protection laws.

enlightenHR always advises clients that giving a reference which merely confirms dates of employment, job title and place of work should be standard practice as this saves the business from any potential pitfalls – it is reassuring to see this advice upheld as sufficient by the High Court.

If you are not already a client and would like to this further, please call Alison at enlightenHR on 01803 668518 or email alison@enlightenhr.com

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