Case Law round-up – March 2014

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Whistleblowing – chain of email correspondence capable of being a protected disclosure Norbrook Laboratories (GB) Ltd v Shaw [UKEAT/0150/13]
It is unlawful to subject a worker to a detriment or dismiss them for making a protected disclosure (whistleblowing). Disclosure of information showing that the health or safety of an individual is at risk can qualify as a protected disclosure. In this case, the EAT had to decide whether a chain of email correspondence could amount to a protected disclosure when read together (when, taken on their own, each email did not amount to a protected disclosure).

C was a sales manager responsible for a number of sales people who were required to drive out to customers. During the inclement winter of 2010, C raised concerns about the safety of his sales team when they were driving in the snowy conditions. His first email was to the health and safety manager asking for advice and whether a risk assessment had been carried out regarding driving in the snow. The second email was to the same health and safety manager asking for formal guidance and stating his concerns about the dangers of driving in the snow. The third email was to HR (attaching the previous two emails) setting out his concerns and pointing out his duty with regards to the health and safety of his team.

The EAT found that the emails taken together could amount to a protected disclosure even though, taken separately, they would not have been.

Walker Morris comment

It is not uncommon for employees to raise concerns about health and safety at work and this case highlights the importance of taking such concerns seriously. The three emails taken separately would not have amounted to protected disclosures but taken together (as they were all ultimately sent to the same HR manager) they were. Managers should be trained to look out for situations such as this and seek advice from HR if they feel alarm bells ringing in relation to any concerns raised. This is especially so given that an employee does not need any qualifying service to bring a claim of unfair dismissal for whistleblowing and the statutory compensation cap also does not apply to such claims.

Dismissal of school caretaker for historical unproven abuse allegations was unfair Z v A [UKEAT/0203/13; UKEAT/0380/13]
The EAT found that a school’s decision to dismiss its caretaker for ‘some other substantial reason’ based on allegations of historical unproven sex abuse was unfair.

A was a school caretaker. The school was informed by the police that an historical allegation of child sex abuse had been made against A. It immediately suspended A whilst police investigations were ongoing. After a year on suspension (during which no charges were brought by the police), A was eventually dismissed on the basis that the allegation eroded trust and confidence and posed a serious risk to the school’s reputation. Prior to the dismissal hearing, the head teacher was made aware by the police that none of the witness statements taken supported the allegation and it appeared that no criminal charges were going to be brought against A. A claimed unfair dismissal and the Employment Tribunal (ET) upheld his claim. The school sought to justify the dismissal on the grounds of some other substantial reason (SOSR) in that even if A were to be “completely exonerated the trust and confidence in him had been eroded and there would always be an element of doubt”.

The ET found that a bare accusation of abuse could not, by itself, amount to some other substantial reason justifying dismissal. It held that the school had been required to strike a balance between the welfare of the school’s children and the interests of A and that it had got that balance wrong.

The EAT agreed with the ET. It said that an employer would not be acting reasonably if it took an uncritical view of information disclosed to it about abuse allegations. It held that employers should carry out their own enquiries or at least consider whether it is possible to do so. It commented that there was no automatic presumption that a dismissal for abuse allegations will inevitably be fair. In addition to the fact that the allegation did not provide a valid SOSR reason, the school had also not followed a fair procedure in relation to the dismissal because A had not been given an opportunity to answer the allegations against him.

Walker Morris comment

The following practical points can be taken from this case:

  • Unsubstantiated allegations of sexual abuse, which are given no additional weight by the police, necessitate an extremely careful balancing act by the employer
  • This case demonstrates that there is no hard and fast rule that dismissals for allegations of sexual abuse will automatically be fair or that they will qualify as an ‘SOSR’ reason
  • These type of cases will always be very dependent on their facts and the ET will want to establish that any decision to dismiss was not simply a ‘knee-jerk’ reaction
  • If you are dealing with a case like this it is important not to rely on unsubstantiated allegations even where these have come from the police. Employers must consider whether they can reasonably make any enquiries to test the allegations themselves
  • The school’s haste to dismiss A and its concern for its reputation arguably meant that it rushed things and failed to follow a fair dismissal procedure. Procedural slip ups such as this can be avoided by taking a methodical approach and this is all the more important in difficult and sensitive cases such as these.

Misconduct dismissal – ‘reasonable band of responses’ test
GM Packaging v Haslem [UKEAT/2014/0259]
To decide whether a dismissal for misconduct is fair, the employment tribunal must look at whether the employer’s decision to dismiss falls within the “reasonable band of responses of a reasonable employer”. If it does, then the tribunal is not allowed to substitute its own view for that of the employer even if it feels that dismissal was harsh and that a final written warning would have been enough.

In the recent EAT case of GM Packaging v Haslem, the employer discovered that a senior manager had engaged in sexual activity with a member of staff on company premises after hours. After an investigation the manager was dismissed for gross misconduct.

The employment tribunal found that the manager’s behaviour, whilst not acceptable, was not gross misconduct and that dismissal was outside the band of reasonable responses. The EAT disagreed and said that the manager’s behaviour on company premises (even when it was after hours) did amount to gross misconduct and that dismissal was within the band of reasonable responses of a reasonable employer. The EAT criticised the ET for making the mistake of substituting its own view as to the penalty it would have imposed for the employer’s view.

Walker Morris comment

During appeals, employees often assert that a dismissal was unfair because it was ‘too harsh’. This case is a helpful reminder that, as long as dismissal is within the range of reasonable responses, it is unlikely to be overturned by a tribunal even it takes the view that a different employer might have given a lesser sanction such as a final written warning. That said, it is important not to forget that a flaw in the process can make a dismissal procedurally unfair (even if the reason for dismissal is fair). In cases where an employer has a really solid reason for dismissal it can be tempting to rush through the dismissal procedure but this can be a false economy if it leads to a claim based on procedural unfairness.

Equality Act 2010 prohibits post-employment victimisation

Rowstock v Jessemey
In our June 2013 employment newsletter we reported on two directly conflicting EAT decisions on whether the Equality Act 2010 provides protection against post-employment victimisation. In the case of Rowstock v Jessemey, the EAT held that the Equality Act does not provide protection for post-employment victimisation and in the case of Onu v Akwiwu it held that it does! Mr Jessemey appealed to the Court of Appeal and the Equality and Human Rights Commission supported him with legal representation because it believed that the EAT’s decision was contrary to European law.

Mr Jessemey had received an unfavourable reference from his ex-employer because he had previously brought a claim of age discrimination against it. The Court of Appeal held that the Equality Act does prohibit post-employment victimisation, thus clearly up the uncertainty on this point.

Walker Morris comment

Post-employment victimisation can take forms other than giving a bad reference, for example, refusing to consider an ex-employee for re-employment if a suitable vacancy arose or colleagues ‘bad-mouthing’ an ex-employee because of a previous discrimination complaint. This case therefore highlights the importance of employers following the principles of their Equal Opportunities policies and statements in relation to ex-employees as well as existing employees. Many employers have a policy of giving factual references only but it is not uncommon for informal approaches to be made directly to previous managers so it may be worth providing some training on how to deal with any such approaches appropriately.

Caste discrimination

Tirkey v Chandok and another ET/3400174/13
The Government intends to amend the Equality Act to specifically outlaw discrimination on the grounds of an individual’s caste during the course of 2015. At present, it is unclear whether or not the Equality Act expressly prohibits this type of discrimination but a recent Employment Tribunal decision has found that it does. The case involved a domestic worker employed by a husband and wife to work in their home. She argued that she was treated badly by the couple because she was of a ‘lower’ caste than them.

Walker Morris comment

Cases of caste discrimination could be an issue in workplaces where there are a number of employees from an ethnic background associated with a caste system. This Employment Tribunal decision (though not binding) suggests that such claims will be examined carefully by Tribunals pending the Equality Act being amended in 2015.