Two recent English decisions highlight the particular challenges when managing legal professional privilege in the context of resolving employee issues. We consider these decisions and how the principles may apply in Hong Kong in relation to dominant purpose, waiver and iniquity and the lessons that they provide to employers in the context of employee investigations and disciplinary actions. Continue reading
The Court of Appeal has ruled that suspension pending a disciplinary investigation does not breach an employer’s implied duty of trust and confidence, provided the employer has ‘reasonable and proper cause’. An employer does not need to establish that it is ‘necessary’ to suspend and it will not be determinative whether the act of suspension has been described as a neutral act (indeed the Court considered it was neither helpful nor relevant to consider the question of whether or not suspension can be described as a neutral act). Whether there is reasonable and proper cause will be highly-fact specific; it may be easier to establish this where the employee works with young or vulnerable individuals and there is a serious allegation supported by witness evidence to investigate (as in this case). The wider context beyond the fact and manner of suspension, including the events preceding the suspension and the extent to which a suspension is a ‘knee-jerk’ reaction, will be relevant. (London Borough of Lambeth v Agoreyo)
The case highlights the importance of considering whether there is sufficient justification for suspension; relevant factors will include the seriousness of the alleged misconduct and whether the investigation might be prejudiced (eg by interference with witnesses or destruction of documents) if the employee remains at work. An employer should also consider whether other options, such as working from home, would be feasible and appropriate, and document this consideration. Suspension should be for as short a period as possible, the decision to suspend should be reviewed regularly, and suspension should be paid unless there is an express contractual right to suspend without pay. Although not determinative of whether suspension is justified on the facts, it is also prudent to make clear to the employee that suspension is ‘neutral’ and not considered a disciplinary action. Care should also be taken when communicating with staff and clients about the reason for the employee’s absence, including to ensure this does not betray any assumption of guilt prior to conclusion of the disciplinary process.
On 15 December 2018, Decree No. 148/2018/ND-CP (“Decree No. 148”) came into effect. Decree No. 148 introduced amendments to Decree No. 05/2015/ND-CP, the legislation designed to provide guidance on the implementation of the Labor Code. The key changes are explained below. Continue reading
In many industries, it is a requirement that certain individuals performing regulated activities are, and remain, fit and proper. For example, these requirements will apply to certain individuals who are subject to the oversight of financial services regulators such as the Hong Kong Monetary Authority, the Securities and Futures Commission (SFC) or the Insurance Authority. Assessing whether an individual is fit and proper however, is not always straightforward. Issues which, on their face, may not seem to be compliance risks could in fact be so when viewed through the lens of the fit and proper test.
Under PRC law, an employment contract can be terminated in three main ways, namely resignation by the employee, unilateral termination by the employer, or mutual separation. While resignation by the employee is generally straightforward, while other paths to termination must be manged carefully to mitigate risk. We recap the key points to consider with each approach to termination.
Thai labour law provides that in the event that an employee violates an employer’s work rules, regulations or orders in circumstances where the employer has previously issued a warning letter to the employee in respect of the same violation, the employer may terminate the employee’s employment without severance pay. However, the Courts have on occasion awarded an employee severance pay where a warning letter issued was found not be valid. Some key considerations for employers when issuing a warning letter to the employee are discussed below.
In NHS 24 v Pillar, the EAT has ruled that an over-thorough investigation will not of itself render a dismissal unfair. It is for the decision-maker to decide what is relevant to their decision, and it is their state of mind that will determine whether dismissal was within the range of reasonable responses. The reasonableness of an investigation is relevant only where it results in the absence of relevant information being given to the decision-maker. Continue reading
A recent High Court ruling serves as a reminder to employers not automatically to suspend an employee accused of misconduct while an investigation takes place. Employers should first seek the employee’s response to the allegations and consider whether suspension is actually necessary in order to carry out a fair investigation (or for other legitimate reasons) or whether there may be other options such as a temporary reassignment. It may also be relevant whether the contract of employment or handbook policies give an express right to suspend and set out when suspension may be appropriate.
Employers will welcome a tribunal decision that damages for failure to allow a chosen companion at a disciplinary hearing should be nominal where the companion was within the permitted statutory categories but unsuitable for other reasons.
The Full Federal Court has handed down a decision on an employer’s right to direct attendance at a medical appointment, and whether an employer can validly dismiss an employee for failing to follow such a direction. The Full Court’s decision is positive for employers covered by the Coal Mining Safety and Health Act 1999 (Qld), but may also be relevant for employees in non-coal mining industries.
The full decision is here, and we set out below a brief summary of the key points.