The Government intends to make the following changes to statutory rates and tribunal compensation from April 2020:
- From 6 April 2020 the cap on the unfair dismissal compensatory award will increase from £86,444 to £88,519 and the cap on weekly pay (used to calculate the unfair dismissal basic award and statutory redundancy pay) will increase from £525 to £538. This will give a maximum unfair dismissal award of £104,659 (subject to the additional cap on the compensatory award of 12 months’ pay).
- The weekly rate of statutory sick pay will increase from £94.25 to £95.85 and the weekly flat rate of statutory maternity, paternity, adoption and shared parental pay will increase from £148.68 to £151.20.
- The national minimum wage rates will increase from 1 April 2020. Workers of 25 years and older will be entitled to be paid a minimum national living wage of £8.72 per hour (increased from £8.21), the rate for workers aged 21-24 will be £8.20 per hour and the rate for those aged 18-20 will be £6.45 per hour.
Employers should take steps to ensure that personnel who investigate potential misconduct are aware of the need to provide accurate information to the decision-maker (and the employee) and, importantly, to update this information if necessary prior to the disciplinary decision.
In Uddin v London Borough of Ealing, the investigating officer had included in his recommendation in favour of disciplinary action the fact that a police complaint had been made about the employee’s conduct, but had then failed to notify the decision-maker when the complaint was withdrawn prior to the disciplinary hearing. The decision-maker gave evidence that she took account of the police complaint when making her decision and, had she known it was withdrawn, would have wanted to understand why. The EAT confirmed that a failure to share a material factor with the decision-maker could be relevant to ordinary fairness and rendered the dismissal in this case unfair.
The EAT has emphasised that it would not be fair for an employer to dismiss an employee for reputational reasons just because the employee has been charged with a criminal offence for conduct outside work. There would need to be some relationship between the matters alleged and the potential for damage to reputation. It would also need to be reasonable to reject alternatives such as suspension on full pay pending resolution of the criminal case; in determining reasonableness, the size of the employer and whether a trial date has been set would be relevant.
In Lafferty v Nuffield Health, the employer’s dismissal of an employee charged with assault with intent to rape (unconnected with work) was held to be fair, despite the employee’s 20 years’ unblemished service. However, it was relevant that his role as hospital theatre porter transporting anaesthetised patients could have given him an opportunity to commit a similar act to that charged, and that the employer was in the charitable sector which was under particular scrutiny at the time following exposure of sexual offences at other organisations. It was therefore reasonable for the employer to genuinely believe there was a significant reputational risk if the employee were convicted, given that having allowed the employee to work between charge and conviction would mean that additional patients would arguably have been exposed to risk. Suspension on full pay was not reasonable given the employer’s charitable status and the lack of a trial date. However, the EAT did query whether a large employer would genuinely be ‘financially troubled’ by suspending on full pay, meaning that dismissal by such employers might well not be fair.
In contrast, the tribunal in Bosher v EUI Limited ruled that it was unfair to dismiss an insurance claims validation co-ordinator because of risk of reputational damage, on his being charged with possessing indecent images involving children. The tribunal made clear that a fear of reputational harm “cannot be presumed on the basis of a presumed extreme or scaremongering reaction in the press or public”. The tribunal considered that the public should be credited with understanding that a prosecution is not the same as being found guilty, and that there was a difference between criminal activity and the viewing of legal pornography which might be viewed as “unsavoury or inappropriate” but was not criminal. At the time of dismissal it was not yet clear whether there would be a public hearing, and the employer should have considered alternatives to dismissal such as redeployment, reducing responsibilities, or suspension pending developments in the criminal proceedings.
The general rule is that employment disputes should be resolved in the jurisdiction where they arise, but an unfair dismissal claim may be brought in the UK if the claim has a sufficiently strong connection with the UK.
The Employment Appeal Tribunal has confirmed that the existence of an exclusive English jurisdiction clause in an employment contract was a relevant factor in determining whether the UK had jurisdiction to hear a whistleblowing unfair dismissal claim (as it creates an expectation that the employer will honour the term and that expectation is a connection with UK and UK law), provided there were other connections independently connecting the claim to the UK and the employer is either based in the UK or part of a multinational group with a UK-headquartered parent. (Hexagon Sociedad Anonima v Hepburn)
The Court of Appeal has confirmed that a dismissal will not be unfair simply because a decision to start disciplinary action is made before the investigation is complete. The Court stated that it may be necessary to suspend an employee as soon as investigations have discovered serious matters which are likely to be the subject of disciplinary action, even though the full investigation has not been completed. Continuing the investigation does not render the process unreasonable provided that the employee is given a full and fair opportunity (which could be at the disciplinary hearing) to engage with any new charges or new material which might emerge as a consequence.
Equally, the lack of formal hearing for the employee at the early investigatory stage did not render the process unfair on the facts, given that there were no significant disputed facts. (Sattar v Citibank NA)
Employers wishing to ensure employees keep salary information confidential should ensure that it is included expressly within a contractual confidentiality obligation. Disciplinary policies should also make clear that external (or internal, if appropriate) disclosure without the employer’s permission is misconduct.
The EAT in Jagex Ltd v McCambridge confirmed that a duty to keep pay information confidential will not necessarily be implied. It was unfair to dismiss an employee for discussing an executive’s salary with colleagues after finding the information on a communal printer. Given that the terms of a contractual confidentiality clause did not cover salary details, his actions did not amount to gross misconduct.
Employers choosing to impose a pay secrecy term should bear in mind that this will be unenforceable in relation to pay disclosures made for the purpose of finding out whether there is unlawful pay discrimination.
A recent Supreme Court decision highlights the importance of a thorough investigation of the purported grounds for dismissing an employee, particularly if there could be reasons why a line manager might have engineered the grounds. The Court ruled in Royal Mail Group v Jhuti that, if a person in the hierarchy of responsibility above an employee determines that the employee should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.
In this case the real reason for dismissal was a protected disclosure which had been hidden from the decision-maker by the employee’s line manager, who had fabricated performance concerns out of a desire for retribution. The employer was liable for an automatically unfair dismissal for whistleblowing, even though the decision-maker relied in good faith upon the invented reason of poor performance.
The principle in this decision will apply to all types of unfair dismissal claim, not just for whistleblowing. Decision-makers will need to be live to the possibility that the ostensible reason for disciplinary action presented to them may have been manufactured by a line manager to hide another reason. The case highlights the importance of interviewing the employee and following up on any suggestions of a hidden motive on the part of any line managers involved in instigating the disciplinary process or providing evidence. In this case the decision-maker was appointed to ‘review’ the evidence rather than investigate matters for herself. She had failed to interview the claimant (as she was unwell) and had relied on the line manager’s assurances that the claimant had accepted that her original whistleblowing disclosures were based on a misunderstanding (when in fact she had been put under intense pressure to say she accepted this). It would also be prudent for HR to consider whether relevant background, such as earlier whistleblowing disclosures or grievances or other potential reasons for personal animosity on the part of a relevant manager, should be brought to the decision-maker’s attention to take into account.
Manipulation carried out by an employee at the same level or lower than the claimant will not impact on what is deemed to be the reason for dismissal. However, employers should also bear in mind that the motivation of someone who is not the decision-maker but who is involved in investigating the disciplinary charge may be attributed to the employer. Further, even if a manipulator’s actions are not attributed to the employer in determining the reason for dismissal, the dismissed employee may have a detriment claim against the manipulator, for which the employer is likely to be vicariously liable.
The Grand Chamber of the European Court of Human Rights has ruled that the dismissal of employees based on evidence of workplace theft obtained through covert CCTV was justified and did not involve a breach of the employees’ right to privacy under Article 8 of the European Convention on Human Rights. (López Ribalda v Spain)
The Grand Chamber overturned a previous chamber decision and held that the Spanish courts were entitled to uphold the dismissals as fair, notwithstanding the employer’s failure to notify employees in advance of the existence of the cameras (a requirement of Spanish data protection law). The data protection breach was just one factor to be taken into account in determining whether the use of covert surveillance was proportionate. This was outweighed by other factors, namely that the surveillance took place in an area open to the public (the shop floor) where there would be a limited expectation of privacy, it only lasted for ten days (even though the employer had not set a maximum duration), only the supermarket manager, the company’s lawyer and the union representative viewed the footage before disciplinary action was taken, and warning staff about the cameras might well have defeated the purpose. The employer had a reasonable suspicion of serious misconduct by several employees based on significant losses over several months and had a legitimate interest in discovering the culprits, and the limited surveillance used was the only means of achieving this. In these circumstances, the Spanish courts had acted within their margin of discretion in holding the intrusion to be proportionate and the dismissals to be fair.
The ruling accords with the UK Information Commissioner’s Office guidance, which states that covert monitoring will only be justified in exceptional circumstances, for example, as part of a specific investigation into suspected criminal activity, where openness would be likely to prejudice the prevention or detection of crime or equivalent malpractice, or the apprehension or prosecution of offenders. Its use should also be signed off by senior management.
The Employment Appeal Tribunal has ruled that covert recording by an employee will not always be a breach of the implied duty of trust and confidence. It will normally amount to misconduct, but will not automatically be gross misconduct justifying dismissal. Relevant factors will include the purpose of the recording, which “may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”. It might also be that an employee wishes to conceal a disability which makes it difficult for them to accurately recall conversations. Whether the employee has contravened an express instruction not to record or lied about doing so will also be relevant, as will the subject-matter of the recording. If highly confidential information or personal information relating to another employee is discussed, this is more likely to involve a breach than where the discussion relates to matters concerning the employee of which a note would normally be kept and shared. Finally, “any evidence of the attitude of the employer to such conduct” will be relevant, including whether and how the issue is addressed in any disciplinary policy.
The EAT also commented that it is good practice to discuss at the start of a meeting whether it would be desirable to record it, noting that sometimes recording will inhibit a frank exchange of views and that, for long meetings, a summary or note will be of more value.
Employers may wish to review their approach to this issue and ensure that disciplinary policies make clear whether recording carried out covertly or without express written consent amounts to gross misconduct. It would also be prudent to ensure managers state at the beginning of any investigatory, disciplinary or grievance hearing if recording is not permitted and ask the employee to confirm they are not doing so; where a meeting is adjourned for the panel’s private deliberations to continue, managers should check that the employee has not left any possessions in the room. (Phoenix House Ltd v Stockman)
The European Court of Human Rights in Garamukanwa v United Kingdom has confirmed that the right to privacy can theoretically apply in relation to communications sent from a workplace email address, or which touch on both professional and private matters. However, in this case, the employee did not have a reasonable expectation of privacy in private communications sent to a work colleague, which had been discovered as part of a police investigation into allegations of harassment and passed to the employer for use in disciplinary proceedings. At the time of the communications, the employer had already informed the claimant of his colleague’s complaint and that his conduct was unacceptable, and therefore he could not have reasonably expected that his subsequent communications linked to the allegations would remain private. The employer was entitled to rely on these communications to justify dismissal for gross misconduct. The case highlights the importance of putting employees on notice of this type of allegation at an early stage.
More recently, the Outer House of the Court of Session has decided that, although ordinary members of the public may have a reasonable expectation of privacy when sending messages to a WhatsApp group, the position was different for police officers subject to professional standards applicable both on and off duty. In this case police officers sent offensive messages to a WhatsApp group of other officers, all of whom were under a positive obligation to report this type of message, in itself increasing the likelihood of disclosure. Given that officers are expressly required at all times to abstain from any activity likely to interfere with the impartial discharge of duties or giving that impression to the public, their expectation of privacy was limited. The employer was therefore entitled to use the messages (discovered during the course of a separate criminal investigation) as the basis for misconduct proceedings. The ruling suggests that individuals working in regulated industries or professions, where a higher standard of personal conduct is required, may not be entitled to an expectation of privacy in relation to messages sent to a WhatsApp group. (BC v Chief Constable Police Service of Scotland)