Monthly Archives: October 2015

Bubble bubble, whistleblowing trouble

As Halloween approaches and small children transform into ghosts and ghouls (the result of a half-term holiday and a trip to the costume aisle of a supermarket) one aspect of employment law also seems to be taking on a different form, or is at least part way to transforming back to its pre-2013 form.

The 2013 requirement for an employee to have a “reasonable belief” that their protected disclosure (whistle blowing) is “in the public interest” appears to have been watered down by the recent EAT case of Underwood v Wincanton Plc. This is important as employees have the benefit of a potential automatic unfair dismissal claim (unlimited compensation and no requirement for 2 years’ service) if they are dismissed for having made a protected disclosure, or a claim for subjection to a detriment if they are otherwise treated less favourably and subjected to a detriment as a result of having ‘whistle blown’ in a way which meets the protected disclosure tests.  The risks for employers are therefore high.

The disclosure in Underwood was a complaint by Mr Underwood and 3 of his colleagues that overtime was not being shared out fairly, in breach of their employment contracts. The Tribunal had dismissed the claim on the grounds that the disclosure did not meet the “public interest” test. However, the EAT overturned that decision.

The EAT decided that, applying the case of Chesterton Global Ltd v Nurmohamed [2015], it was simply necessary for the employee to reasonably believe that a section of the public was concerned with the issue, rather than it only being the concern of one individual. In this case, the 3 other colleagues were sufficient to amount to a section of the public.

Chesterton is being appealed to the Court of Appeal, so things may change again within the next year or so. However, for now, this case is a cautionary tale for employers.  They need to:

  • Be aware that complaints which appear to be personal and individual to employees may not be what they seem and may actually be protected disclosures.
  • Be aware of the protection afforded to employees in relation to protected disclosures and the risk to employers (automatic unfair dismissal claims with unlimited compensation and which can be brought from day 1 of the employment relationship, and subjection to detriment claims).
  • Have the ability to recognise a potential protected disclosure when one is made and to seek advice at the right time in order to minimise risk.

Handled badly (and notwithstanding the “public interest” test) contractual complaints made on behalf of more than one employee are still more than capable of going bump in the night and having very painful and costly consequences for employers.

Claire Collinge
Partner, Workwise Legal LLP

Autumn: season of PIPS and mellow fruitfulness

Autumn is upon us. According to the media, that means the nation has once again been “Strictly-fied” – glued to the television every Saturday night to watch the latest round of celebrities desperate to journey their way from dance novice to winner of the glitter-ball trophy. If you like an improvement story, Strictly is probably for you.

On the other hand, we can foray into the testosterone heavy world of The Apprentice and see people strut their Alfa male/female stuff, desperate for their 15 episodes of fame and perhaps some Sugar investment. Candidates last heard saying “I laugh in the face of failure” are then seen struggling to hold it together in the back of a taxi after being unceremoniously fired from the process.

It got me thinking about different approaches to performance issues, particularly in the first few months of the employment relationship. Once an employee has 2 years’ service, employment law requires dismissals to be based on a fair reason and a fair procedure applied in order to avoid an unfair dismissal claim, but prior to that time employers have a bit more scope to be flexible in their approach (providing their actions don’t amount to unlawful discrimination, which can be pursued from day 1, and providing none of the unfair dismissal exceptions to the 2 year rule apply).

For those first 2 years, the question is whether to require and encourage improvement through the use of a formal or informal performance improvement plan (PIP) or whether to simply give notice and terminate the employment relationship.

Employers may chose the ‘quick rip’ approach to the situation, preferring to terminate the employment relationship whilst the risks of legal action are relatively low, particularly if the chances of a successful working relationship appear slim. However, whilst care must be taken to avoid the risk of claims which can be brought early on in the employment relationship (notice pay, discrimination and a few unfair dismissal claims where the exception to the 2 year rule applies) that approach might also not be in the best interests of the business in every case.

Obvious advantages to an improvement approach would be that hopefully it would save the employer the time and cost of recruiting again, perhaps reinforce their position as a trusted employer to their existing staff and make it easier to justify the reason for a dismissal as being a non-discriminatory reason further down the line, should the desired improvement not be achieved. An improvement approach might also save the employer from losing an employee who might otherwise have developed into a high performing and loyal member of the team.

A PIP approach doesn’t have to be complicated. Put simply, it’s a process of speaking to the employee to raise the performance concerns, of putting realistic targets for improvement in place and then reviewing whether those targets have been made met. Not quite the pre-judges chat before the Strictly dance-off, but the similarities are there.

One thing’s certain, employers should take time to consider and decide which way of dealing with performance issues is the right option for their business in each case, taking care not to discriminate on unlawful grounds. Making the right choice between the use of a PIP approach and early termination in the first 2 years of the employment relationship could prove essential to an employer’s ability to grow the successful team it wants.

Claire Collinge
Partner, Workwise Legal LLP

At the risk of being social…

In the last month social media has once again been exposed for the fickle friend it is. One minute it’s working for you and the next it has de-friended you to support the cause of another. Take the case of the LinkedIn “nice photo” scandal, for example, in which a link up quickly turned into a bit of a public flogging by social (and other) media for both parties.

The double-edged power of social media can be seen to great effect in the employment context. For employers, it can be a powerful force to damage the public image of a business and hinder its success, or it can be used to build a positive public perception of the business as a trusted employer. Does the risk of being exposed by social media carry any weight with employers seeking to cut corners or take action prior to their employee accruing 2 years’ service and the right not to be unfairly dismissed? It might well become a relevant factor in the future, and one that weighs in favour of negotiating confidentiality agreements for departing, disgruntled employees, even those with short service.

On the other hand, whilst social media can be the friend of an employee, it can also be their downfall. It can provide evidence of misconduct through its very presence in the workplace (particularly if the employer has a social media policy setting out the limits on its use during working hours). It can also provide evidence of misconduct to justify disciplinary sanction based on inappropriate posts and comments. These are sometimes in breach of a social media policy or are nevertheless sufficient to damage the employer’s reputation and amount to a breach of the implied term of trust and confidence between employer and employee.

The newspapers last month reported the suspension of police officers who posted photographs considered inappropriate which were taken at the scene of the Shoreham air crash, pending an investigation for gross misconduct, and in the Employment Appeal Tribunal a dismissal was held to be fair, even though it was based on social media activity 2 years earlier (British Waterways Board v Smith (2015)).

A clear social media policy, circulated to all employees, will definitely help employers in regulating their employees’ use of social media and in taking disciplinary action where appropriate.

For employees, it’s a case of being alert to the risks of letting off employment steam through social media. Employers can be friends of friends too and would the employee post up the same comment or Monday moan in their own front window, even if it wasn’t on their employer’s usual route home? I tend to think they would be more cautious and that they allow themselves a bit more freedom in the perceived bubble of social media (albeit that any such bubble is always just ripe for the popping).

Whichever way you look at it, social media is a “frenemy” of the 21st century if ever I saw one. I’m not sure it’s quite a case of keeping your friends close and your frenemies closer, but as its presence in the employment context increases, like any friend of the high maintenance variety, it needs managing with care. Simply ignoring it is unlikely to make it go away anytime soon.

Claire Collinge
Partner, Workwise Legal LLP