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January 2019 newsletter

In this months edition...
Welcome to our first edition of 2019 - we hope you and your family had a lovely, peaceful Christmas and New Year.  This month, to get you in the mood for a successful 2019, we feature a case of when a resignation letter is not really notification of leaving an organisation (see our second case).

What's on the horizon
Recent cases

Unfair dismissal
HR good practice

Covert recording
Abbreviations used in this issue:
EAT - Employment Appeal Tribunal;
ET - Employment Tribunal;
Updates to member's toolkit
New - Manager guidelines on being a note taker
29 March 2019
Post-Brexit employment rights

Two draft statutory instruments have been laid before Parliament to come into effect on 29 March 2019 (exit day). Their purpose is to remove references in employment law legislation which will no longer be appropriate following withdrawal. The draft statutory instruments are being shared as illustrative examples of how the European Union (Withdrawal) Bill can be used to correct retained law relating to employment rights.

And currently being discussed, no definite information or dates available:

Government's plans to toughen workers' rights?
It has been reported that the Government intends to implement a number of recommendations which emerged from the Taylor Review. Key discussion areas are:
  • Introducing legislation to give gig economy workers the right to request a temporary or fixed hours contract after 12 months of work
  • Close the 'Swedish derogation' loophole which enables employers to pay agency workers less than full time staff for doing the same job
  • Publish names of who do not pay out after employment tribunals.

Tribunal fees may be reintroduced
The Government is considering reintroducing fees for employment tribunal claims. Discussion is around endeavouring to create a fee system which strikes an appropriate balance between funding the court system and ensuring access to justice. 

Apprenticeship levy more flexible?
The Government has announced that it would introduce reforms to give businesses greater flexibility and expand apprenticeships in science and other STEM subjects. The new proposals may allow large employers to transfer up to 25% of their apprenticeship levy funds to businesses in their supply chain.
New wage rates announced for 2019 are as follows:

Current rate Future rate (from April 2019)
NLW £7.83 £8.21
21-24 rate £7.38 £7.70
18-20 rate £5.90 £6.15
16-17 rate £4.20 £4.35
Apprentice rate £3.70 £3.90
Accommodation offset £7.00 £7.55
Unfair dismissal

Doy V Clays Limited
This is a claim of unfair dismissal where the treatment of other employees was thought to be inconsistent.  Doy was accused of threatening behaviour towards his managers following a work-related dispute. These threats led to one of the managers moving his family out of their home. Following a disciplinary hearing, Doy was dismissed for gross misconduct and brought a claim for unfair dismissal, alleging that there had been disparity of treatment. 

Doy had worked for Clays Limited, initially on a casual basis, since 2004. He was paid a yearly salary based on working 1,695 hours throughout the year, but he could be required to work more hours in some weeks than in others, and his pay for shifts was at two different rates based on a number of factors.

In 2016 Mr Doy had a dispute with his managers as to his level of wages for night shifts, but Clays supported the managers in the dispute. Following this there were two incidents of threatening behaviour from Doy, to the extent where Clays’ general manager moved his family from their home as he felt they were in danger from Doy.

Following an investigation and a disciplinary hearing, Doy was dismissed for gross misconduct relating to threatening behaviour. Doy appealed his dismissal but this was rejected. Doy submitted a claim of unfair dismissal, alleging that there had been disparity of treatment between himself and other employees, including a number of employees who he claimed had made much worse comments than his, and further claimed physical violence had taken place between colleagues previously that had not resulted in dismissal.

The ET found that the reason for Mr Doy’s dismissal was conduct and held that dismissal was in the band of reasonable responses. As such, they found that Clays had acted fairly in deciding that this was a sufficient reason for dismissal.  However, the ET failed to consider Doy’s disparity argument, therefore the case was appealed to the EAT.  The statutory test for unfair dismissal is set out in the Employment Rights Act 1996 and sets out that when determining the question of whether the dismissal is fair or unfair this depends on a number of circumstances, including:
  • Size and administrative resources
  • Employer acting reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee
  • Equity
  • The substantial merits of the case.

The reference to ‘equity’ in the test requires consideration of sanctions that have been imposed on other employees in similar circumstances to ensure that the employer acts consistently. While an employee at risk of dismissal may bring examples of inconsistency to the attention of their employer, this should not be relied on and the decision-maker should always make appropriate enquiries and consider consistency for themselves before coming to a decision on any sanction.

This case serves as a useful reminder that employers must strive to treat employees as equally as possible.

Top Tips
  • Where more than one employee is being disciplined as a result of the same incident it is worth considering appointing the same decision-maker to each case
  • You don't need to come to the same conclusion from previous cases, even when the allegations are the same or very similar. The key is to show that this has been properly considered and appropriate weight attributed
  • A difference in treatment may be justified based on the individual circumstances of the case, for example because of mitigation. Only in rare cases involving ‘truly parallel circumstances’ arising from the same incident will disparity of treatment result in a clear unfair dismissal.
Resignation letter

East Kent Hospitals University NHS Foundation Trust v Levy
A letter that gives one month’s notice should not automatically be interpreted as a letter of resignation, an EAT judgement has confirmed.

Levy was employed in the records department of the hospital. She had experienced difficulties with another colleague and had been spoken to by the trust’s operational manager about her absence record. However, she had worked in the records department for around 10 years. Having become unhappy with her position, Mrs Levy on 10 June 2016 successfully applied for a role in the radiology department – subject to pre-engagement checks. This came shortly after an incident with another employee. Her letter to her line manager stated 'Please accept one month’s notice from the above date'. This was acknowledged on the same day 'Thank you for your letter … in which you tendered your notice of resignation. It is with sincere regret and disappointment that I accept your notice of resignation. I can confirm that your last day of work within Health Records will be Friday 8 July 2016. I would like to take this opportunity in thanking you for your hard work, dedication and contributions to a highly successful team over the years, and I wish you every success with your future employment.'

However, a few days later, the job offer in the other department was withdrawn. This was 'unofficially' due to her sick leave record. Levy tried to retract her notice, but the line manager refused and wrote to her to confirm the date of termination, addressed the issue of outstanding annual leave entitlement and completed a staff termination form. Levy claimed unfair dismissal.

The trust argued that the words used by the claimant in her letter giving notice were unambiguous, but this argument was rejected by the ET because the letter could have been either a notice of intended transfer or a notice of termination. The ET concluded that the letter would lead the reasonable observer to agree that the claimant was not terminating her employment but notifying her manager of her intention to accept the offer.

The ET also considered the context of Levy’s letter in that she was unaware that her employment history might adversely affect the conditional offer and that she needed to work to support herself and her family and to assist in caring for her father.

The case went to the EAT who upheld the ET's decision that the Claimant's notice related to her change of internal departments, rather than a resignation of employment altogether. 

The correct question to ask is how a reasonable recipient would have understood the words, taking into account the particular circumstances known to the recipient at the time. Later events can be taken into account in that interpretation, provided that they are genuinely explanatory of what happened and do not reflect a change of mind. As a result, the employee had not resigned from her employment and the employer dismissed her when it treated her notice as a valid resignation.

Top Tips
  • While the circumstances of this case are quite unusual, disputes often arise over ambiguous resignations, so always ensure clarity whenever an employee resigns or offers to give notice to resign
  • It is essential to seek to understand why the employee is resigning, the notice they are giving and clarify when the employment will end.
Covert recording
This month we give an overview of covert recording and monitoring taking into account GDPR legislation.

Employers may wish to monitor their workplace for various reasons, the Data Protection legislation does not prevent employers from monitoring workers, but employers should remember workers are entitled to some privacy at work. Employers must tell employees about any monitoring arrangements and the reason for it.

Why monitor?
Monitoring in the workplace can occur for a variety of reasons -  it can be used to safeguard employees, for example to ensure workers aren't at risk from unsafe working practices. In some sectors employers may have a legal or regulatory need to carry out some monitoring. The information gathered through monitoring should only be used for the purpose it was carried out for, unless it leads to the discovery of other things such as a breach of health and safety.

Monitoring of staff at work can be done in various ways and with the increase in technology, is is now a very easy process to set up.  Monitoring can include:
  • CCTV
  • Review of emails or websites visited
  • Listening in on telephone calls
  • Searches of personal belongings.

What you need to consider when using CCTV?
If CCTV is installed the organisation must make sure the employees are aware of it, this is usually done by displaying signs on the key entrances to the site which clearly states that CCTV is in operation on the site.  The signs should:
  • Be clear, visible and readable
  • Contain details of the purpose of the surveillance and who to contact about the scheme.
Under the Data Protection legislation if the employer gives a reason for the cameras for example to prevent theft, the employer cannot then use the footage for another reason such as recording entry and exit of workers from the workplace.

Is there any particular process I should follow when conducting bag searches?
If employers intend to carry out bag searches a search policy must be in place that informs employees:
  • What may be searched eg; bags, purses, other personal belongings, vehicles, etc
  • Who will conduct the search (suitably trained staff, always accompanied and ideally will be of the same gender as the employee)
  • Possible consequences if unauthorised items found.
Covert monitoring
It's very rare that employers would need to carry out monitoring in secret without the staff being told they are being monitored. Employers must have a genuine reason to carry out covert monitoring such as suspected criminal activities or malpractice. Monitoring must be obtained as quickly as possible, and only as part of a specific investigation. The monitoring must stop when the investigation has finished.

Can I secretly record conversations with my manager and/or HR?
If an employee believes they are being treated unfairly, bullied, discriminated against or are about to lose their job, it is not unusual for them to start gathering as much evidence as they can to support their case from an early stage. Increasingly such evidence includes secretly-recorded exchanges or meetings with the employee’s colleagues, and with the increase in technology where most mobile 'phones now have a record facility, this can be easily done without anyone knowing.

It is unlikely that many of the employees who resort to such tactics have properly considered the implications of secretly recording their colleagues, since they are likely to view their actions as simply exposing any perceived wrongdoing. However, from the employer’s point of view recording individuals without their permission is likely to represent a serious breach of the trust and confidence that are paramount to the employment relationship. Such conduct is also likely to fall foul of Data Protection regulations and will potentially be a criminal offence, unless the legitimate interests of the recorder outweigh the interests of the individuals being recorded.

Covert recordings can also be a violation of the right to privacy of the individuals recorded under Article 8 of the European Convention on the Protection of Human Rights (ECHR). Article 8 of the ECHR provides that everyone has a right to respect for their private and family life, their home and their correspondence. Even if a covert recording containing private information is not shared or made public, the 'intrusion' of the recording alone is a breach of privacy.

For the these reasons, generally, the answer to the above question is no you cannot secretly record conversations. 

Will an employment tribunal allow a covert recording?

There has been cases, where the recording has been listened to by the judge and if in their belief they feel the recordings are relevant to the claim, tribunals will generally allow them to be admitted as evidence. Therefore employers still need to be alert to the cost and reputational damage that covert recordings can cause.

To prevent covert recording of formal meetings (disciplinary, capability or grievance) remind staff in their invite letters that recordings are not permitted and ensure no personal belongings are allowed in the meeting room.

Top tips
  • Employers should have written policies and procedures in place regarding monitoring at work
  • Monitoring shouldn't be excessive and should be justified
  • Staff should be told what information will be recorded and how long it will be kept
  • If employers monitor workers by collecting or using information the Data Protection Act/GDPR legislation will apply
  • Information collected through monitoring should be kept secure.
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This bulletin is for general information only.  It is not intended to constitute professional advice.  Though The Sevier Consultancy Group is confident of its accuracy, no duty of care is assumed to any recipient of the bulletin and no liability is accepted for any omission or inaccuracy.
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