Monthly Archives: October 2014

Employee Vs Employer Over Alleged Inadequate Investigation

Inadequate InvestigationSUMMARY:  In the recent case of Coventry University v Mian, the Court of Appeal considered whether an employer had breached its duty of care to an employee by bringing disciplinary proceedings against them after an inadequate investigation.

Legal background

A disciplinary investigation needs to be undertaken in a manner which is “reasonable in all the circumstances”, judged objectively by reference to the “band of reasonable responses”. What this means in practice is that an employer will need to investigate sufficiently to ensure that the substance of the allegations is clear, in order that these can be put to the employee in sufficient detail to enable a meaningful response. The person who appointed the investigating officer should decide at the end of the investigation what the next steps should be, in view of its findings.

Employers have a duty to take reasonable care for the health and safety of employees in the workplace and there is an implied term of mutual trust and confidence in all employment contracts. Employees could bring a personal injury claim if this duty is breached.  They would need to show that the employer has breached the duty of care, that this breach has caused the employee injury and an injury of that type, as a result of the breach, was reasonably foreseeable.

Facts of this case

Dr M was employed by Coventry University. One of her colleagues, Dr J, left to take up a post at Greenwich University.

Greenwich University contacted Coventry University expressing concern about a “large disconnect” between statements made in Dr J’s reference and his performance. The reference was purported to be written by Dr M and it was agreed that this reference was inaccurate.

The Associate Dean of the Faculty investigated how the reference had been provided.  As part of the investigation, the Associate Dean discovered 3 other draft references for Dr J saved on Dr M’s hard drive and obtained the view of Dr M’s line manager (Dr C) who doubted that the signature on the reference was Dr M’s. The Associate Dean then invited Dr M to a meeting.  She said that she had agreed to be a referee for Dr J and that he had provided references he would like her to produce, which she had saved onto her H drive. These contained false, misleading and inaccurate statements which she had refused to use. She had written short references for him instead but had deleted these from her computer.  She had retained the longer references prepared by Dr J, to keep him quiet. She felt intimidated by Dr J, but had not raised this with Dr C.

The Associate Dean sought further information from Dr C about relations between Dr M and Dr J.  Dr C advised that Dr M had not complained to her about Dr J’s behaviour. As far as she knew, relations between Dr M and Dr J were cordial.

The Associate Dean considered that Dr M had a case to answer for gross misconduct. He recommended disciplinary proceedings to consider the allegation that Dr M had been complicit with Dr J in the preparation of false and misleading employment references. After consultation with the University’s HR department, it was decided that disciplinary proceedings should be instigated.

After being invited to a disciplinary hearing, Dr M was signed off sick and the hearing was delayed for several months. An independent assessor eventually dismissed the allegations.

Dr M did not return to Coventry University and she brought proceedings arguing that in commencing disciplinary proceedings without undertaking further enquiries, the University had been in breach of contract and/or negligent so as to cause her psychiatric injury.

A judge upheld Dr M’s claim and Coventry University appealed this decision.

The Court of Appeal’s decision

The Court of Appeal allowed the appeal and dismissed Dr M’s claim.

The Court of Appeal held that the judge had ended up substituting his own judgment for that of Coventry University.

The test the judge should have applied to the facts to decide whether there had been a breach of duty was whether the decision to instigate disciplinary proceedings had been “unreasonable” in the sense that it had been outside the range of reasonable decisions open to an employer in the circumstances. Reasonable people could reach different judgments on the same question and it was possible to be “wrong”, in this case about either the basis on which the investigation should have been undertaken or about Dr M’s culpability, without being negligent.

A reasonable employer could have concluded that there was a case for Dr M to answer on a charge of gross misconduct, on the basis of the evidence available at the time proceedings were instigated. This evidence included, in particular:

  • The finding of the three false references for Dr J saved on Dr M’s computer.
  • The fact that if Dr M had no involvement in the production of the reference for Greenwich University then Dr J must have intercepted Greenwich University’s request from her pigeon hole in a manned office without her knowledge. Two members of staff at the University thought this was implausible.
  • Dr M had not mentioned her concerns about Dr J to anyone. The fact that she had asked him to be an examiner for one of her PhD students, her agreement to be his referee and giving him access to her computer may have indicated Dr M and Dr J were on better terms than she suggested. Alternatively, her description of being intimidated by him could reasonably be considered to be consistent with her having been “persuaded” to reluctantly do something for Dr J, such as sending a false reference.

While Dr M strongly denied any complicity with Dr J, her account ultimately depended on her credibility.  Coventry University might have decided to accept her explanation on the basis of her otherwise excellent reputation, and to take the matter no further, but it was not unreasonable for it not to do so, and to instigate disciplinary proceedings, given some of the peculiar features of the case. Support for this decision also came from the fact that the independent assessor had not dismissed the case against Dr M out of hand.

A disciplinary hearing would permit the evidence on both sides to be considered, and a determination made as to the rights and wrongs of the case by an assessor.

What does this mean for employers?

Although the employee was ultimately unsuccessful in this case, it is clear that employees can bring a claim for negligence against employers who bring disciplinary proceedings against them without undertaking an adequate investigation first. This case illustrates the need for employers to undertake thorough investigations into disciplinary allegations.

It is important for an employer to clearly define the allegations at the outset. The investigation should involve searching for relevant contemporaneous evidence and speaking to each relevant witness before putting the allegations to the individual who is the subject of the allegation. The more serious the allegation, the more thorough the investigation needs to be. The employee needs to have a clear understanding of what the allegations are and the investigator should be careful to ensure that any issues that arise as a result of an interview are followed up before a decision on the pursuit of disciplinary proceedings is made.

Contact Details

For more information about this case or conducting investigations and commencing disciplinary proceedings, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

High Performance Culture vs Family-Friendly Workplace?

SUMMARY: Can Employers take advantage of the government’s drive to make workplaces more flexible and family-friendly?

The government’s campaign for a better work-life balance continues. Employers are going to be increasingly called upon to demonstrate that they care for their staff; at the top of the agenda is a good work-life balance underpinned by a raft of continually developing family-friendly rights.  Some of the main changes are summarised below:

2014

  • Flexible working: All employees with 26 weeks’ service can now apply for flexible working. Employers should follow the ACAS Statutory Code of Practice, Handling in a reasonable manner requests to work flexibly to ensure compliance.  Further guidance can be found in the ACAS guide, The right to request flexible working: an ACAS guide.
  • Ante-natal appointments: Eligible employees and agency workers can take unpaid time off work to accompany a pregnant woman to two antenatal appointments, up to a maximum of six and a half hours for each appointment.  In addition, individuals are protected from suffering a detriment or being dismissed in relation to time off to accompany a woman to ante-natal appointments.

2015      

  • Shared parental leave: Parents will be able to choose how they share their child care responsibilities following the birth or adoption of a child under the new shared parental leave legislation. The new scheme will make up to 50 weeks of shared parental leave and 37 weeks of shared parental pay available for eligible parents to take or share.  ACAS have now published Shared parental leave: a good practice guide for employers and employees.
  • Parental leave:  The existing parental leave regime will be extended to parents of children aged five to 18 years of age. Currently, only parents of children aged five and under can take such leave.  This type of leave is unrelated to “shared parental leave”, which will not have any impact on the existing right to take unpaid parental leave.
  • The right to attend adoption appointments:  Eligible employees and agency workers who are proposing to adopt, either on their own or jointly with another person, will be able to take time off work to attend adoption appointments in certain circumstances. The time taken off may be paid or unpaid, depending on whether the employee or agency worker is adopting alone or has elected to be the main adopter where they are part of a couple who is adopting. An employee or agency worker exercising the right to take paid time off may do so on up to five occasions in relation to any particular adoption, up to a maximum of six and a half hours for each appointment.

Whilst employers can now have more confidence in managing some of the legal risks associated with dismissing an employee following the significant reduction in tribunal claims, has the drive for employers to become more family-friendly focused created an operational headache for businesses?

Smart employers are unlikely to think in this way, identifying instead these changes as an opportunity to tell staff about the support available to them. If the goal is to maximise productivity with a view to increasing the bottom line, employers need a highly motivated workforce as well low staff turnover. Staff who feel valued and understand the benefits on offer will be committed to realising financial and operational aims.

Key to achieving a positive outcome from changes in employment law and HR practice is the introduction and communication of relevant policies.  Reassured employees confident in their employer’s practices are likely to be committed for the long-term.

Promoting a more family-friendly culture to support a better work-life balance has the potential to play an important role in contributing to a high performance culture.

Contact Details
Further information about the new shared parental leave rights can be found in our October 2014 Edition of the FGazette.

For more details about family friendly rights please contact:

fgmedia@fgsolicitors.co.uk
+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

The Importance of Itemised Payslips and Deductions

Payslip DeductionsSUMMARY:  In the recent case of Ridge v HM Land Registry, the EAT confirmed the position that adjustments on a payslip are deductions and should be itemised.  Following this, we set out tips for dealing with situations where deductions from pay may be made.

Legal background

An employee has a right to an itemised pay statement.  This statement must contain:

  • the gross amount of the wages or salary;
  • the amounts of any variable, and any fixed, deductions from that gross amount and the purposes for which they are made;
  • the net amount of wages or salary payable; and
  • Where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

If an employer does not comply with the requirement to notify the employee of deductions on the payslip, the employee can bring a tribunal claim and the tribunal could:

  • issue a declaration that the payslip does not contain the required particulars; and
  • make an order to pay the employee the total amount of the deductions made in the 13 weeks before the application to the tribunal.

Facts of this case

In this case, the employer paid its employees on the last day of the month and each employee was given a payslip. The gross amount of pay the employee was entitled to receive was set out on the left-hand side of the payslip (as a general rule, one-twelfth of their gross annual salary, plus any allowances they were entitled to) and deductions from that amount were set out on the right-hand side.

The employee, Mr R, had significant periods of sickness absence. After exhausting his sick pay entitlement he continued to be absent from time to time.  This meant that there were months when he was entitled to be paid for some days but not others. This affected the figure for his gross pay in two ways:

  • where absences were reported and processed before the end of a month, the gross amount was reduced appropriately; and
  • where absences were not reported and processed before the end of the month in which they occurred Mr R was overpaid for that month. The overpayment was recovered from his following month’s gross pay.

Reductions to Mr R’s payslips were shown by a figure with a minus sign next to them. However, there were no further details explaining the variation to his gross total pay, whether adjustments were made in the same or following pay period.

Mr R considered that an explanation should appear on his payslips but, while it explained the purpose of the deductions, his employer did not make any changes to its payslips.

The Employment Appeal Tribunal’s (EAT’s) decision

The employment tribunal had dismissed Mr R’s claim and held that the variations to Mr R’s pay were adjustments, not deductions.

The EAT overturned the employment tribunal’s decision and held that where overpayments were recovered from a subsequent month’s gross pay, this was a deduction and the employer had failed to identify the amount and purpose of the deductions on Mr R’s payslip.  Mr R was entitled to a declaration to that effect.

The EAT suggested that some abbreviated words on Mr R’s payslip to make it clear that the sum was recovery of an overpayment would have sufficed.

The EAT also provided some helpful guidance for itemising payslips:

  • deductions must be identified and explained;
  • hidden and unexplained deductions are not permitted; and
  • it is enough to state gross and net salary and to identify the amount of any deductions and the purposes for which they are made; detail of detail is not required.

The EAT did not however order the employer to pay the employee the total amount of deductions as the employee claimed it should.  When making this decision, the factors the EAT took into account included the fact that the deductions were apparent on the payslip and the purpose of the deductions was explained to Mr R before he commenced proceedings.

What does this mean for employers?

This case highlights the importance of correctly itemising payments and deductions on payslips, even where the employee understands the basis for a deduction.  Employers that reduce an employee’s wages to recover an overpayment made in a previous period may be at risk of punitive damages up to the amount that they have deducted if they have not identified the deduction properly.  This is despite the employer being entitled to make the deduction and the employee understanding the reason for the deduction.

Of course, as well as ensuring the deduction is explained on the payslip, it is important to ensure that the employer is permitted to make the deduction in the first place.  Otherwise, employers could also bear the risk of employees bringing a claim for unlawful deductions from wages.  In the event of a series of deductions, the claim could go back much further than the last 13 weeks.

Here are our top 5 tips for successfully deducting sums from employees’ wages:

1. Ensure that you have the employee’s consent  for the deduction.  The usual way to obtain this is in the contract of employment.

2. Think about obtaining consent for all the types of deduction you may wish to make, as well as an overarching statement permitting deduction of monies owed by the employee to the employer.  Usual deductions include:

  • where an employee has taken more holiday than they have accrued;
  • pension contributions;
  • deductions for a float provided at the beginning of employment;
  • where an employee is paid enhanced maternity pay on condition that she returns to work for a set period after her maternity leave, but she does not do so;
  • where an employer has loaned a sum of money (for example for a season ticket loan); and
  • deductions for training costs where an employee leaves shortly after the training.

3. Ensure that the contract of employment, containing clauses referring to the relevant deductions, is signed by the employee before any deductions are made and that you have a copy of this on file.

4. In relation to deductions for specific (perhaps one-off) purposes, have a separate signed agreement before the event leading to the deduction occurs.  For example:

  • In relation to training, have a separate training agreement in relation to specific training courses if you intend to be able to claw back some or all of the training costs from employees, setting out the circumstances in which some or all of the costs may be deducted.  This must be signed in advance of the employee starting the training.
  • In relation to a season ticket loan, have a separate signed agreement before the loan is provided to the employee.
  • In relation to enhanced maternity pay, have a separate signed agreement before the employee commences maternity leave setting out the circumstances in which the employer will be entitled to deduct the enhanced payments from the employee’s wages.

5. Ensure itemised payslips are provided on or before the payment date.

Contact Details

For more details about details to include on payslips and ensuring that you can make the appropriate deductions from wages please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

FGazette October 2014

Welcome to the latest edition of FGazette! The quarterly newsletter of FG Solicitors – Lawyers for today’s employers.

With changes in the employment sphere showing no signs of slowing down as the date for a general election in May 2015 edges nearer we present the October edition of the FGazette.

This month’s edition looks at Data Subject Access Requests, Family Friendly Working Hours, Restrictive Covenants and also features a Q&A on the launch of the Government’s Health and Work Service.

If you have any problems viewing this link, please contact us on 01604 871143 or fgmedia@fgsolicitors.co.uk