Category Archives: whistleblowing

Protected Conversations Must Remain Secret

SUMMARY: Learn more about protected conversations with your employeesPrivate conversations

In 2013 there was a welcome change, which now enables employers to have what are called protected conversations with their employees about ending the employment relationship.  Previously, employers had been nervous about having such conversations, due to the risk that an employee would later rely on what had been said as evidence in an unfair dismissal claim.

Since then employers in some circumstances have been able to speak more freely with those employees who are not considered to have a future with the organisation, usually because their performance or conduct is substandard. Once the discussions have started, there are likely to be two outcomes:

  1. The employee agrees to leave and their departure is managed with a settlement agreement to remove the risk of any tribunal claim. To learn more about settlement agreements, please click on the following link – http://www.fgsolicitors.co.uk/news/settlement-agreements-a-perfect-ending/
  2. The employee declines the offer of an agreed departure.  If that is the case, the employer can then go back to its internal procedures to manage the situation. If the employee is subsequently dismissed, the following protection arises so that there can be no reference to either:
  • the content of any settlement offer or the pre-termination discussions; and/or
  • the fact an offer has been made or pre-termination discussions have arisen. This level of protection has recently been confirmed by the Employment Appeal Tribunal, which explained that an employee should not be able to refer to the fact discussions have taken place pre-dismissal in an unfair dismissal claim.

Clarification was also provided that the protection extends to any internal discussions between different managers and human resources.

Protected conversations are potentially a safe way of managing straightforward people management issues. Employers however wanting to have such discussions should be aware of the following:

  • The protection is lost if either party engages in improper behaviour including for example, bullying, harassment, discrimination, victimisation, physical assault, or undue pressure.

Telling an employee that the capability or conduct procedure will be invoked if terms cannot be agreed would not be improper behaviour.  Stating that the individual would be dismissed if they do not agree to leave would be improper behaviour.

  • The employee should be given a reasonable period of time to consider any offer and take advice; ten days is usually considered to be reasonable in most cases.  Although there is no statutory right to be accompanied at any meeting where a protected conversation takes place, as a matter of good practice an employee should be entitled to be accompanied by a work colleague or a trade union representative.
  • The protection will only apply in respect of “ordinary” unfair dismissal claims. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing or health and safety), or any other claim such as discrimination or breach of contract, the protection afforded to pre-termination negotiations will not apply.  This does therefore create inherent uncertainty in the effect of initiating a pre-termination negotiation until an employee commences proceedings, or decides not to do so as settlement terms have been agreed.

If you consider that you may want to have a protected conversation with an employee, it is preferable to take legal advice before doing so.  This will ensure that you are confident that a protected conversation is the right way forward and if not, what other ways there are to managing the situation.

Contact Details

To explore how protected conversations and settlement agreements can provide solutions to workplace problems – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

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

Resolving Employment Disputes

10032845_mSUMMARY: What do you do when a tribunal claim is brewing…. Fight or Flight?

Whilst the number of tribunal claims are down, claims are still happening; unfair dismissal claims still prevail but often more complex issues such as discrimination and whistleblowing are involved.

Being on the receiving end of a tribunal claim can feel acutely painful from both a time and costs perspective. The following are a few simple do’s and don’ts to help manage a dispute which is brewing.

DO consider all the options for dealing with a dispute or a tribunal claim.

For example:

  • Acas Early Conciliation

Before a claim can be started an employee must contact Acas; Acas will then establish if the employee and employer can resolve the dispute without the tribunal’s intervention. Neither party has to participate in the process and if settlement cannot be reached, the employee is then free to claim.

Even if there is no interest in settlement, this process may serve as a reconnaissance exercise to understand more about the employee’s complaint in preparation for defending any subsequent claim.

  • Defend the case

Some employers may prefer not to shy away from the gaze of the tribunal because the complaint requires a robust response.  For example:

  • there is no case to answer;
  • the employee’s settlement expectations are unrealistic; or
  • there may be important financial and commercial considerations. Disabusing staff of a settlement culture may be one reason. Broader issues may also be at stake, which relate to pay, hours and holidays.
  • Judicial Mediation

Mediation has the advantage of taking place in a less formal setting in comparison with a full tribunal hearing. The mediator, an employment judge, will work with the parties on a confidential and without prejudice basis to explore if there is a way of resolving the dispute.  The parties are free to discuss their differences and consider the options for resolving the dispute, without the fear of their discussions being repeated if the mediation fails.

Agreement can be reached on matters which a tribunal would not be able to address. For example, the employee leaving, an apology or a reference being issued, or the employee being provided with assistance to find another job.

From an employer’s perspective a satisfactory commercial outcome, without having to concede its position can often be achieved.

  • Settle the case before the hearing

Once a tribunal claim has been issued, the Acas conciliation service will still be available to consider with the parties whether there is a solution. Settlement agreements can also be used.

DON’T ignore a tribunal claim once received.

Employers only have 28 days from the date when the claim is sent to respond to the tribunal setting out why the claim is disputed.  A response will usually be rejected if received after the expiry of the 28-day time limit.  Possible consequences are that a judgment could be issued without the employer being able to defend its position. This could be costly as compensation for discrimination claims is uncapped, and the maximum compensatory award for unfair dismissal from 6 April 2016 is the lower of £78,962, or one year’s pay.

Until and unless settlement is properly concluded, a response must always be filed.

DO consider ways to limit an employee’s opportunity to bring a claim in the first place.

Effective ways to reduce the risk include:

  • having legally compliant contracts of employment and policies and procedures;
  • introducing a robust appraisal system and ensuring current job descriptions exist;
  • communicating to staff the expected workplace standard of behaviour to reduce the risk of harassment and discrimination claims; and
  • dealing promptly and fairly with grievances and whistleblowing complaints.

DON’T forget …..

…. if a dispute arises, a sound strategy, which acknowledges the needs of your organisation and the merits of the complaint, will go a long way towards finding the right solution, whether that be a hard fight in the tribunal or a quick exit via the settlement route.

Contact Details

If you would like to identify the right strategy for your employment disputes, please contact a member of our Employment Law team:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

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

FGWorks December 2015

FGWorks Dec 2015

This latest edition of FGWorks is packed with key employment law updates and includes issues such as misconduct and punishment in the workplace, key employment law changes for 2016 and information about our latest seminars.

We hope you will find our Newsletter a useful source of information but your feedback is always welcome and important to us as we continually strive to improve and develop the services we offer. Feedback can be sent to fgmedia@fgsolicitors.co.uk.

For further news updates and topics visit us on: www.fgsolicitors.co.uk

 

Employment Law Update Seminar 2016

Employer update seminarDate: Wednesday 13 January 2016

Time: 8:00 – 10:00 am

Cost: Free including breakfast

Venue: FG Solicitors Offices, 2 Deanery Court, Grange Farm, Preston Deanery, Northampton, NN7 2DT

Despite statistics showing a drop in tribunal claims, many cases reported in 2015 have kept us all on our toes.

Start 2016 with a review of key employment law decisions and how these will impact you and your business.

Key cases we will cover include:

Unfair dismissal

  • When can employees involved in an incident be treated differently?
  • Offensive tweets
  • Post-natal depression
  • Is a confession enough?
  • Positive cocaine testing

Working Time

  • Is travelling time working time?
  • Is “on-call” working time?

Whistleblowing

  • When is a disclosure in the public interest?

Equality Act

  • Does this cover caste discrimination?
  • Is obesity a disability?
  • Is an OH report enough?
  • What constitutes associative disability discrimination?

TUPE

  • When is there a transfer?
  • What happens to employees on sick leave at the time of transfer?

And much more…

To book your place at our seminar, please contact us using the details below:

info@fgsolicitors.co.uk

+44 (0) 808 172 93 22

We look forward to seeing you at our next seminar.

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

Thank you for attending our Seminar!

Effective Discipline & Grievance Processes

Thank you to all those who came to our Effective Discipline and Grievance Processes Seminar, which was held on 15 September in association with the CIPD Bedfordshire Branch.

The event was well attended and provided an opportunity for organisations to meet up and obtain a useful insight into effective discipline and grievance processes as well as gain practical guidance on difficult cases.

Floyd Graham was the featured speaker and struck a chord with many of the attendees from whom we have received some great testimonials via our feedback questionnaire.

If you missed the event and would like to receive a copy of the presentation slides for the event then please contact us via the details below:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

Performance Management Seminar – 15 September 2015

Performance Management

Effective Discipline and Grievance Processes for Performance Management:  Practical Guidance on Difficult Cases - in association with: CIPD Bedfordshire Group

Date: Tuesday 15th September 2015

Time: 9:30am – 13:00pm

Venue: Elstow Playing Field Association Main Hall, Wilstead Road, Elstow, Bedford, MK42 9YP/YF

Cost: Free with buffet lunch included

In association with the Bedfordshire CIPD Branch we will explore how you can apply the law effectively to support  performance management particularly focusing on dealing with difficult cases. The  session will provide insights into how investigations and disciplinary hearings should be managed when allegations of unfair discrimination, harassment or bullying are being considered. We will then explore best practice guidelines when hearing grievances arising from protected disclosures/ whistle-blowing.

To book your place at our Performance Management seminar, please contact us using the details below:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

Whistleblowing – The Line Between a Quick Toot and a Vuvuzela Style Blast

vuvuzelaUK Workers who blow the whistle are protected from employers dismissing them or subjecting them to a detriment on the grounds that they have made a protected disclosure.

A protected disclosure is the disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show the existence of one of six particular states of affairs (e.g. failure to comply with a legal obligation).

Although not the subject of this article, following a recent Supreme Court decision, an LLP member is considered as a worker and so has whistleblowing protection.

But what happens if a worker blows the whistle and will not stop?  Will they remain protected or could the continual noise be separated from the initial blast?

This situation was considered in Panayiotou v Kernaghan by the Employment Appeal tribunal (EAT).

Facts:

Mr P was a police officer who made protected disclosures relating to officers’ treatment of victims.  Although an investigation largely upheld his concerns, he continued to campaign to right the wrongs he had identified and which he thought had not been rectified.  This campaign made Mr P increasingly difficult and time-consuming to manage and, after a long term sickness absence, he was eventually dismissed.

Decision:

An employment tribunal (with the EAT upholding its reasoning) held that Mr P’s disclosures were not the reason for his dismissal (or other detrimental treatment).  Rather than the disclosures themselves, it was the way in which the employee pursued his disclosures (i.e. his campaign and his employer’s increasing frustration) which lead to the employer treating him in the manner that it did.  Although these events were related to the disclosures, they were distinct from the disclosures.

What this means for employers:

The way in which Mr P continued to blow the whistle in this case was not acceptable to the employer and it meant that the continual noise was separated from the initial toot drawing the employer’s attention to a matter of concern.  However, this is a fact specific case and it will be rare that an employee’s subsequent actions will be capable of being separated from the initial disclosure (in that they are “in no sense whatsoever connected with the public interest disclosures”, as the employment tribunal had found in this case).  In this case, events occurred over a number of years and the employment tribunal commented “the actions of the claimant were sufficient to try and to exhaust the patience of any organisation”.

Employers should also bear in mind that police officers do not have a statutory right not to be unfairly dismissed and it may well have been that the dismissal of another employee in these circumstances would have been unfair, even if it was not by reason of the employee making protected disclosures.

This is an area where employers should tread carefully and seek advice if they think that an employee has blown the whistle but may subsequently be behaving unreasonably.  An initial investigation into the whistleblowing allegations should always be carried out.

Contact Details

For more details about whistleblowing please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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

FGazette July 2014

140701 ThumbnailWelcome to the latest edition of FGazette! The quarterly newsletter of FG Solicitors – Lawyers for today’s employers.

We are delighted to present the July edition of the FGazette, which looks at the latest changes to flexible working; whistleblowing and restrictive covenants.

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

Employment Law Update Seminar – June 2014

Employment Law Changes 2014Employment Law Update 2014 – An Employer Focused Update

Date: Thursday 5th June 2014

Time: 8:00-10:00am              Cost: Free

Venue: FG Solicitors Offices, 2 Deanery Court, Grange Farm, Preston Deanery, Northampton, NN7 2DT

If you have managed to keep on top of the numerous employment law changes this year, you are either a genius or you have too much time on your hands.  For everyone else, you will benefit by attending our employer focused seminar on key employment law changes by showing how they would work in practical case-study examples.  The key changes we will cover include:

  • Flexible working – requests for all
  • Employment Tribunals – penalties, fees and mandatory Early Conciliation
  • TUPE – more flexibility
  • Illegal working  - increased penalties
  • Whistleblowing – public interest test
  • And much more…

To avoid disappointment reserve your place by completing the booking form below:

To book your place at our seminar, please contact us using the details below:

info@fgsolicitors.co.uk

+44 (0) 808 172 93 22

We look forward to seeing you at our next seminar.

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

Whistleblowing on Dangerous Snowy Conditions

SUMMARY: The EAT has upheld a decision that 3 separate emails about snowy conditions could amount to a “qualifying disclosure” about health and safety for the purpose of whistleblowing protection.

Legal Background

An employee who blows the whistle has protection against being dismissed or subjected to a detriment because they have taken this action.  Whistleblowing means making a qualifying disclosure and there are various reasons for which a disclosure can amount to a qualifying disclosure.  One of these reasons is if the disclosure is about health and safety.

To amount to a qualifying health and safety disclosure and so provide the employee making the disclosure with protection, the disclosure should show that the health or safety of an individual has been, is being or is likely to be endangered.

If an employee simply expresses an opinion or makes an allegation, this cannot amount to a qualifying disclosure.

Facts of this case

In this case, an employee sent 3 separate emails to 2 separate recipients relating to his concerns about his team driving to appointments in the snow in the winter of 2010.  He first sent 2 emails to the company’s health and safety manager and subsequently emailed a member of the company’s Human Resources department asking about payment if his team were unable to make appointments in the snow.

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

The EAT upheld the employment tribunal’s decision that the email correspondence taken as a whole was a qualifying disclosure.  It was clear in the final email to Human Resources that earlier correspondence had been sent about the dangers of driving in the snow.

Although taken on their own, the emails did not amount to qualifying disclosures, taken together they did amount to a qualifying health and safety disclosure.

What does this mean for employers?

Employers should be aware of the following:

  • Email correspondence can easily be referred to in a tribunal so emails should not be dismissed or sent lightly;
  • Emails which refer to dangerous working conditions, including dangerous driving conditions for sales staff, should be taken seriously;
  • Emails which seem short with insufficient detail on their own could be protected by whistleblowing legislation when taken with other emails;
  • If an employee refers to previous correspondence to another manager, the person receiving the later email should check exactly what the previous correspondence says and consider the emails together; and
  • A person should not be subjected to any detriment (i.e. be dismissed, not offered an opportunity for promotion or a pay rise etc.) because they have raised concerns about health and safety.

We would therefore always advise taking legal advice if an employer is considering dismissing an employee if there is a history of the employee raising health and safety concerns.

Hazel Robbins, Solicitor

Case: Norbrook Laboratories (GB) Ltd v Shaw

Contact Details

For more details about this case or whistleblowing please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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