Category Archives: Court of Appeal

Staff Handbook: Handy or a Hindrance?

staff-handbookSUMMARY: Employer’s bid to change its staff handbook is rejected by the Court of Appeal… Read on to stop this happening in your organisation.

Staff Handbooks are a great way of telling staff what you expect from them at work and how they will be treated in return. A constantly evolving handbook with inherent flexibility to adapt to organisational change can be a very effective people management tool.

To ensure there are no limitations on an employer’s ability to make changes, the handbook should be a guidance document, which does not form part of the contract of employment.

In a recent dispute about a change to an absence management process the Court of Appeal confirmed that the employer could not unilaterally implement a change to that process even though it was contained in the handbook. The relevant process was contained in the part of the handbook which was stated to have contractual effect and therefore the employees’ consent was necessary.

The following are some simple do’s and don’ts to avoid this problem happening:

DO check whether your existing staff handbook is contractual or non-contractual.  Sometimes a handbook will state that part of it is contractual and part of it is non-contractual.  It is easier to amend a handbook (or parts of it) that are non-contractual than those that are contractual. If the contractual status of the handbook is unclear, consider seeking legal advice.

DON’T amend your handbook if it is (or parts of it are) contractual without consulting with staff to reach agreement. There may be an obligation to enter into a more formal consultation process if more than 20 employees are affected and/or there is a recognised trade union. If you are unsure about your consultation obligations, consider seeking legal advice.

DO consider putting in place a completely non-contractual handbook if you do not already have one.  This would avoid the worry of having to consult with staff every time a change is made; notification to staff would suffice.  Staff would still be bound by the policies in a non-contractual handbook because they have a duty to obey lawful orders.

DON’T forget to review contracts of employment at the same time as a contractual staff handbook, especially if you are looking to remove the contractual parts of the handbook; if some elements need to remain contractual relocate them to the contract.

Get your staff handbook right and it will definitely be handy rather than a hindrance.

Case

Department for Transport v Sparks and others [2016] EWCA Civ 360

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce 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.

Does “Discretionary” Commission Mean Employers Can Pay Whatever They Want?

CommissionSUMMARY: Many employers give their employees discretionary bonuses or commission. However, “discretionary” does not mean that employers can pay whatever amount they choose.

In a recent case, the Court of Appeal agreed with the High Court that the amount of “discretionary” commission paid to an employee should be increased.

This case is a useful reminder that an employer should be able to show that the way in which it has exercised its discretion is not irrational or perverse.

Here are our top tips for employers who want to avoid challenges by employees about how they have exercised their discretion:

  1. Have in place an appropriately worded clause in the contract of employment setting out that a bonus/commission is discretionary.
  1. Consider the reason(s) for the amount of bonus/commission you are giving to an employee.
  1. Record your reason(s) in writing at the date the bonus/commission decision is made so that you have evidence ready in the event of a challenge.  Your record should show why and how you have reached a decision.  Flipping a coin is not a rational decision-making process!
  1. If you want a bonus/commission scheme in place, ensure that this is suitably worded to give you flexibility.  For example, the flexibility to vary or withdraw a scheme can be a useful tool.
  1. If you tell employees there are factors that will be taken into account in decision making (for example, in a commission scheme), ensure these factors are taken into account.  If the factors change, tell employees in advance of them carrying out the work.
  1. Treat staff consistently.  If an employee feels that they have been awarded a lower commission/bonus than others, they may claim this is on the basis of a protected characteristic (such as age, sex or disability).  This could leave an employer facing a discrimination, as well as a breach of contract, claim.

If you follow these tips, you should be able to motivate your workforce with the possibility of a bonus/commission payment, but avoid claims from employees when you want or need to pay less.

Case

Hills v Niksum Inc [2016] EWCA Civ 115

Contact Details

For more details about how to set up and implement bonus or commission schemes 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.

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.

Retirement Age of 65 Could Be Justified

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SUMMARY: Following the decisions of the Employment Appeal Tribunal, Court of Appeal and Supreme Court, an Employment Tribunal has found that the retirement age of 65 for Mr Seldon was justified in all the circumstances. Continue reading