Employment Law Newsletter November 2019
Off the record conversations can play a vital role in resolving workplace disputes. Section 111A of the Employment Rights Act 1996 says that confidential discussions about ending an employee's employment can be 'off the record' in certain circumstances. These are known as 'protected conversations'. If s111A applies, termination discussions cannot be used as evidence in an unfair dismissal claim unless there has been 'improper behaviour' by the employer. Section 111A only applies to ordinary unfair dismissal claims. Consequently, the content of termination discussions can be used as evidence in other claims, such as automatic unfair dismissal (for example a pregnancy related dismissal) and discrimination claims.
In Harrison v Aryman, an employee resigned and claimed constructive dismissal after a series of discriminatory acts relating to pregnancy and sex. She said the last straw was a 'confidential settlement proposal' she received from her employer shortly after she announced her pregnancy. The employer said the letter was off the record due to s111A. The employee said the letter was part of the employer's improper discriminatory behaviour and she should be allowed to use it in evidence.
The employment tribunal found that s111A applied, meaning the employee could not refer to the letter in her unfair dismissal claim. The employee appealed. The Employment Appeal Tribunal said the tribunal had got it wrong. When an employee's claim is for automatic unfair dismissal, such as a pregnancy related dismissal, s111A does not apply and the content of a protected conversation can be used in evidence. This is different from the situation in a normal unfair dismissal claim where an employee wants to refer to a protected conversation because they allege improper conduct. In that case the tribunal will need to hear evidence about the improper conduct before deciding whether the evidence can be used.
This case is a reminder to employers that 'off the record' conversations can come back to haunt you. If there is any risk of discrimination or an automatic unfair dismissal claim, take advice before starting any kind of dialogue about termination.
Sometimes employers want to minimise disruption when dismissing an employee, even for misconduct. Putting a false redundancy label on a misconduct situation can be costly though, even if it is well intentioned. The Court of Appeal looked at this issue recently in Base Childrenswear v Otshudi.
The employee was a photographer from the Democratic Republic of Congo. She had been employed for three months when she was made redundant. The employee alleged to the dismissing manager that her dismissal was related to her race, which he strongly denied. Her subsequent grievance was ignored. She then brought a discrimination claim. The employer defended the claim, maintaining that her dismissal was due to redundancy.
Over a year later, only a few weeks before the hearing, the employer changed its defence. They said the employee had been dismissed due to suspicions of theft. He said he had lied about the reason for dismissal to avoid confrontation with the employee. At the hearing, the employment tribunal upheld the discrimination claim. The tribunal drew inferences from the employer's refusal to respond to the discrimination grievance. The employer had continued to cite redundancy as the reason for dismissal when it was clear that confrontation was unavoidable. The tribunal said that the employer was trying to cover up a dismissal tainted by race. The Court of Appeal refused to interfere. They said that giving an entirely false reason for treatment in the face of a discrimination allegation can be a sign that discrimination has taken place. Although the employer's belief in the employee's guilt may have been genuine, the Court of Appeal said it was based on so little evidence or investigation that it had to be down to stereotypical assumptions about black people.
This case shows the danger of putting a false label on any dismissal. If a dismissal is justified, it should be dealt with via the proper channels.
New ACAS guidance on menopause
This once taboo topic has been high profile lately. Half of the population will go through the menopause and yet it has historically been off limits as a discussion topic. Menopause is more important now than ever with older workers expected to stay in work for longer. ACAS have produced some practical guidance on handling menopause in the workplace.
The guidance goes through what menopause is and the potentially debilitating symptoms it can produce for women. It suggests potential adjustments, from providing desk fans and extra rest breaks to being flexible about start and finish times.
Handling menopause symptoms carefully is essential rather than good practice. Menopause symptoms have been accepted as a disability in tribunal proceedings. Handling things badly could also result in age and sex discrimination claims. Managing menopause effectively will help you retain your best talent and reduce recruitment costs.
The main message from the guidance is the importance of openness about the subject and understanding of its effect. Key to this is creating an environment where employees feel confident to raise the subject. A policy is helpful in starting the conversation and educating staff at all levels. Read the guidance here: https://www.acas.org.uk/index.aspx?articleid=6752
Is a dismissal unfair if the employer changes an investigation report following advice from an in-house lawyer? Not in this case, said the Employment Appeal Tribunal in Dronsfield v The University of Reading. The employee was a professor who had a sexual relationship with a student. University rules said he could only be dismissed for immoral, scandalous or disgraceful conduct. The University investigated the allegations and produced a report. An in-house lawyer suggested some changes, including parts which were favourable to the employee.
The employee was dismissed. He brought an unfair dismissal claim which he lost. The employment tribunal said it was fair for the employer to have their lawyers advise the investigative team. The lawyer's advice had been to limit the report's conclusions to whether there was a case to answer and remove 'evaluative opinions' about the employee's conduct. The lawyer said those judgements should be left to the disciplinary panel. The employee appealed.
The EAT upheld his dismissal. The employer was entitled to act on the advice of their solicitor. The changes to the report were considered at the internal appeal stage. The appeals officer had considered the two reports and concluded that no pressure had been put on the investigators to change the report and the changes were not made to make the employee's dismissal more likely. The dismissal was fair.
Although the dismissal was fair in this case, the investigators tripped up initially by making evaluative judgements about the employee's conduct rather than sticking to their job: fact finding and making a recommendation about whether further action (such as a disciplinary hearing) is required. The ACAS guide to conducting workplace investigations might be helpful to anyone conducting an investigation. Find it at: https://m.acas.org.uk/media/4483/Conducting-workplace-investigations/pdf/Conducting_Workplace_Investigations.pdf
Religion and the rights of the LGBTQA+ community have had some high-profile clashes. An employment tribunal has recently considered whether a doctor's religious beliefs 'trump' the right of someone who is transgender to be addressed by their chosen pronoun (he, she, they). Article 9 of the European Convention on Human Rights allows people the right to freedom of thought, conscience and religion. However, this right is limited if necessary, to protect the rights and freedoms of others.