Articles | Employment bulletin January 2016

This month we look at gross misconduct dismissals, discriminatory references, sanctions for sickness absence and staff speaking foreign languages.

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David Clay

David Clay

Dismissing for gross misconduct?

Stay focused on the key charges

Dismissing for gross misconduct?

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When an employee commits a deliberate and wilful breach of a fundamental term of their contract of employment, an employer may dismiss them summarily for gross misconduct.  Determining what amounts to gross misconduct is not always clear cut, and it is a decision employers must reach based on a considered assessment of the facts.

In a recent High Court case Mr Farnan, a Marketing Director for Sunderland Football Club, was invited to a disciplinary hearing following a trawl of his work emails.  The Club’s investigations resulted in 28 allegations of misconduct, ranging from sending an inappropriate Christmas e-card from his work email account depicting ten women with their breasts exposed to disclosing confidential information about the Club’s sponsorship arrangements.  Mr Farnan was summarily dismissed and subsequently brought a claim for wrongful dismissal in the High Court.

The Court found that Mr Farnan had committed serious and repeated breaches of his contract with the Club which justified his summary dismissal.  These included his use of confidential Club documents to support his application for a new job and his disclosure of confidential information concerning sponsorship deals to a journalist.

However, the sending of the Christmas e-card did not amount to a breach of contract.  The Court felt the card was not indecent or obscene, and took into account the Club’s relaxed attitude to similar incidents in the past.  The Court also criticised the Club for the large number of insignificant or trivial charges brought against Mr Farnan and accepted that, to an extent, the Club had “trumped up” the case against him.

The decision confirms that misuse of confidential information can amount to gross misconduct, but the Court’s comments about trivial charges show that employers can best serve their own interests by focusing on the most serious misconduct at disciplinary hearings.  Where there is an abundance of evidence available, drawing attention to minor indiscretions is unlikely to strengthen an employer’s position, and could undermine it.

Discriminatory References

The dangers of going ‘off script’

 

Discriminatory References

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When an employer provides a reference for a former or departing employee, it must take reasonable care to ensure that its reference is true, accurate and fair, and does not give a misleading impression.  Where references drift into discussions of sickness absence, there is a risk of a discrimination claim if those absences are linked to a disability.  A recent case in the Employment Appeal Tribunal (EAT) highlights the dangers.

In March 2013 Ms Pnaiser, a disabled woman, was made redundant from her job at Coventry City Council.  On leaving she signed a settlement agreement which included an agreed reference from her manager, Ms Tennant.  Thereafter she was offered a job with NHS England, subject to receipt of satisfactory references.  Although she provided the agreed reference, Ms Tennant later disclosed in telephone discussions that Ms Pnaiser had taken significant time off work and indicated she was not suitable for the NHS role.  NHS England withdrew Ms Pnaiser’s job offer and Ms Pnaiser brought a claim for discrimination arising from disability.

The EAT was satisfied that, in the absence of any other explanation, Ms Tennant’s negative reference amounted to unfavourable treatment arising at least in part because of Ms Pnaiser’s sickness absences, which in turn were a result of her disability.  This shifted the burden of proof, and neither the Council nor the NHS was able to provide an alternative explanation for Ms Pnaiser’s treatment or in any way justify its actions.  Accordingly, Ms Pnaiser’s claim succeeded.

The case shows the difficulties that can arise where employers become involved in discussions about the absence record of a former employee.  To reduce the risks associated with references, employers should consider adopting a policy of limiting the information provided to confirmation of an employee’s job title and dates of employment only.  It is also advisable to include a disclaimer denying liability for losses incurred in reliance on a reference, particularly where the reference is more expansive.  Employers in receipt of a negative reference should carefully consider whether it could be discriminatory and seek legal advice on their options.

Sanctions for sickness absence

Do you have to make adjustments for disabled employees?

Sanctions for sickness absence

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An employer must make reasonable adjustments where its practices, policies or procedures put a disabled employee at a substantial disadvantage when compared with persons who do not share that disability.  The Court of Appeal has recently considered the impact of this duty on an employer’s implementation of disciplinary sanctions for extensive sickness absence.

The case in question centred on Ms Griffiths, an Administrative Officer with 35 years’ service for the Department of Work and Pensions (DWP) who had been absent from work for 66 days, of which all but four were due to disability.  The DWP’s Attendance Management Policy stipulated that formal action would be taken once employees reached 8 days’ absence in a 12 month period.

Although the policy included the flexibility to take into account disabilities and adjust the level of absence that would trigger formal proceedings, this option was not exercised for Ms Griffiths and she received a formal written warning.  Ms Griffiths brought a claim for failure to make reasonable adjustments, arguing that it would have been reasonable for the DWP to either revoke her warning or extend the relevant absence period to 20 days.

The Court held that the requirement to maintain a certain level of attendance in order to avoid receiving disciplinary sanctions placed Ms Griffiths at a substantial disadvantage.  It also confirmed that the duty to make reasonable adjustments does apply to the trigger points at which disciplinary sanctions for absence are applied.  However, the Court ultimately concluded that the adjustments sought by Ms Griffiths were not reasonable in the circumstances, due to the likelihood of further lengthy periods of absence and the low probability that the adjustments sought would remove the disadvantage.

This decision provides useful guidance for employers on their obligations when it comes to making reasonable adjustments for absent disabled employees.  However, employers should note that (although not pursued by Ms Griffiths) a warning or dismissal for absence could also give rise to claims for discrimination arising from disability.  Accordingly, before imposing a sanction in these circumstances, employers must be satisfied both that all reasonable adjustments (if any) have been made and that the sanction imposed can be objectively justified.

When staff speak foreign languages at work…

…can you tell them to stop?

Foreign languages

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An employer directly discriminates if it treats an employee less favourably than it treats or would treat others because of that employee’s race.  Case law has established that race includes nationality, and that language is an intrinsic part of nationality.  In light of this, ACAS guidance recommends that employers should be wary of prohibiting or limiting the use of non-English languages at work unless there is a genuine business reason for doing so.  A recent case in the Employment Appeal Tribunal (EAT) sheds further light on this issue.

The claimant in the case was Mrs Kelly, a Russian employee of Covance Laboratories. Covance carries out animal testing and has a history of activists assaulting its employees and infiltrating its business to gain information.  Mrs Kelly often held long conversations in Russian on her mobile phone in the office toilets.  Covance found this behaviour suspicious, especially for a new employee, and feared that she may be an activist.  She was asked not to speak Russian so that her English-speaking managers could understand her conversations.  Mrs Kelly later resigned and brought claims including direct race discrimination.

The EAT held there had been no discrimination.  It found that the instruction not to speak Russian was because of Mrs Kelly’s suspicious behaviour and was not related to her nationality.  In reaching its decision it took into account the specific security issues that Covance faced and the fact that it had given the same instruction to other Russian-speaking staff.  The EAT was satisfied that Covance would have taken the same approach with any non-English speaking employee in similar circumstances.

Although Covance’s circumstances are atypical, the case shows that bans or limits on speaking foreign languages in the workplace are not necessarily discriminatory.  Employers who feel they have a good business reason to insist that staff speak English should consider introducing a policy, which can be objectively justified, requiring the use of English.  Simply dealing with isolated incidents as they arise increases the risks of inconsistent treatment and complaints of direct race discrimination, which are harder to defeat as the objective justification defence is not available.