News & Insights

Employment bulletin March 2013

Every month the employment group considers the latest employment issues that affect both employers and employees.

Breakfast briefing 19 March 2013

Louise Smyth will discuss topical issues surrounding managing employee underperformance and invite you to share your war stories/successful experiences.

Venue: At our offices: 1 London Street, Reading RG1 4PN

Date: Tuesday 19 March 2013

Time: 8am for an 8.30am start. We will finish at 9.30am

Reply: If you would like to attend please send an email to Sarah Walker.

BBC Head of HR blew the whistle on his boss

The Telegraph reported last week on Byron Myers’s claim against the BBC after he blew the whistle on the CEO, Mark Thomas, who allegedly said that mothers were “not suited to working for a commercial company” and that they were “less focused on the job”. Mr Myers claims that a cover-up followed. The BBC is apparently vigorously contesting the claim.

Coincidentally the Government has said that it will be changing the whistle-blowing laws:

  • to remove the current requirement that employees must act in good faith when blowing the whistle (while giving the tribunal the power to reduce compensation in such situations); and
  • to introduce protection for the whistle-blower from bullying or harassment by co-workers by making the employer responsible for the co-workers’ actions (subject to a defence that the employer took all reasonable steps to prevent such behaviour).

If these changes are brought into force it will be interesting to see how tribunals interpret “bullying” as in many cases (including allegedly that of Mr Myers) the whistle-blower is put under pressure by senior management to withdraw his/her complaint or agree that it is mistaken.

Another recent whistle-blowing case resolved the question as to whether ex-employees are protected from detriment when they blow the whistle after their employment has ended. Answer: yes. As the detriment (in this case an investigation by the Solicitors Regulatory Authority into allegations of forgery and dishonesty) can occur after the employment has ended there is no reason why the protection cannot apply to ex-employees. Therefore, if an ex-employee alleges wrongdoing after his/her employment has ended, the employer needs to make sure that it doesn’t treat the ex-employee negatively as a result of those allegations. Don’t think that a compromise agreement will prevent an ex-employee from blowing the whistle – any confidentiality clause that seeks to prevent whistle-blowing is void for that purpose. The same applies to clauses which seek to prevent ex-employees from making derogatory comments after their employment has ended. The validity or otherwise of such clauses may be an issue raised in the case of Gary Walker, the former Chief Executive of United Lincolnshire Hospital Trust, who said (after he had signed a compromise agreement) in a BBC interview that he was dismissed for raising concerns about patient safety.

Managing disabled employees’ absences

Employers are required to make reasonable adjustments to help disabled employees in the workplace. The type of adjustment depends on the employee’s disability and what would help him/her. In a recent case an NHS Trust rigorously applied its short-term absence policy to an employee who was frequently absent from work due to angina and a stress-related psychiatric condition. His condition meant that he had frequent short-term absences for stress. He argued that the Trust should have adapted the policy by changing the targets or redeploying him. In this case, the Tribunal accepted that these suggestions were not reasonable. However it is very important to appreciate that disapplying or adapting an absence policy could be a reasonable adjustment in different circumstances.

Religious belief in the workplace

Last month we reported on the decisions of the European Court of Human Rights’ in the joined cases involving religious conscience. The Equality and Human Rights Commission has acted promptly in issuing guidance to help employers and this includes a selection of likely requests and suggested responses taken from the facts of various cases. Follow this link to the guidance:

Religion or Belief – new guidance February 2013

Unfair dismissal

If a customer tells an employer that one of its employees is not allowed back onto the customer’s site or must be taken off the team providing services to the customer, can the employer take these instructions at face value and use them as a reason to dismiss the employee if there isn’t other work available for the employee? No, a recent case has confirmed that the employer must consider if the employee has suffered an injustice and if so what it can do to reduce the effect of that injustice. So if the customer’s instruction is, for example, unfair or discriminatory the employer should challenge it and seek to persuade the customer to change its mind. In this case, the employer took no such action as it believed that the customer would be most unlikely to change its mind. Employers should be aware that their duty in such cases includes taking steps throughout the employment to resolve a problem between their employee and the customer rather than sitting back and waiting until it’s too late; this is particularly relevant in cases of difficult personal relationships between an employee and an individual at the customer.

Redundancy and TUPE consultation

Employers are required to give elected employee representatives particular information in large-scale redundancy scenarios and before a TUPE transfer. Since October 2011, that information has to include information about the number of agency workers working for the employer, the part of the business in which they work and the type of work they do. A recent case has illustrated how costly it can be for employers to omit information about agency workers even where they have otherwise complied with the consultation obligations. The facts of the case dated from November 2011 at which time the employer did not realise that the law had changed and that it needed to provide information about agency workers. Some information about agency workers was provided by the employer (ie the number of agency workers and some information about the part of the business in which they worked) and eventually full information in a meaningful format was made available. The Tribunal made awards of between 40 and 60 days’ pay on the basis that the missing information about the type of work undertaken by the agency workers was easy to produce and the employer knew the union wanted this information for the consultation process. This is a good reminder that awards for failure to consult are punitive not compensatory and when calculating them tribunals start from the maximum 90 day award.


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