What is ‘off the record’?
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.
In Mackareth v DWP, the employee was a Christian and a doctor. He believed that God creates people as men or women and opposed transgenderism. He believed that it would be irresponsible for a doctor to accommodate or encourage transgenderism. He was recruited by the DWP to be a Health and Disabilities Assessor. When he refused to agree to the DWP’s rules regarding respect for transgender service users’ desired pronouns, he was dismissed. He brought claims for discrimination based on his Christian religion and beliefs.
The employment tribunal said his Christianity was protected by the Equality Act 2010. However, his beliefs in relation to transgenderism were not protected because they were incompatible with human dignity and conflicted with the fundamental rights of transgender people. The tribunal also said that refusing to address someone by their preferred pronouns would be discriminatory under the Equality Act 2010. Anyone who refused to do this would have been treated in the same way by the employer, regardless of their beliefs.
The doctor has said he will appeal the decision. The employment judge in this case accepted that the employee did not want to offend people, though he knew that his views would have that effect. This case shows the difficulties that can arise in balancing the rights of different employees. A robust equal opportunities policy is a good starting point for employers.
Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases. The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business’s confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.
The guidance discourages the habitual use of gagging clauses when settling discrimination claims. It suggests they are only used in specific circumstances such as a case where a worker does not want the details of their discrimination case to become public. The guidance also advises employers to tailor the clause to the individual case rather than using a standard template. The guidance also suggests that employers might still need to investigate claims which are settled to show they have taken steps to prevent discrimination in the workplace.
The aim of the guidance is to ensure that discrimination in the workplace is rooted out. Employers should create an environment where employees feel they can speak out against discrimination and know that they will be supported. If people know they can raise issues, which will be taken seriously, gagging clauses are unlikely to be needed.
Philosophical belief discrimination
The Court of Appeal has considered whether it was discriminatory on the grounds of belief to dismiss an employee for asserting her right to own the copyright in her own creative works. In Gray v Mulberry, the employee refused to sign a standard contract assigning copyright in the work she produced whilst employed to Mulberry. She was scared that it would give them ownership of other written work she produced in her spare time. The contract was changed to exclude the written work, but she still refused to sign it and was dismissed.
The employee claimed that her belief in ‘the statutory human or moral right to own the copyright and moral rights of her own creative works and output [unless made for the employer’s benefit]’ was a philosophical belief and protected under the Equality Act 2010. She said her dismissal for this belief was discriminatory.
To qualify as a philosophical belief, a belief must attain a certain level of cogency, seriousness and importance. The belief must be similar in status to a religious belief.The employment tribunal said the belief in this case lacked the cogency needed to qualify as a belief. The Employment Appeal Tribunal confirmed that the tribunal had not set the bar too high when making its decision. The Court of Appeal came to the same decision, on slightly different grounds. They said there was no connection between the employee’s stated belief and her dismissal. She had refused to sign the contract, and was dismissed, because she felt the wording did not properly protect her own interests. The Court of Appeal said a debate or dispute about the wording of a contract could not be a philosophical belief.
It is comforting to employers that businesses can legitimately take steps to protect their business interests. This case is another example of an employee without enough continuous service to claim unfair dismissal having to be ‘creative’ in seeking redress. Unfortunately for her, her ‘belief’ was not creative enough. Employers should always respect and try to accommodate employees whose religion or similar beliefs do genuinely impact on work.
Confidential advice between lawyer and client cannot be used in court proceedings unless the document is created for a fraudulent or criminal purpose. The Court of Appeal has looked at how this principle works in Curless v Shell.
The employee was a lawyer for Shell who had diabetes and sleep apnoea. He brought a discrimination grievance and was later dismissed as part of a reorganisation and redundancy process. He brought tribunal proceedings based in part on a leaked email to Shell from its lawyers which referred to the pros and cons of dismissing ‘an individual’ as part of the restructure process. The employee said the individual was him. He said the letter wasn’t privileged because it referred to hiding a discriminatory dismissal in a redundancy exercise.
The employment tribunal said the email was privileged. Referring to potential discrimination was not enough to disapply legal privilege. The Employment Appeal Tribunal disagreed. They said the letter referred to cloaking a discriminatory dismissal in redundancy to avoid more discrimination complaints. The Court of Appeal reversed the decision again. The kind of advice the letter contained – how and whether to include someone with an ongoing discrimination claim in a wider redundancy process – was the sort of advice given day in day out by lawyers. It was not part of a dishonest plan and could not be used as evidence in tribunal proceedings.
It is interesting in this case how the courts read the email differently. The EAT saw an attempt to cover up a discriminatory dismissal whereas the Court of Appeal saw normal everyday advice rather than any dishonest plan. This case confirms that the privilege rules will rarely be lifted. This is based on public policy that clients need to be confident about seeking legal advice in tricky circumstances without the threat of it being used against them in future.
Third party harassment
Third party harassment can happen in the workplace when someone other than the employer harasses the employee. This might include patients, customers or visitors. The Employment Appeal Tribunal has recently looked at whether an employer will be responsible for third party harassment.
In Bessong v Pennine Care, the employee was a nurse. He was assaulted and injured by a patient who shouted racist abuse at the same time. The employer called the police but didn’t mention the racial element. The employee brought various claims against the employer, including one for racial harassment based on the attack. The employment tribunal dismissed the harassment claim. They found that the Trust had failed to create a culture where racist incidents were reported, making racial harassment from patients more likely. Although this was unwanted conduct by the employer, it was not conduct related to race. The employee’s harassment claim failed.
The Employment Appeal Tribunal agreed. The employer’s actions (or failure to act) had to relate to race (or another protected characteristic) for the employer to be liable. In this case, the employer’s failure to take adequate steps to prevent racial harassment at work was not due to race.
A government consultation has taken place recently on whether to introduce new third-party harassment provisions into the Equality Act 2010. Calls for this change have come from the Equality and Human Rights Commission and the Women and Equalities Select Committee. We are still waiting for the outcome of this consultation so watch this space. Also look out for the employee’s appeal in this case.
We all find it difficult to switch off from technology. Work email being accessible on phones has blurred the lines between home and the office. Companies worried about these blurred lines are taking steps to stop employees from working outside work hours. Volkswagen has set up systems so that emails can only be sent to employees’ phones from half an hour before the working day starts and for half an hour after it ends, and never at weekends. Lidl in Belgium has also banned internal emails between 6pm and 7am to help staff switch off.
Could this method of trying to protect your employees cause them more harm than good? The University of Sussex has done research which suggests a blanket ban might help some staff to switch off but might result in other employees not achieving their goals and causing stress.
A better plan might be to allow people to deal with email in a way which suits their personalities and allows them to feel like they are managing their workload. Some people might appreciate, or need, flexible working patterns that necessitate some work outside normal hours. The key for employers is to ensure they have a policy that sets out clear parameters for working outside normal hours. Employees need to know that it is a genuine choice, rather than a compulsion.