Withdrawing job offers – what is the legal position?

If you make a job offer to someone, then, once it has been accepted (and once any conditions that the offer was subject to have been satisfied), there is a contract between you and the future employee, even if the offer has only been made verbally. Sometimes, particularly with more senior positions, the job offer will be made some months before the person is due to start work with you, as they will usually have to work a period of notice with their existing employer which is likely to be anything from 1 to 6 months. In that time, things within your business can change, and what had seemed like a good recruitment may no longer seem such a good idea.

So, what happens if you change your mind? Well, from the employer’s point of view, the answer is simple – you simply tell the prospective employee that you no longer need them. As there will normally already be a contract in place, you will need to pay them in lieu of the notice that they would have been entitled to on the first day of their employment. This is often quite short, as it is likely that the employee would have been on a probationary period. The normal notice during a probationary period is either 1 week or 1 month. Under the current legislation it could potentially be nil for the first month if that is what the parties have agreed, but this would be unusual and is unlikely to be something prospective employees would want to agree to.

This is one of the reasons why it is a good idea for an employer to provide a copy of the contract of employment to the prospective employee at the time when you make a job offer (or soon after), as it makes the terms clear to both parties. If you have not told an employee about a probationary period, you may find you are liable for more than you expected in terms of notice pay.

From the prospective employee’s point of view the decision may be much more dramatic – and indeed traumatic! They are likely to have resigned from their existing job and be working their notice, they may have sold their house and be in the process of relocating to work for you, and in some cases they may have taken their children out of school and enrolled them in a new school nearer to where they expected to work and live. Their existing employer is not under any obligation to allow them to retract their notice, and indeed may well not be inclined to allow an employee to remain who had wanted to leave their employment. The prospective employee may have spent thousands of pounds on house surveys and other fees in anticipation of relocating, and may also find themselves unemployed.

Fortunately, these types of situations do not occur too frequently, but in reality few employees will probably be aware of the potential risks they take when changing their jobs.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Was HR wrong to influence investigation?

Last September, we reported on the case of Ramphal v Department for Transport in which a manager who investigated and reported on allegations of misconduct against an employee revised his report several times, after involvement from HR. The Employment Appeal Tribunal (EAT) found that there had been an inference of improper influence and emphasised that any input from HR should not go beyond the scope of questions of law, procedure and process. You can find our previous article on this case here.

In the recent case of Dronsfield v University of Reading the EAT again considered the influence of HR on the decision to dismiss an employee.

This case concerned an Associate Professor at the University of Reading, Dr Dronsfield, who was dismissed for gross misconduct for failing to report a sexual relationship he had with one of his students (contrary to University guidance).

A complaint was received from the student’s ex-boyfriend, and another professor was appointed to investigate, along with a member of the HR team. They produced a joint investigation report which was reviewed by the University’s in-house employment solicitor. Following this, a number of redactions were made to the report – the passages in the report which were redacted had been favourable to Dr Dronsfield.

A disciplinary panel was appointed to consider the allegations and, following a hearing, Dr Dronsfield was dismissed. He appealed, but this was rejected and he brought a claim in the Employment Tribunal (ET) for unfair dismissal.

The ET found that Dr Dronsfield had been fairly dismissed. The ET accepted that the final version of the report, which the investigating professor had signed off in good faith, contained his genuine, personal view and findings. The ET found that the advice he had received was not improper or biased.

Dr Dronsfield appealed to the EAT. The EAT noted that a number of findings which were favourable to Dr Dronsfield had been omitted from the investigatory report, following discussions between the investigating professor, the member of the HR team and the in-house lawyer. The ET had not considered whether the investigating professor had changed his opinions or simply removed them from the report, and why. The ET should have considered whether it was reasonable for the University to dismiss Dr Dronsfield, given the redactions from the report.

The case was sent back to the ET to consider the issue unfair dismissal afresh.

In its judgment, the EAT noted with surprise that the investigation report was a joint report between the investigating professor and HR partner. The EAT did not specifically refer to the Ramphal case, however agreed with the principle that an investigating officer should be responsible for his own report. The EAT also commented that it would have been good practice in this case for the student to have been contacted as part of the investigation to see whether she wanted to contribute to it.

This case again highlights the risks for HR practitioners of straying from a supportive role, advising on process and procedures, into influencing the investigator’s decision on culpability.

If you are dealing with a tricky disciplinary or grievance situation and are in doubt, then we can help. Our advice is covered by legal professional privilege, meaning that it would not be included in the evidence if you end up in court or Tribunal (you can find our previous article on privilege here). We have years of experience in advising on all kinds of tricky issues and a quick call to us could help you avoid an expensive claim.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Only genuine job applicants can claim discrimination

Not so long ago, there were quite a few stories about people who regularly brought discrimination claims against unwary employers. Often this was because of some form of discrimination in recruitment – for example, we dealt with one where a job applicant brought an age discrimination claim on the basis of an advert which stated the role “would suit recent school leaver”.

Sometimes the claims were raised in order to highlight the problem to employers, but there were also worrying stories about people (such as the Claimant we came across in our example above) who were making a living by bringing claims against unwary employers, knowing that businesses were likely to settle claims rather than spend time and money defending them. Often the Claimants lived nowhere near the area where the employer was based, and had no relevant experience for the job.

The recent European Court case of Kratzer v R+V Allgemeine Versicherung AG dealt with a similar scenario. The Claimant had applied for a trainee position with the employer, and ironically the requirements for the role included a law degree! The Claimant was a qualified lawyer, and when he was not given an interview for the position he wrote to the company demanding compensation for age discrimination.

When the employer received his letter they offered him an interview for the role, but he declined, saying that his compensation should be sorted out first. He then brought a claim for age discrimination (and when he found out all the successful applicants were women, he also added a claim for sex discrimination).

When the German national courts rejected his claims (on the basis that he had no intention of taking the job) he took his case to the European courts.

The European Court’s conclusion was that someone who is only applying for a job to claim compensation could not be a ‘victim’ needing compensation under European equality legislation. Also, the Claimant could not rely on EU law to obtain undue advantage. It would be for the German courts to decide whether there was abuse in Mr Kratzer’s case, but the European Court felt that on the facts before them, it seemed relatively likely.

This case is good news for any employer who might be the victim of a vexatious claim. The number of claims has of course reduced significantly since the introduction of fees for Employment Tribunal claims and this has also led to a reduction in vexatious claims. Nevertheless, it is helpful to see the courts taking a robust view of cases which attempt to abuse the system.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

The vanishing dismissal

Where an employee is dismissed after a disciplinary procedure, they should have a right to appeal against that decision. This right to appeal is part of the ACAS Code of Practice on Discipline and Grievance, and is also likely to be set out in an employer’s disciplinary procedure or policy. The procedure may permit the employer to substitute an alternative disciplinary sanction at appeal stage, such as demotion or the imposition of a final written warning.

Unless an employee makes it clear that they are seeking some other outcome, when a dismissed employee appeals against their dismissal it is implicit that they are asking their employer to find that the dismissal decision was wrong and to return them to their job. A successful appeal will usually involve paying the employee back-dated pay from the date they were dismissed to the date they start back at work, i.e. putting them in the position as if they had not been dismissed.

This all seems straightforward! However, sometimes things can become a bit more complicated, as shown in the recent case of Folkestone Nursing Home Ltd v Patel which was heard in the Employment Appeal Tribunal (EAT).

In this case, Mr Patel was dismissed for gross misconduct following allegations that he had slept on the job and falsified residents’ records. The decision to dismiss was taken by an external consultant who conducted the disciplinary hearing. Mr Patel appealed against the decision to dismiss. He said he was sleeping during his rest break, and that he had been unable to complete the daily record sheets because of an interruption. After an appeal hearing (which was heard by an external manager of the care home), it was decided that the decision to dismiss Mr Patel should be revoked. A letter was sent to Mr Patel to confirm this decision and said that someone would be in touch to arrange his return to work. However, the letter only referred to revocation of the allegation that Mr Patel had slept on the job, and made no reference to the second allegation about falsifying residents’ records. Mr Patel was not satisfied with this as he felt he was owed a full explanation, and so he did not return to work. He then raised claims in the Employment Tribunal for unfair dismissal.

The Employment Tribunal found that there had been a dismissal. The Employment Judge said that the “revocation” of dismissal in the letter was unclear and left out significant issues.

The care home appealed this decision to the EAT. At this stage, the care home relied on a former EAT case which had similar circumstances (Salmon v (1) Castlebeck Care (Teesdale) Ltd (In Administration) (2) Danshell Healthcare Ltd and others (2014)), in which it had been decided that the employee had succeeded in their appeal, and there had been no need for the outcome of the appeal to have been communicated to the employee for it to be effective.

The EAT agreed with the appeal (referring to the Salmon case above) and found that the decision of the Employment Tribunal was wrong – the appeal letter had made it clear enough that the decision to dismiss had been revoked, even it did not go into enough depth about why this decision had been taken. Therefore, Mr Patel had not been dismissed and his claim for unfair dismissal could not be heard.

As an aside, because his appeal failed usually Mr Patel would have had to pay the fees the care home had to pay in order to raise their appeal in the EAT. However, the EAT decided that Mr Patel would not have to pay the fees because the care home (represented by an external company who they engaged for HR advice) had failed to address the point about whether Mr Patel had been dismissed in preliminary hearings, and also failed to bring the Salmon case to the attention of the Employment Tribunal. As a result, the EAT said the case had been made more complex than it needed to be.

All of this could probably have been avoided had the appeal letter been clearer about why the decision was made to bring Mr Patel back to work. That said, most employees will be unhappy if they have been dismissed, and as such any appeal which changes the original decision made in a disciplinary should be handled carefully.

In this case, the appeal decision completely revoked the disciplinary decision (so Mr Patel would have returned to work with a clean slate). However, where an employer decides to apply an alternative sanction to dismissal on appeal, the nature of the alternative sanction may be such that, while the original dismissal disappears, the employee may then be entitled to treat themselves as constructively dismissed.

Mr Patel has applied for permission to appeal the decision to the Court of Appeal, so there may be more news on this case in the future. We will of course, keep you updated if anything significant comes out of any appeal!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

 

Gender pay reporting delayed

Although employers have known for some time about the forthcoming requirement for employers with 250 or more employees to publish gender pay information, we have been waiting for confirmation of when the new rules would come into effect.

Our previous article on gender pay reporting can be found here.

It had previously been thought that the regulations would be published in summer 2016 and would come into force on 1 October.

However, the Government has now finally confirmed that the proposed regulations have been delayed – the current plan is for them to be laid before Parliament in the autumn, and for them to take effect in April 2017.

The effect of this is that 30 April 2017 is now likely to be the ‘relevant date’ under the gender pay reporting regulations, which will mean that the first gender pay reports would be due by the end of April 2018.

As we covered at our recent series of workshops, the draft regulations do not contain any penalties for non-compliance, or for publishing inaccurate information. The intention seems to be for reputation to be the main motivator for employers to publish their gender pay data and to take steps to narrow their gender pay gap.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Changes to the taxation of termination payments

In 2015 the Government announced a consultation on the future taxation of payments made to employees at the end of their employment, and we reported on this here in our bulletin in July 2015. That consultation has now been completed, and the Government has produced draft legislation which incorporates some, but by no means all, of the original proposals. This draft legislation is itself now the subject of a short consultation, with responses due by 5 October 2016. It is proposed that the new rules will come into effect from April 2018.

The biggest single change in the proposals is the removal of the current position for employees who do not work their notice but are instead paid in lieu of that notice. Currently, if there is a pay in lieu of notice clause (PILON) in the contract, then the whole payment is subject to income tax, as the payment is contractually due to the employee. If there is no PILON, then generally the payment of up to £30,000 in respect of notice can potentially be made without deduction as damages for breach of contract. Under the new rules it is proposed that all payments in lieu of notice will be subject to income tax, irrespective of whether there is a PILON or not. This will obviously make those who have no PILON clause in their contract worse off, but it does at least simplify matters and abolish what has always been a fairly arbitrary distinction.

If these changes are implemented, when an employer makes a genuine termination payment to an employee above and beyond the payment in lieu of notice, they will still potentially be able to make that payment without deduction of income tax, up to a maximum of £30,000 in total. These payments will also be free of National Insurance (NI) contributions up to a limit of £30,000, but, unlike now, any payments over £30,000 will in future attract employer’s NI. However, these payments will not attract employee’s NI, irrespective of the amount.

There are also a couple of minor proposed changes relating to some personal injury payments and for Foreign Service relief, but they are beyond the scope of this update.

We will notify you of any changes which come out of this further period of consultation through future ebulletins.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Training Session – Equal Opportunities & Discrimination

Our half day training course will help you understand the law and practice around equal opportunities and discrimination issues.

This session is aimed at anyone with responsibility for dealing with employee matters in the workplace. Whether you are a manager, business owner or HR professional, we will ensure that we bring you up to date on the law in this area. We will give you a better understanding of the ways in which unlawful discrimination can arise, and give you confidence in dealing with any equal opportunities issues that may arise in your organisation.

The course will be delivered by our team of experienced employment lawyers, and will be run in an interactive round table format. The course will involve a variety of activities, including case studies and some role-play. Delegate numbers are strictly limited to ensure that everyone has the opportunity ask questions, share experiences and gain maximum benefit from the event.

The course will cover all the key points, including:

  • What are the protected characteristics?
  • Direct discrimination
  • Indirect discrimination
  • Victimisation
  • Harassment
  • Dealing with allegations of discrimination
  • Discrimination claims
  • Equal opportunities policies – what should they say?
  • Implementing policies in practice
  • Discrimination in recruitment
  • Employer liability for acts of discrimination and the potential defences
  • Individual liability
  • How to avoid ending up in an Employment Tribunal

(Please note that Equal Pay issues will be outside the scope of this course.)

To book your place, please complete the form on the top right of this page, email us at [email protected] or telephone 01243 836840. Our booking terms and conditions are set out below.

 

Pure Employment Law
Terms and Conditions for Training Courses

How to book

Bookings can be made by completing the online booking form on our website, or by email or telephone. Please email [email protected] or call 01243 836840.

Booking confirmation
Once we have received notification of your booking, we will send you an email with an electronic copy of our invoice. The invoice can be paid by bank transfer or cheque.

Upon receipt of your payment we will email you as confirmation that your place is now guaranteed. Please note that your place is only guaranteed once we have confirmed that payment has been received.

Fees
All Pure Employment Law training courses are subject to VAT at the current rate. Course fees include tuition on the day/days, all relevant course materials, and light refreshments.

Special requirements
Please let us know if you have any special requirements. Pure Employment Law will make every effort to accommodate special requirements (such as accessibility or dietary requirements) that have been notified in advance when a booking is made.

Joining instructions
Joining instructions including outline of the course, venue details, map and local car park details will be issued approximately two to four weeks prior to the course. If you have not received your joining instructions three days prior to the training course, please call 01243 836840. Pure Employment Law will not be held responsible for non-receipt of joining instructions and refunds will not be issued under such circumstances.

Cancelling your place
If you notify Pure Employment Law in writing (via email, letter or fax) no later than 14 days before your course date, you will receive a full refund less an administration fee of £20 per delegate. If you withdraw for whatever reason less than 14 days before the course date, or if you fail to attend the course, the full fee will remain payable.

Cancellation by Pure Employment Law
Where circumstances dictate, Pure Employment Law reserves the right to alter published programmes, trainers, fees or venues without prior notice. In the event of a course being cancelled, a full refund of the course fee will be made but no compensation will be paid for any additional costs incurred.

Dress code
There is no dress code; however, most participants choose to wear smart casual clothing.

Liability
Pure Employment Law does not accept responsibility for anyone acting as a result of information or views expressed on its training courses including course material. Opinions expressed by trainers during the course do not constitute legal advice. Participants should take specific legal advice separately when dealing with specific situations.

Certificates of Attendance

We are happy to provide Certificates of Attendance on request, for delegates’ training records.

Training Session – Disciplinary & Grievance

Join us for this half day session in which we will help you get to grips with how to handle disciplinary and grievance issues.

This session is aimed at anyone with responsibility for dealing with disciplinary and/or grievance matters in the workplace. Whether you are a manager, business owner or HR professional, we will ensure that we bring you up to date on the law in this area, give you a better understanding of the procedural requirements, and give you confidence in dealing with any disciplinary and grievance issues that may arise in your organisation.

The course will be delivered by our team of experienced employment lawyers, and will be run in an interactive round table format. The course will involve a variety of activities, including case studies and some role-play. Delegate numbers are strictly limited to ensure that everyone has the opportunity ask questions, share experiences and gain maximum benefit from the event.

The course will cover all the key points, including:

  • Informal chat or formal disciplinary action?
  • Your organisation’s disciplinary and grievance procedures
  • Dealing with employees with short service
  • The ACAS Code of Practice – why it matters
  • The disciplinary and grievance processes: investigation, hearing, appeal
  • Who undertakes the various stages
  • Investigations
  • The invitation to the hearing and the ‘paper trail’
  • The hearing itself
  • The outcome and communicating it
  • The appeal and communicating the outcome
  • The right to be accompanied
  • How to avoid ending up in an Employment Tribunal!
  • Tricky scenarios that might arise

To book your place, please complete the form on the top right of this page, email us at [email protected] or telephone 01243 836840. Our booking terms and conditions are set out below.

 

Pure Employment Law
Terms and Conditions for Training Courses

How to book

Bookings can be made by completing the online booking form on our website, or by email or telephone. Please email [email protected] or call 01243 836840.

Booking confirmation
Once we have received notification of your booking, we will send you an email with an electronic copy of our invoice. The invoice can be paid by bank transfer or cheque.

Upon receipt of your payment we will email you as confirmation that your place is now guaranteed. Please note that your place is only guaranteed once we have confirmed that payment has been received.

Fees
All Pure Employment Law training courses are subject to VAT at the current rate. Course fees include tuition on the day/days, all relevant course materials, and light refreshments.

Special requirements
Please let us know if you have any special requirements. Pure Employment Law will make every effort to accommodate special requirements (such as accessibility or dietary requirements) that have been notified in advance when a booking is made.

Joining instructions
Joining instructions including outline of the course, venue details, map and local car park details will be issued approximately two to four weeks prior to the course. If you have not received your joining instructions three days prior to the training course, please call 01243 836840. Pure Employment Law will not be held responsible for non-receipt of joining instructions and refunds will not be issued under such circumstances.

Cancelling your place
If you notify Pure Employment Law in writing (via email, letter or fax) no later than 14 days before your course date, you will receive a full refund less an administration fee of £20 per delegate. If you withdraw for whatever reason less than 14 days before the course date, or if you fail to attend the course, the full fee will remain payable.

Cancellation by Pure Employment Law
Where circumstances dictate, Pure Employment Law reserves the right to alter published programmes, trainers, fees or venues without prior notice. In the event of a course being cancelled, a full refund of the course fee will be made but no compensation will be paid for any additional costs incurred.

Dress code
There is no dress code; however, most participants choose to wear smart casual clothing.

Liability
Pure Employment Law does not accept responsibility for anyone acting as a result of information or views expressed on its training courses including course material. Opinions expressed by trainers during the course do not constitute legal advice. Participants should take specific legal advice separately when dealing with specific situations.

Certificates of Attendance

We are happy to provide Certificates of Attendance on request, for delegates’ training records.

Whistleblowing revisited

Protection for whistleblowers under the Public Interest Disclosure Act 1998 is being applied in ever wider circumstances (see our previous articles here and here). At our recent Employment Law Update workshops, we discussed employers’ concerns around potential whistleblowing claims, given that there is no minimum length of service required for an employee to bring a whistleblowing claim, and no cap on the amount of compensation that the Employment Tribunal can award if the employee’s claim is successful.

In this article, we will consider the implications for employers of a recent whistleblowing case (Royal Mail Group Ltd v Jhuti). This case involved a Royal Mail employee, Ms Jhuti, who ‘blew the whistle’ by making disclosures about suspected breaches of both the Royal Mail’s rules and Ofcom’s rules.

Ms Jhuti had emailed her manager about her concerns and met with him to discuss them. Her manager, however, suggested that Ms Jhuti should admit that she had made a mistake, and write a retracting email, which she did.

Following the meeting with her manager, Ms Jhuti was required to attend very time consuming weekly meetings with him to monitor her progress, and he gave her an “ever changing unattainable list of requirements”. Ms Jhuti’s manager told HR that they would need to look at ‘exiting’ Ms Jhuti if she did not improve, and he also put her on a performance plan.

Ms Jhuti complained to HR that she was being harassed and bullied as a result of her disclosures, and she was signed off sick by her GP. The Royal Mail offered her a termination package, which she rejected.

A senior member of staff, Ms Vickers, was appointed to review Ms Jhuti’s position. Ms Vickers did not see any of Ms Jhuti’s emails about her disclosures, but did speak to Ms Jhuti’s manager who told her that Ms Jhuti had misunderstood the situation and he showed her a copy of Ms Jhuti’s retracting email. Ms Vickers made the decision to dismiss Ms Jhuti on the grounds of poor performance.

Ms Jhuti’s appeal against her dismissal was rejected and she brought a claim in the Employment Tribunal, arguing that she had been automatically unfairly dismissed because she had ‘blown the whistle’.

The Employment Tribunal noted that it was strange that Ms Jhuti had been offered a year’s pay to leave, when she did not have sufficient service to bring a claim for unfair dismissal, she was considered a poor performer and had yet to pass her probationary period. The Employment Tribunal found it more likely that the management were concerned about the issues she had raised.

The Employment Tribunal found that Ms Jhuti had been bullied and harassed by her team leader because she had ‘blown the whistle’, but, Ms Vickers had genuinely believed she was dismissing Ms Jhuti on the grounds of poor performance and had not seen the details of Ms Jhuti’s disclosures. (It was not clear why Ms Vickers had not seen Ms Jhuti’s emails to HR).

Ms Jhuti appealed to the Employment Appeal Tribunal (EAT). The EAT held that even where the person making the decision was not aware of the true facts, the decision can be attributed to the employer if the decision maker is manipulated by someone in a managerial position, who is responsible for the employee, and who does know the true facts. The EAT found that Ms Jhuti’s manager had lied to Ms Vickers and withheld Ms Jhuti’s emails outlining her concerns.

The EAT held that Ms Jhuti’s manager’s motivations should be taken into account because he had lied to and misled Ms Vickers, and, once his motivation was taken into account, it was inevitable that Ms Jhuti would be dismissed and she was dismissed on the grounds of the protected disclosures she made to her manager.

It may seem harsh that an employer can be found to have automatically unfairly dismissed an employee for whistleblowing, where the person who made the decision to dismiss did so based on other reasons and where another employee had been withholding information and misleading the decision maker, as Ms Jhuti’s manager did in this case. However, Ms Jhuti had raised her concerns with HR and it was not clear why, in this case, that information was not shared with Ms Vickers.

Whilst this case did not deal with a situation where the person manipulating the decision maker is not in a managerial position and responsible for the employee, it does highlight the importance of dealing with potential whistleblowing issues appropriately, regardless of an employee’s length of service, and ensuring that whistleblowing policies are robust.

We can help with creating or updating a whistleblowing policy, as well as advising on any particular situation. Please contact any member of the Pure Employment Law team for assistance (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Post-Brexit discrimination

While the long-term employment law implications of the UK voting to leave the EU are still far from clear, we have identified a way in which Brexit is already directly affecting workplace relations even while we are still EU members. In particular, we have had a number of queries from employer clients where employees have complained of less favourable treatment by managers or colleagues based on the way they voted.

The referendum certainly gave rise to some strong feelings around the country, and it is perhaps inevitable that some of those feelings will carry over from people’s private life into the workplace. However, while most employees tend to be aware that they should avoid comments which are discriminatory on the grounds of protected characteristics such as gender, race, age or disability, many of them do not seem to be aware that political beliefs may also be protected in a similar way.

The reason why the protection is likely to apply is because it falls within the protected characteristic “religion or other belief” (section 10, Equality Act 2010). ‘Belief’ for this purpose is defined in the Act as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”

Although when the Equality Act was first introduced, the Government stated that it was not intended to cover political beliefs, the case law has developed since. The lead case was Grainger v Nicholson (2009) in which a belief in climate change was found to be capable of meeting the definition. The Employment Appeal Tribunal specifically stated in Grainger that political beliefs were capable of protection, provided they were “worthy of respect in a democratic society.”

Since Grainger there have been a number of cases involving political beliefs. In particular there was the case of Redfearn (2013), where an employee who was dismissed for becoming a BNP candidate took his case to the European Court of Human Rights (ECHR). The ECHR decided that UK law was not compatible with Mr Redfearn’s right to freedom of association, and that he should be entitled to protection on the grounds of his political beliefs. (Our article on the Redfearn case can be found here). There was also a Tribunal level decision in the case of Olivier v DWP (2013) where a belief in democratic socialism (as held by a Labour party activist) was capable of protection, as we covered in our previous article here.

In the case of either Vote Leave or Vote Remain supporters, based on the current law it is likely that their opinions would qualify as an ‘other belief’ within the Equality Act. This means that they are protected against discrimination, harassment and victimisation on the basis of those opinions. For example, anecdotally there have been reports of those who voted Leave being referred to as racist, because of the campaign’s focus on immigration. If comments of that nature were made in the workplace then it could potentially lead to a harassment claim.

Employers will be vicariously liable for any harassment carried out by any employee on another employee unless they can show that they have taken all reasonable steps to prevent the harassment (see our previous article on vicarious liability here). Reasonable steps would depend on the circumstances and the size of the organisation, but could include reminding staff about the equal opportunities policy and potentially offering training.

The referendum result is a significant development for the UK, and it is understandable that colleagues at work may want to discuss the implications. It would be impossible for employers to prevent any such discussions from happening in the first place, but it is important that differing views are respected.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

 

 

 

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

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