Whistleblowing while you work

Last July, we reported on the case of Ms Jhuti v Royal Mail. Ms Jhuti ‘blew the whistle’ to her line manager by making disclosures about suspected breaches of the Royal Mail’s rules and Ofcom’s rules. Ms Jhuti’s line manager put her on a performance plan and told HR they would need to look at ‘exiting’ her. Ms Jhuti was dismissed, however the manager who dismissed her was not aware of Ms Jhuti’s whistleblowing.

The dismissal of an employee is automatically unfair if the reason (or principal reason) for their dismissal is that they have made a protected disclosure, i.e. they have ‘blown the whistle’. As we have previously reported, whistleblowing claims should be of concern to employers, because there is no minimum length of service required for an employee or worker to bring such a claim, nor any cap on the compensation that can be awarded – in contrast to ordinary unfair dismissal claims, which require 103 weeks’ service and where the maximum compensatory award is capped.

The Employment Tribunal found that the manager who made the decision to dismiss Ms Jhuti had genuinely believed she was dismissing her on the grounds of poor performance. The manager’s decision was not motivated by Ms Jhuti’s whistleblowing (nor was it based on the line manager’s motivation), therefore Ms Jhuti was not automatically unfairly dismissed for whistleblowing.

When the case went to the Employment Appeal Tribunal however, it was held that the dismissal was automatically unfair because even where the person making the decision was not aware of the true facts, the decision could 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.

Royal Mail’s appeal against the EAT’s decision was recently heard by the Court of Appeal, who had to decide if Ms Jhuti could be automatically unfairly dismissed by a manager who was not aware of the protected disclosures she had made to another manager.

The Court of Appeal decided that the dismissal had been fair. It was only what the decision-maker actually knew that was key, not what knowledge should be attributed to them.

The judgment set out four different scenarios of ‘manipulation’ cases, only two of which the Court considered could lead to the manipulator’s motivation being attributed to the employer. First, in cases where the decision-maker is manipulated by a manager who has some responsibility for the investigation, it is possible that the motivation and knowledge of the manager could be attributed to the decision-maker, even if the decision-maker does not share the motivation or knowledge. Second, in a situation where the manipulator is at a very senior level (e.g. the CEO), and deliberately manipulates the evidence, their motivation could be attributed to the employer.

In the other two scenarios which the Court described, the manipulator’s motivation could not be attributed to the employer – cases where the manipulator misleads the decision-maker, but has no responsibility for the employee, and situations (like the Jhuti case) where the manipulator does not have responsibility for the dismissal.

Whilst this is a welcome decision for employers, they should still be alert to situations where manipulation by an employee could be attributed to the employer. Even if an employee in such a case could not succeed in a claim for automatic unfair dismissal against the employer, they could potentially bring a claim on the basis that they have been subjected to a detriment, by a fellow employee, for blowing the whistle – and the employer could be found liable. Although, in detriment cases there is a potential defence if the employer can show that they took all reasonable steps to prevent the detrimental treatment.

Our advice is to make sure your whistleblowing and disciplinary procedures are up to date, and that your managers are properly trained on them – we can assist with both, just get in touch.

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 enquiries@pureemploymentlaw.co.uk).

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.

Burden of proof – already back to the way it was!

As employment lawyers, we are very used to keeping up to date with ever-changing case law. However even so, it is still fairly unusual for me to need to write an article in December about the reversal of a decision I wrote about only in August! My August article is here and was about the case of Efobi v Royal Mail, where the Employment Appeal Tribunal’s decision reversed the long-established position about the burden of proof in discrimination cases (which some had described as ‘guilty until proven innocent’ for employers).

Employers will be relieved to hear that the Court of Appeal (in the case of Ayodele v Citylink (2017)) has now concluded that the Efobi case was wrongly decided and therefore the burden of proof rules should revert to how they had been interpreted previously.

In Ayodele, Court of Appeal found that (as had been previously thought) under the Equality Act generally the burden of proof is on the Claimant to establish a basic case, and if that basic case is established, the burden of proof moves to the Respondent to disprove discrimination. However, the judgment did emphasise that a flexible approach is needed, so rigid adherence to burden of proof rules may not necessarily be appropriate. In many discrimination cases, the burden of proof will not be a significant factor, and it is important for it not to be the sole focus.

Before the Ayodele judgment was issued, an appeal had been made in the Efobi case. However, given the Court of Appeal’s ruling, it is not clear what will happen about that appeal now. We will of course keep you informed about any further developments.

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 enquiries@pureemploymentlaw.co.uk).

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.

Headphone wearing employee largely to blame for his own unfair dismissal

If an employee’s behaviour is such that the ordinary man in the street would say that they deserved to lose their job, would their dismissal be fair in law? Not necessarily. Employment law has developed a vast array of legislation and case law by which the question of whether a person was unfairly dismissed is decided, and the fact that the dismissed employee was largely, or even completely, to blame for their downfall may not be the determining factor.

This was illustrated in the recent Employment Tribunal decision of Onyike v Sainsbury’s (2017). Mr Onyike worked as an assistant in the delivery yard of the Wandsworth store. This area was frequented by articulated lorries and other goods vehicles delivering produce to the store and was an acknowledged high risk area. Everyone entering the area was required to wear high-vis jackets, and there were prominent safety notices warning employees of the need for them to be aware of vehicles entering and manoeuvring in the yard. Sainsbury’s Health and Safety procedures were also set out in the company handbook and made it clear that a failure to follow the procedures was likely to be treated as gross misconduct.

Mr Onyike was seen by the store manager wearing headphones whilst working in the yard. The manager said that he told Mr Onyike to remove them; Mr Onyike said that he simply signalled for him to take them off. A few days later a deputy manager saw Mr Onyike again wearing headphones and confronted him. Mr Onyike said that the headphones were turned off. The next day My Onyike was summoned to a meeting to investigate the allegation that he had failed to follow the company’s Health and Safety procedures. He admitted that he had been wearing the headphones, but again said that they were not playing any music.

The matter proceeded to a disciplinary hearing. Mr Onyike said that wearing headphones was not a breach, and that he was wearing a high-vis jacket, so drivers would be able to see him. He maintained that he could hear, even when wearing headphones, and also acknowledged that he had been told by the manager and the deputy manager not to wear them. Sainsbury’s took the view that this was a serious breach of health and safety and ultimately dismissed him for gross misconduct. Mr Onyike appealed, and his appeal was unsuccessful.

He then brought claims for unfair dismissal and wrongful dismissal in the Employment Tribunal. The Tribunal found that it was reasonable for Sainsbury’s to take the view that Mr Onyike’s hearing would be impaired by him wearing headphones, whether or not they were on, and that it was perfectly justified in treating the matter as being very serious. However, it also found that Sainsbury’s had not expressly stated that wearing headphones was a breach of their Health and Safety procedure, and therefore the dismissal was unfair. However, the Tribunal also found that Mr Onyike was 80% to blame for his dismissal, and reduced his compensation by 80% due to his contributory fault.

Tribunals do have the power to reduce compensation because of the employee’s contributory fault. In my experience an 80% reduction is relatively uncommon, but it certainly something which employers should argue in appropriate circumstances. In one case, I have managed to get compensation reduced by 100% because of the contributory fault of the employee – but I have argued for that on several other occasions and only achieved a lesser reduction.

This case is Employment Tribunal level only, and therefore not binding on other Tribunals, and in any event contributory fault is inevitably something that has to be considered on its own facts. Nevertheless, this case is a useful example of how contribution can still be a highly relevant factor.

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 enquiries@pureemploymentlaw.co.uk).

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.

A (data) chain is only as strong as its weakest link

One of the data protection principles under the Data Protection Act 1998 (“DPA”), states that data controllers must take “appropriate technical and organisational measures…against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, and damage to, personal data.”

What happens when a data controller does not take appropriate measures? We recently found out in a case heard in the High Court (Various Claimants v WM Morrison Supermarkets plc (2017)).

The case involved a Morrisons employee who was a senior internal IT auditor. He had access to payroll data, and decided to publish that data on a file sharing website. The file contained the personal details of around 100,000 employees. He did this because he was aggrieved at disciplinary action that had been taken against him. The employee was convicted of offences under the Computer Misuse Act 1990 and the DPA, and received a sentence of 8 years in prison.

A group of just over 5,500 employees of Morrisons then sought to claim compensation for breach of statutory duty under the DPA, as well as for breach of confidence and misuse of private information.

The High Court dismissed the claims that there had been a breach of the DPA, but held Morrisons as vicariously liable for the employee’s conduct (for an explanation of the concept of vicarious liability, see our previous article here). The judge felt that there was sufficient connection for the employee to have taken such action in “the course of his employment”, even though Morrisons would not have authorised the publication of the data on a file sharing website. The judge cited various reasons for coming to this conclusion, including that Morrisons had entrusted the employee with the payroll data, that he was employed on the basis that he would receive confidential information and be required to disclose such information to a third party (an external auditor) as part of his job, and that Morrisons took the risk that it might be wrong in placing its trust in him. The fact that the disclosures were made much later, from the employee’s home, outside working hours and using his own personal computer did not “break the connection” with his employment.

The decision will allow the 5,500 employees to claim compensation.

This is quite an alarming decision for employers – the High Court acknowledged that there is no failsafe system for entrusting individuals to handle such data, and that there will sometimes be (hopefully rare) circumstances where rogue employees will set out to deliberately cause damage to their employer by disclosing data. Despite this, it went on to find Morrisons liable. The High Court may have been mindful that without such a decision, the employees affected were unlikely to be able to get compensation from anyone else (Morrisons having the deepest pockets, and insurance!).

For employers, the message here really is to ensure that your insurance policies will cover such claims, to follow any requirements of your insurance policy and also to do whatever you reasonably can to protect the security of data you hold about employees.

The High Court have granted Morrisons permission to appeal the decision, and they have indicated that an appeal is very likely. We will keep you informed of any developments.

Do also bear in mind that the DPA is set to change in May 2018 in line with the forthcoming EU General Data Protection Regulation (GDPR) – for more information on GDPR, please see out previous article here.

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 enquiries@pureemploymentlaw.co.uk).

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.

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