Individuals can be personally liable for whistleblowing claims

It has been the case for a long time that individuals can be held personally liable for acts of discrimination, so (for example) a manager who refuses to promote a woman because of her pregnancy can be named as a Respondent in her Employment Tribunal claim for discrimination, alongside the employer. We have dealt with a number of cases over the years where individuals have been personally named as Respondents, but it is not something that the vast majority of managers (and other employees) are generally aware of.

A recent case has shown for the first time that this principle also applies in whistleblowing claims.

The case is Timis v Osipov, which was decided recently by the Court of Appeal.

The Claimant had been dismissed for having made protected disclosures, and the decision to dismiss him was taken by two of the employer’s directors. He brought an Employment Tribunal claim, and the Tribunal concluded that he had been unfairly dismissed for whistleblowing. The problem was that by that time, the employer company had become insolvent. Therefore the question was whether he could seek to bring claims against the two relevant directors personally.

The Employment Tribunal’s decision (which was upheld by the Employment Appeal Tribunal and the Court of Appeal) was that the two directors had subjected the Claimant to a detriment because of his whistleblowing (by recommending his dismissal). In the Tribunal’s view, that rendered them jointly and severally liable (together with the employer company) for compensating the Claimant. This is in addition to the principle of vicarious liability. Therefore although the employer company had become insolvent, the Claimant could seek compensation from the two directors personally.

This case could mean we see an increase in claims being brought against individual decision-makers in whistleblowing claims. This makes it even more important that employers ensure that the correct procedures are in place and that managers are properly trained in their responsibilities to follow them (we can help with this). Whistleblowing can be a particularly tricky area, so it is always best to take advice.

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.

Can you make someone redundant when they are off sick?

I thought I would write about this topic as it is something that has cropped up (by coincidence) with several of my employer clients over the past few weeks. In particular, we have come across several situations where the employee avoids attending consultation meetings, is then signed off work with stress and refuses to attend any meetings, which then makes it difficult for an employer to follow a process.

The short answer to the question is yes, you can make someone redundant when they are off sick – but as with any dismissal, you are taking a risk, and how big that risk is will depend on the circumstances. For example, if you have a situation where a whole site is closing, that will be very different from a situation where you are having to select staff from a pool in order to determine who will be redundant, or when alternative roles are subject to an interview process.

The main thing to bear in mind to avoid an unfair dismissal claim is to act reasonably and follow a fair procedure in the circumstances. If an employee is off sick then your normal procedure may need to be adjusted. So for example, if someone is off sick with a broken leg, you could offer to go and see them at their home to carry out the consultation meetings.

With employees who are off work due to stress or mental health conditions, it can be more tricky because they may not be well enough to attend a consultation meeting at any location, and there may not be a clear indication of how long their recovery might take. There is no magic answer for dealing with situations like this, but tactics that might be worth trying include offering them the opportunity to comment in writing or by telephone, or perhaps through a representative.

If they are unable to (or refuse to) participate in any part of the redundancy process whatsoever, then the employer will need to take a view on whether they can wait for the employee’s health to improve, or whether they need to address the redundancy situation sooner. In addition to showing the genuine business reasons for the proposed redundancy and the reason why the situation cannot wait, if an organisation can show that they have acted reasonably, that they have given the employee opportunities to comment, and they have tried to make adjustments to the process to accommodate the employee’s ill-health, then it is highly likely that an Employment Tribunal would have sympathy with that.

In addition, even if a dismissal were found to be unfair on grounds of procedure, an Employment Tribunal can take account of the Polkey argument in assessing compensation. This is about the chance that even if the correct procedure had been followed, the outcome would have been the same. Our previous article on Polkey can be found here.

There is no doubt that situations like these can become messy, but if an employer acts reasonably then there can be a way through. We have helped a number of organisations deal with these kinds of matters, so do get in touch if we can help you.

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.

After the after-party – vicarious liability

It’s been nearly 2 years since we first reported on the case of Bellman v Northampton Recruitment in our article, ‘Christmas time, fisticuffs and wine’.

In summary, the case related to a managing director who assaulted one of his employees at a spontaneous after-party which followed the work Christmas do. Unfortunately, the employee suffered serious injuries as a result and brought a personal injury claim. The High Court held that the company were not vicariously liable for the actions of its MD, as there was insufficient connection between the position in which the MD was employed and the assault to make it right for the company to be held liable.

The case has now been heard by the Court of Appeal, which held, applying the Supreme Court decision in Mohamud (see our article on that case here), that the company was vicariously liable.

The Court of Appeal outlined the relevant questions to be asked: first, what was the nature of the employee’s job, and second, was there sufficient connection between the position in which the employee was employed and the wrongful conduct to make it right for the employer to be held liable.

The Court held that it in considering the nature of the employee’s job, it is the field of activities assigned to the employee that is relevant, not just what the employee was expressly authorised to do. In this case, the Managing Director was found to have a very wide remit and authority. The Court found that at the after-party, the Managing Director was seeking to exercise his authority over his subordinate employees, and he ‘was not merely one of a group of drunken revellers whose conversation had turned to work’.

In particular, the Court noted that although the after-party was not a seamless extension of the Christmas party, neither was it ‘just an impromptu drinks party between work colleagues which might happen on any night of the week after work’. The after-party had occurred on the same evening as the Christmas do, which had been paid for and organised by the Managing Director on behalf of the company.

Although this particular case related to personal injury, the same principle of vicarious liability applies in other employment related matters, particularly discrimination claims, so it is something that all employers need to be very aware of.

Vicarious liability cases tend to be very fact specific, and Lord Justice Irwin commented in the Bellman case on how unusual the facts of this case were. He also emphasised that ‘liability will not arise merely because there is an argument about work matters between colleagues, which leads to an assault, even when one colleague is markedly more senior than another’. However, given the outcome of this case, employers should be wise to the risk of being found vicariously liable for an employee’s actions. As we mentioned in our previous article on vicarious liability, risk management is key and having adequate training and robust policies in place will help to minimise the risks.

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 importance of a fair procedure

The test of whether or not a dismissal is fair or unfair in law is set out in the Employment Rights Act 1996. This provides that it is for the employer to show that they dismissed the employee for one of the potentially fair reasons (conduct, capability, redundancy, breach of a statutory enactment, or some other substantial reason justifying dismissal). This is usually not a very onerous burden. The next test is whether dismissal is reasonable in the circumstances of the case. This is a somewhat subjective test, and the area where many employers fall down. In conduct cases, the employer will have to show that they followed a fair procedure in investigating the alleged wrongdoing, that they held a fair disciplinary process, and that the decision to dismiss was within the ‘band of reasonable responses’.

This was illustrated in the recent Tribunal decision in Patel v DWP (2018). Mr Patel was a long serving civil servant working for the DWP, most recently as a work coach at a local Jobcentre. According to the DWP’s policies, civil servants were understandably not allowed to express any political affiliation and were required to “avoid making any kind of personal attack or tasteless or offensive remarks to individuals or groups”, whether in person, in writing or on social media. The policies also made it clear that breaches of the policies could be treated as gross misconduct.

The DWP received an anonymous complaint that Mr Patel had made tweets from his personal Twitter account which referred to far right extremists, Donald Trump and “white male Christian” gun owners. The DWP invited him to an investigation meeting and presented him with 9 tweets which were said to contain “tasteless, offensive, racist and political” comments. Mr Patel accepted that some of the tweets were offensive, but also pointed out that during a training session on the social media policy, the trainer had said that provided that provided that social media messages did not identify the DWP and were sent from personal accounts, then it did not matter what people wrote. Mr Patel apologised if he had breached the policies, but said that he had not realised that he was doing so.

Following the investigation the DWP decided to call Mr Patel to a disciplinary hearing. This was heard by a customer service leader. She did not review all the tweets which were the subject of the disciplinary, or give Mr Patel the opportunity to comment on them all. At the end of the meeting she postponed her decision in order to take advice from the HR department, but neither she nor the HR department carried out any further investigation. In particular, nobody investigated what Mr Patel said he had been told at the training session about posts on personal social media accounts which did not identify the DWP being outside the scope of the policies.

Mr Patel was dismissed for gross misconduct. He appealed against this decision, but the appeal was rejected. He then brought a claim for unfair dismissal in the Employment Tribunal. The Tribunal found that Mr Patel had been unfairly dismissed. They were particularly critical of the failure to investigate what Mr Patel said he had been told by the trainer, and also of the failure to allow Mr Patel the opportunity to comment on the tweets at the disciplinary hearing. The Tribunal did, however, find that Mr Patel was guilty of “culpable and blameworthy” conduct and that therefore any compensation would be reduced by 50%. We wait to see whether the DWP appeal against the finding, or whether Mr Patel appeals against the finding of contributory fault.

The case does neatly illustrate the need for a disciplinary process to be reasonable and for the need for a thorough investigation. On the face of it, natural justice would say that if Mr Patel was told that he could in effect say what he liked on his own social media accounts without breaking any rules, then he was very badly treated by the DWP. The real issue for the DWP is that they didn’t bother to investigate the claim.

It is easy for employers to fail to see the wood from the trees in cases like this, and this is why you should seek legal advice early in the process.

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.

 

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