London,
06
May
2016
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Spring Changes

Employment E-alert - May 2016

Whistleblowing: a public interest – or just an interested public?

Intro:  Whistleblowing claims often focus on complaints made by a whistleblower about their own employment. To discourage this, a law change in 2013 required that a disclosure of information by a worker could only be a “protected” disclosure (giving the worker whistleblower protection) where that worker had a reasonable belief the disclosure was made in the public interest. However, a recent claim against the Royal Mencap charity shows that disclosures about the individual’s work or pay may still satisfy this public interest test, restoring additional legal risk for businesses.

The “public interest” test

The following disclosures were recently held to satisfy the public interest test, demonstrating the breadth of the test:

  • A disclosure by a worker about the earnings of a group of 100 managers,
  • A disclosure by a worker about overtime allocation for a group of four employees.

However, the Employment Appeal Tribunal went one step further in the case of Morgan v Royal Mencap. It agreed a whistleblowing claim could proceed to trial where the alleged protected disclosure was the worker’s complaint that her cramped desk caused her physical pain.

The individual claimed she reasonably believed this disclosure was in the public interest because:

  • Other employees might be affected by the cramped working conditions
  • The public supported Mencap financially and so would be interested to know how it treated its staff.

Implications

In the Mencap case, the worker will still need to prove at trial that she had a reasonable belief that her disclosure was in the public interest.

The case shows that the “public interest” test hurdle does not prevent whistleblowing claims based on employee-issues. Staff in many consumer-facing or high-profile businesses could make similar arguments to the Mencap employee that there is a broad public interest in how they are treated at work. It also shows that Tribunals are reluctant to strike out whistleblowing or discrimination claims at an early stage, resulting in additional defence costs for businesses.

Employee-related complaints raised during employment may be thought better dealt with under the business’ grievance procedure than the whistleblowing procedure. When investigating the grievance, the business should usually focus on the individual complainant rather than any wider impact. However, businesses should be aware that such complaints may nevertheless lead to whistleblowing claims and therefore must ensure that workers are not subjected to a detriment or dismissed for raising such complaints.

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Dismissing illegal workers

Intro: There are stringent civil and criminal penalties for employing individuals who do not have the right to work in the UK. If an employee’s permission to work in the UK is temporary, the business must follow up rigorously to check whether that permission has ceased or has been extended. Such follow-up checks can be challenging, particularly if the employee does not cooperate with the employer’s enquiries. A recent claim against the Royal Mail illustrates the steps which businesses must take to dismiss an employee fairly in these circumstances.

Unfair dismissal and illegal working

If the business can prove that an employee is no longer entitled to work in the UK, it can dismiss the employee on the basis that it would be illegal to continue to employ them. This is a fair reason for dismissal. Provided the business adopts a fair procedure, it will then be able to successfully defend any unfair dismissal claim by the employee.

However, a business may not have definitive proof that an employee does not have permission to work in the UK. In such cases, a business may instead be able to fairly dismiss the employee on the ground that it reasonably believes that the employee no longer has the right to work in the UK, having taken all reasonable steps to investigate the position.

In Nayak v Royal Mail, the employee’s initial visa expired during employment but he made a visa extension application prior to that expiry. Currently, such employees may be eligible to continue working in the UK while the Home Office determines their visa extension application. The Royal Mail asked the Home Office several times for updates on the progress of the application for visa extension, pending over several years, but the Home Office did not indicate whether the visa extension had been granted or refused. The Royal Mail also asked the employee to make his own enquiries of the Home Office or provide evidence of his right to work in the UK. He failed to do so. The Royal Mail ultimately dismissed him and the Employment Appeal Tribunal confirmed that dismissal was fair.

Implications

Employing personnel without permission to work in the UK can result in heavy fines, difficulty renewing (or even the revocation of) the business’ sponsorship licence and in reputational damage. The business may take a commercial decision that those risks outweigh the risk of a successful unfair dismissal claim. This case shows that the risk of a successful unfair dismissal claim can be reduced by giving the employee a reasonable opportunity to demonstrate that they have the requisite permission to work in the UK.

Businesses may wish to emulate the Royal Mail’s policy of checking right to work status at regular intervals where the employee has an outstanding visa/extension application. Such a policy may assist the business to comply with immigration requirements and, provided it is applied consistently, is unlikely to amount to race discrimination.

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When is “pulling a sickie” grounds for dismissal?

Intro: A recent YouGov survey suggested that one in five employees has either invented or exaggerated medical symptoms to take time off work in the last year. Although this practice may be widespread, a recent case shows that the business can take action against such employees, provided they have sufficient evidence.

Proving dishonesty

In Metroline v Ajaj, the employee claimed to have been injured at work and as a result was unable to attend work. The business believed that the employee had exaggerated his injuries (including during an examination by the business’ Occupational Health adviser) and obtained covert video recordings of him which supported that. The Employee was dismissed for gross misconduct and both the Employment Tribunal and Employment Appeal Tribunal confirmed that dismissal was fair.

A health warning…

In order to dismiss fairly in such cases, the business must have a reasonable belief, formed having carried out a reasonable investigation, that the employee is exaggerating, and dismissal must be reasonable in all the circumstances. Not every case of suspected exaggeration will justify dismissal, particularly if occasional “sickies” have been unhealthily tolerated in the past.

The business must have evidence; mere suspicion is not enough. Obtaining covert video evidence of staff (as the business did in this case) may breach data protection law. The Information Commissioner has warned that covert surveillance of staff should be a last resort and only used where serious wrongdoing (such as fraud) is suspected. Businesses which suspect sickness exaggeration by staff should in most cases seek to obtain alternative evidence (such as an independent medical report) first before using covert means.

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If you would like more information or advice on Employment issues, please contact Jane Amphlett or a member of our Employment team.

Contact
photo:Jane Amphlett
Jane Amphlett
Head of Employment
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