Where did the time go?

Otigba v Consensa Care

Show us a grown-up who wouldn't fancy being ten years younger and we'll show you a fibber.

Ms Otigba gave a false date of birth on her job application. Her employer didn't find out about this until it made some routine background checks during her first month of employment. Her Criminal Records Bureau data highlighted discrepancies and she was suspended while the company carried out some more investigations. It looked at her passport, birth certificate, accountancy certificate, driving licence and even her LinkedIn profile. These revealed a series of inconsistencies - she appeared to have two ages and two surnames.

Ms Otigba was dismissed and brought a wrongful dismissal claim for her notice pay (she didn't have enough service to bring an unfair dismissal claim). She lost; the tribunal held that the employer had gone about everything properly. Trust was important, particularly as Ms Otigba's position involved handling money belonging to vulnerable adults. She had breached this trust by trying to deliberately disguise a lost decade in her life, although the tribunal didn't speculate about the reason behind this.

The employer here went to great lengths to check the situation out properly and, crucially, didn't jump to conclusions. Remember that in cases like this, even where an employee has a short period of continuous employment, a fair procedure wins in the end.

FINANCIAL PENALTIES FOR EMPLOYERS

At some point in the next year, although the date is not yet clear, provisions come into force which will allow tribunals to fine employers for the way they breached workers' rights.

It's all about "aggravating factors". This term has yet to be defined, but we can take it for now that it means what it says: the breach was made worse by something the employer did or didn't do. How much will a guilty employer have to pay? Between £100 and £5,000 depending on the circumstances. Pay within 21 days and the fine is halved.

Lawyers are already poised to thrash out the meaning of "aggravating factors" and it will take a few years before caselaw makes it clear as to what qualifies and what doesn't. But we think reasonable employers are unlikely to experience problems.

CONSULTING ON REDUNDANCY WHEN INSOLVENT

AEI Cables v GMB Businesses with money troubles can't escape onerous duties. They must balance the need to reduce outgoings quickly with their legal responsibilities.

Consulting with staff in the lead-up to redundancy is one of the basics of employment law. But this takes time, as AEI Cables discovered when it needed to reduce its head count by more than 120 people. The business had been advised by its accountants that unless it cut costs, there was a risk of trading while insolvent (cue directors' liability and potential criminal penalties for fraudulent trading). So AEI made all 124 employees redundant straight away.

Those employees claimed that AEI had breached its duty to consult. They won and were each given awards of 90 days' pay, which was the maximum allowed. The company appealed and the Employment Appeal Tribunal (EAT) reduced the 90-day awards to 60 days. It was not reasonable, the EAT said, to expect an insolvent employer to carry on trading for 90 days while it informed and consulted with employees. Protective awards are not meant to penalise employers but to encourage them to consult. In AEI's case, some consultation could and should have taken place, despite the urgency of the situation.

Here the company's financial circumstances helped reduce its burden to consult, but this case makes clear that doing away with consultation altogether is a risky strategy.

A NEW WAY OF CHECKING EMPLOYEES

From 17 June 2013, employers could have cheaper, quicker access to criminal records information.

The Disclosure and Barring Service (an amalgamation of the Criminal Records Bureau and the Independent Safeguarding Authority) is launching a new Update Service which will allow prospective employers to check that a job applicant's DBS certificates are still valid and up-to-date.

The flipside of this is that the financial burden of these updates falls with job applicants who are set to pick up the £13-a-year fee for the system. A heavy price to pay? If it means they get the job then maybe not.

IT'S A PHILOSHOPHICAL BELIEF, HONEST

Hawkins v Universal Utilities

A tribunal has held that believing that lies should never be told is a philosophical belief, attracting protection against discrimination under the Equality Act.

Mr Hawkins was a telesales agent. He claimed that he was dismissed because he refused to lie to customers. Lying was contrary to his Christian beliefs, he said. The tribunal held that the actual reason for his dismissal was his inadequate performance. He hadn't produced evidence of being told to lie.

Although his claim failed, others might succeed. Truthfulness is an important and significant aspect of human life and isn't a value unique to Christianity. It can amount to a philosophical belief and, in the right circumstances, could be the basis of a successful claim.

IT'S ALL CHANGE IN JUNE

This month brings with it some important employment law changes.

Political belief dismissals
From 25 June an employee who is dismissed because of their political opinions or affiliation will no longer need two years' continuous service to bring an unfair dismissal claim.

Whistleblowing
Dismissals stemming from a protected disclosure (otherwise known as whistleblowing) sidestep two important employment law requirements:

1. The two-year qualifying period for unfair dismissal; and
2. The cap on compensation.

From 25 June, workers will only be protected by the whistleblowing laws if they "reasonably believe" that the disclosures they make are in the public interest. (Note that the disclosure doesn't have to be in the public interest; the worker just has to believe that it is.) While "public interest" hasn't yet been defined, it seems safe to say that it will be something that affects more than just one person. So a worker who tries to argue that a disclosure they made about their own employment contract, for example, will probably not be protected.

What about the intention behind the disclosure? Workers who make a disclosure out of spite, rather than to right a wrong, will from 25 June also be given whistleblowing protection. But their compensation could be reduced by up to 25% if the tribunal thinks that the disclosure was made in bad faith.

RE-ENGAGEMENT AFTER DISMISSAL

Oasis Community Learning v Wolff

Once a dismissal has happened the employment relationship is usually over. But where the dismissal was unfair, a tribunal could order the employer to take the employee on again.

That what's happened in this case. The question for the Employment Appeal Tribunal (EAT) was whether re-engagement was the right remedy where the employee had made serious allegations against colleagues and his employer.

Mr Wolff was a teacher who worked for Oasis, an organisation which helps turn failing schools around. He was dismissed for his confrontational style with pupils, and brought an unfair dismissal claim. In the lead-up to that hearing he alleged that staff had fabricated evidence. He won his unfair dismissal case and the tribunal ordered re-engagement at another of the employer's sites.

Oasis argued that Mr Wolff's actions towards colleagues meant that re-engagement was not appropriate; the relationship between Mr Wolff and Oasis had broken down irreparably. The EAT didn't agree. It held that where an employee has made serious allegations against colleagues and managers at one workplace, that will not have such an impact on his relationship with colleagues and managers at a different workplace.

So if you part company with an employee on bad terms, don't assume that you won't be forced back together later on.

Surprise!

Esparon v Roucou and another

Surprises come in all shapes and sizes. For Ms Esparon and Mr Frederick, it was an unexpected demand for £220,000.

Ms Roucou claimed to have been employed by the couple, and she brought a number of complaints against them. No defence was filed and the tribunal issued default judgment, awarding her compensation of just over £220k. Shortly after, Ms Esparon and Mr Stephenson received a letter from Ms Roucou's solicitor telling them that enforcement proceedings were to begin. That, the couple claimed, was the first they had heard of the claim. As it turned out, the tribunal paperwork had been sent to the wrong address.

An application to have the default judgment reviewed was refused because it was out of time and it wouldn't be just and equitable to extend time. The couple appealed, successfully. The Employment Appeal Tribunal (EAT) held that it was arguable that: (a) there was a good explanation for the failure to lodge the ET3 (it having been sent to the wrong address); (b) the couple had a good answer to the claim - they said they never employed Ms Roucou; and, (c) the balance of prejudice lay with the respondents.

These factors, the EAT said, were all relevant and the tribunal had misdirected itself by not considering them. So the case will be defended after all.

Early Retirement Scheme becomes Unstuck

HM Land Registry v McGlue

HM Land Registry (HMLR) was offering its workforce early retirement. Ms McGlue expressed interest in this but, because she was on a career break at the time, she was turned down. (Managers had decided between themselves that employees who were on a career break and who were not due to return before a set date should be excluded from consideration.)

Ms McGlue claimed indirect sex discrimination. She said that a provision, criterion or practice had applied to her as part of a group which was excluded from being considered for early retirement. That criterion disadvantaged her.

The tribunal upheld her claim and awarded her £71,000 in compensation, which was the amount she would have had under early retirement. She was also awarded £12,000 for injury to feelings and £5,000 for aggravated damages.

HMLR appealed the remedy decision, arguing that Ms McGlue had suffered no financial loss because she had continued to be employed by HMLR. Ms McGlue's response was that, had she taken early retirement, she would have found a similarly paid job and so would have had the benefit both of an ongoing salary and the early retirement sum.

The Employment Appeal Tribunal (EAT) rejected HMLR's appeal; the tribunal was right to award the compensatory and injury to feelings awards. But the EAT reduced Ms McGlue's aggravated damages award by £5,000 because there was no basis for it.

Solicitor's Mistake is no Excuse

El Kholy v Rentokil

After Mr El Kholy had been dismissed from work on 4 October 2011, he instructed a solicitor to help him appeal the decision. He was told on 6 January 2012 that his appeal had been rejected. On 23 January 2012 a second solicitor lodged his tribunal claim. This was too late, because the normal time limit for unfair dismissal claims is three months from dismissal. The tribunal refused to extend time because Mr El Kholy had not established that it wasn't 'reasonably practicable' to have presented his claim in time.

The Employment Appeal Tribunal rejected Mr El Khloy's appeal. Even where a solicitor's mistake leads to a claim being presented out of time, that doesn't mean that it was not reasonably practicable to have presented it in time. He was free to sue his solicitor for negligence, but he had lost the right to sue his employer.

Third Party Pressure to Dismiss

Bancroft v Interserve

It's long been the case that where a third party - a client, supplier or customer, for example - requires an employer to dismiss an employee, this can be potentially fair as "some other substantial reason". But does an employer have to be satisfied that the request is justified? Not always, but it is a factor, says the Employment Appeal Tribunal (EAT).

Mr Bancroft was employed by Interserve as a chef at a bail hostel which was contracted to provide catering services to the Home Office. The contract allowed the Home Office to require the removal of contractor staff without giving reasons.

Mr Bancroft had a difficult relationship with his manager who eventually wrote to the Home Office requesting that Mr Bancroft be dismissed. The Home Office replied asking for a permanent solution to be put in place and Mr Bancroft was suspended.

Interserve didn't try to persuade the Home Office to change its mind but it did offer Mr Bancroft another job, which he rejected. He was eventually dismissed and claimed unfair dismissal.

The tribunal found against him; Interserve had done everything it reasonably could. But the EAT disagreed. Injustice to the employee, and the extent of that injustice, is an important factor in the fairness of a dismissal. The tribunal should have taken into account the fact that Interserve had not considered the difficult relationship between Mr Bancroft and his manager.

The case was sent back to the tribunal to make all findings of fact and to then decide whether the dismissal was fair or not.

Employee Shareholders

Employee shareholders (previously called 'employee owners') were announced by George Osborne in the 2012 autumn budget as a new type of employment status. At its most basic, in exchange for being awarded at least £2,000-worth of shares in the employer, the employee would give up a bundle of employment rights, including the right to claim (most types of) unfair dismissal and the right to a redundancy payment.

Branded by some as unworkable, unnecessary and unwanted, the future of employee shareholder status looked uncertain when the House of Lords rejected it in two consecutive votes. Late last month, the legislation was passed in a watered-down form. We'll give you more information in a future bulletin, but it's looking like employee shareholder status may not be that attractive for employers after all.

Relying on Secret Recordings

Vaughan v London Borough of Lewisham

Ms Vaughan brought various claims against her employer. She wanted to rely on 39 hours of covert recordings she had made of contacts and meetings - including disciplinary hearings - between her and the Council. She claimed that the recordings would prove that the employer's notes were inaccurate, although she didn't go into more detail.

The tribunal refused to allow this evidence. The tapes would first need to be independently transcribed and that would have a disproportionate effect on costs, the tribunal said.

The Employment Appeal Tribunal (EAT) held that the tribunal had been right not to allow the evidence because Ms Vaughan had not established its relevance. The tribunal did not have anything to go on; Ms Vaughan hadn't been specific about what the tapes revealed.

But the EAT went on to be a little critical of the Judge's reasoning and to make some useful points.

First, recordings needn't necessarily be independently transcribed before a decision on admissibility can be made. As a first step Ms Vaughan should have given the Council her own transcript, along with the tapes and the Council could then have decided whether or not to dispute the accuracy.

Second, the fact that these recordings were covert was distasteful but doesn't mean they were inadmissible. If Ms Vaughan were to now make a more focussed application identifying parts of the recordings to be admitted in evidence then the outcome could be different. That second bite of the cherry would be allowed if in the interests of justice.