In the courts

Unfair dismissal and whistleblowing

Clients will be familiar with the idea that a dismissal will only be fair if the employer has a fair reason (the list of which is set out in statute) and follows a fair procedure. Some reasons are automatically unfair – so if the principal reason is that the employee blew the whistle (or made a protected disclosure, to use the formal term) then no enquiry into the procedure is necessary and the dismissal will be unfair. But how should the tribunals and courts discover the reason? That is the focus of a very recent decision of the Supreme Court.

The facts are very unusual: an employee in a trial period blew the whistle on alleged financial misconduct; her line manager’s response was to seek to pretend that her performance was inadequate; the company eventually appointed a different manager to investigate whether her poor performance warranted dismissal; having no reason to doubt the truthfulness of the material showing poor performance, the other manager decided that she should be dismissed. In that scenario, was the line manager’s motivation relevant, or was the good faith decision of the decision-maker acceptable to render the dismissal fair?

The Supreme Court helpfully explained that, in most cases, only the rationale of the decision-maker is relevant. But, as the Court puts it, “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.” The dismissal in this case was therefore automatically unfair, emphasising the need for proper processes wherever dismissal is being contemplated.

Unfair dismissal and immigration

All employers in the UK have a responsibility to prevent illegal working and they do this by conducting right to work checks before employing someone. The Home Office provides a list of acceptable documents which the employee can present to their employer for a valid check. A valid check will allow the employer to establish a statutory defence should the employee not, in fact, have the right to work. In a recent EAT case, a company dismissed an employee after the Home Office told it (on several occasions) that the employee did not have the correct immigration clearances. Unfortunately, the Home Office was wrong. The employee was entitled to work by virtue of being married to an EU national. The original decision that the dismissal was fair will therefore now need to be reconsidered afresh.

Read our full eBulletin on this very difficult area of law.

Employee surveillance

Organisations sometimes need to monitor what their employees are doing, usually to check IT systems are being used for their proper purposes. Typically the power to undertake checks is set out in a handbook or IT policy, but occasionally businesses may need covert or undisclosed monitoring in order to investigate disciplinary matters. The Information Commissioner’s Office has detailed guidance for just this situation, which stresses:

• the need for a comprehensive data privacy impact assessment before the monitoring takes place;
• that a balance needs to be struck between the firm’s legitimate desire to ensure employees are acting properly, and the employees’ right to privacy; and
• that steps should be put in place to limit the amount of material collected, the number of people who have access to it, and the retention period.

That guidance appears to fit comfortably with a recent decision of the European Court of Human Rights, in which a Spanish supermarket installed secret CCTV cameras in order to investigate a suspicion of fraud. The cameras produced evidence that some of the till assistants were guilty of theft and fraud, and their eventual dismissal was the focus of a legal challenge. The Court upheld the fairness of the dismissal and the use of the video evidence. The Court’s wider commentary on when covert monitoring will be justified is in similar terms to the UK guidance, which should therefore be the starting point for any UK employer contemplating this kind of check.

In the news

Elections and employment

Readers may have noticed there is an election coming! The parties’ rival proposals for reforms to employment law make interesting reading, with the most radical promises coming (unsurprisingly) from Labour and the Liberal Democrats, which include:

• promising to maintain UK workers’ rights to EU standards after Brexit (Labour);
• reducing average full-time working hours to 32 per week within a decade (Labour);
• the creation of a single status of “worker” and for those people to enjoy "full rights" from day one (Labour);
• enactment of the proposal in the Taylor Report for the introduction of a “dependent contractor” employment status (Liberal Democrat);
• increasing statutory paternity leave to six weeks (Liberal Democrat); and
• extending the gender pay gap reporting regime to include BAME, and LGBT+ figures (Liberal Democrat).

The Conservative manifesto is expressed in somewhat more aspirational terms, without (in general) the granularity of the other parties’ offerings. Commentators have noted that one employment claim appears to be incorrect. The statement “We have reformed redundancy law so companies cannot discriminate against women immediately after returning from maternity leave” is not accurate – while such a measure was proposed in a recent Private Members Bill and was met with supportive Government pledges (see June’s HR Briefing), nothing has yet been enacted.

We will cover the victor’s plans in more detail after the election.