June Blog - 08/07/2019

Occupational health reports – sometimes you need to ask more questions

An employee's repeatedly on short periods of sickness absence. Eventually, in line with your attendance policy, you get an occupational health report (OHR) and consider dismissal. The OHR says there's no disability. There is no other evidence on the matter, so you dismiss. Should you have got more evidence?

If there was reason to think further evidence was needed, then yes.

Sickness absence procedure

If an employee is off work sick for a long time, then they're not capable of doing their job. That's a potentially fair reason for dismissal, so if you follow a fair procedure it's fair to dismiss.

Short-term absences are more complicated. If each absence is because of the same underlying condition, they may be incapable of doing the job and so dismissal for lack of capability might be fair. If the absences are all for different ailments, the employee may well be 'capable' of working, but the business can't continue like that – so you may be able dismiss for 'some other substantial reason'. (This assumes the absences are genuine.)

The Employment Appeal Tribunal (EAT) has said that a fair approach to repeated short-term absences includes:

  1. Reviewing the pattern of absences and their reasons;
  2. Giving the employee the opportunity to make their case and warning that they must improve their attendance;
  3. Considering whether they have improved.

In considering whether dismissal is appropriate, you must make sure the employee is aware of the standards expected, the impact of their absences on the business and that dismissal is possible.

If there's no underlying medical condition, a medical report might not be very useful. However, you should still get one because there may be an underlying reason that you're not aware of, which could lead to a disability discrimination claim.

The medical report

In the recent case, the employer got 4 occupational health reports (OHRs). The employee argued that the employer shouldn't merely 'rubber-stamp' the OHRs – it should have asked further practical questions.

The EAT agreed that the employer shouldn't 'rubber-stamp' OHRs, but said the employer hadn't done that. The reports were substantial and gave reasons for their views. There was nothing to alert the managers that they should seek more evidence.

What this means for you

Always get an OHR if you're considering dismissing for sickness absence. Consider the report fully, and consider whether further evidence is needed – we've seen many OHRs that should have been more thorough. But if there is no reason to think that further evidence is needed, you can rely on the report.

How we can help

Our Employee handbook covers sickness absence, capability procedures and reasonable adjustments. We also have a Letter to an employee seeking consent to a medical examination.


June Blog - 16/07/2019

Directors beware – corporate identity won't shield everything

You start a business. You therefore start a company. Does this mean that you don't have to worry about being found liable if the company is found to be in breach of contract?

No. A recent case has confirmed that if you act outside of your authority as director, you could be personally liable for the company's breaches of contract.

The claimants worked on farms catching chickens for slaughter. They alleged, successfully, that they were exploited. In particular, their hours were too long, they were paid less than the minimum wage and were not paid the sums recorded on their payslips – and the payslips themselves were fictional. They weren't paid for holidays or for overtime at the prescribed rates and unlawful deductions were made.

As a preliminary issue, the High Court had to decide whether the directors were personally liable. The contracts were not with the directors, but with the company, which has a separate legal identity. That meant they could not be liable for breach of contract or for breach of these statutory duties.

The High Court decided the directors were liable for inducing breach of contract because they'd acted in bad faith and outside of their authority as directors. They'd acted in bad faith because they didn't honestly believe that they were paying the minimum wage or that they were entitled to withhold payments. They had also, by doing that, ruined the company's reputation and caused it to lose the gangmasters' licence it needed to employ the workers. Accordingly, they weren't exercising reasonable care, skill and diligence towards promoting the success of the company, as required by the Companies Act 2006.

What this means for you

There are benefits to operating a business through a company. One such benefit is that you won't normally be liable for its debts. But if your actions are clearly unlawful, there's a good chance you'll be personally liable for something.

How we can help

he principal employment rights, such as minimum wage and holiday entitlement, are explained in our Employment agreement.

June Blog - 22/07/2019

Privacy matters – relying on confidential material as evidence for dismissal

An employee is alleged to have committed a serious criminal offence. There's a police investigation; they drop the charges but give you their evidence. This includes information that normally would be private, e.g. photos on his phone. Relying on that evidence, you conclude that it's more likely than not that he did commit the offence and you dismiss him. Is that fair?

A recent judgment from the European Court of Human Rights (ECtHR) suggests it is, though it will depend on all the circumstances.

The employee had a relationship with a colleague, who then ended it. The employee suspected the colleague was having a relationship with another colleague. He threatened to inform their manager, and then started a campaign of harassment against them. This included setting up a fake Facebook account and sending anonymous emails about them to 150 colleagues. The emails suggested the author had been following them. If the employee had indeed done that, dismissal for gross misconduct would have been fair.

The conduct could also have been criminal, so the police investigated. They didn't charge the employee, but found evidence linking him with the emails. The police gave that evidence to the employer, who used it in their disciplinary investigation.

First, there are some general points worth noting:

  1. Sometimes evidence is clearly in the public domain already, e.g. witness evidence.
  2. There was evidence in work emails – privacy here depends to an extent on your policy and what you've said to staff: if you've told them you read all work emails, they can't expect privacy; if you've said they can use work email for private use, they can expect a level of privacy.
  3. Private communications – e.g. texts on a non-work phone or emails on their personal account. Usually, they will have reasonable expectation that this communication will be private. However, this case confirms that that won't always be the case – if the employee is suspected of very serious misconduct, they might lose their expectation of privacy.
  4. Information in their possession that's not been seen by anyone else, e.g. photos on their phone. Similar principles apply here as to private emails.

The Employment Tribunal decided that his rights hadn't been breached, and the EAT and ECtHR agreed. This was largely because once he'd been warned that allegations of harassment had been made, he should have known that any subsequent documents or correspondence might be used in an investigation. So from that date onwards, he didn't have a reasonable expectation of privacy. It was also relevant that he hadn't complained about the use of the evidence at the time.

What this means for you

As a caveat, the tribunals and courts didn't address whether the police were right to send their evidence to the employer. The Police and Criminal Evidence Act 1984 (PACE), says that when a decision not to prosecute is made, evidence shouldn't be disclosed to a third party. From a criminal standpoint (with its higher standard of proof), the employee was presumed innocent at that point. The tribunals' and court's approach is therefore questionable

Also, in a similar case that we covered in October 2017, the ECtHR decided that an employer might have breached their employee's privacy by monitoring his emails. 'Might have', because the case was against the Romanian courts, not the employer – the former hadn't adequately addressed whether the employer had warned the employee that it might monitor his emails.

In our experience, if misconduct is very serious, using what would normally be private in evidence won't normally make a dismissal unfair. This recent case supports that, but you're on safer ground if you have a fair privacy policy dealing with these matters. E.g. it should explain that, and when, you might monitor things that would normally be private. You must also follow a fair procedure when misconduct allegations like this arise.

How we can help

Our Employee handbook addresses these issues in the Internet and electronic communications policy, and also covers disciplinary procedures. Our series of disciplinary letters includes a number of relevant letters, in particular: Employee disciplinary meeting letterEmployee dismissal letter following previous disciplinary action and Employee dismissal letter for gross misconduct.