The recent Employment Tribunal (“ET”) decision in Dr B Radeljic v University of East London: 3201164/2020,in which Meaby&Co successfully represented the Claimant, illustrates the dangers of an employer refusing to address an employee’s grievances when those amounted to “protected disclosures”.
The factual matrix of the claims was:
The Claimant was a Reader of International Relations at the Respondent from 2008 to 2020. Academically, the status of “Reader” is one below that of “Professor”. In early 2019, he applied for professorship.
The promotion process was characterised by many significant shortcomings on behalf of the Respondent. When the Claimant expressed concern about those procedural flaws, both in relation to his and other employees’ promotion applications, the Respondent’s officers, apparently due to their knowledge of the veracity of those and their potential to cause embarrassment to it, either tried to avoid addressing the concerns directly, or eventually, when the Claimant persisted in seeking the truth to his concerns, stopped engaging with him, presumably in the hope that he would give up and the complaints would disappear.
The Respondent did not reckon on the Claimant’s tenacity. He submitted a formal grievance detailing those procedural shortcomings, which the Respondent attempted to persuade him to have considered informally. The Respondent employed a number of sham considerations of his promotion application, eventually finding some spurious grounds on which it felt it could reject that. The Claimant appealed those, once again citing the procedural flaws. Again, the Respondent attempted to avoid addressing the allegation of the 2019/20 promotion round’s procedural flaws by focusing solely on the merits of his promotion application, and ignoring his wider concerns.
The Claimant engaged Meaby & Co, who corresponded with the Respondent, laying out his concerns exhaustively in the hope that it would address those. After further months of delay and obfuscation on behalf of the Respondent, the Claimant resigned from the Respondent, stating that its failure to address those concerns, over 9 months after the date he first raised those, was a fundamental breach of his contract of employment which entitled him to claim that he had been constructively dismissed.
The Claimant brought ET claims for:
Constructive unfair dismissal;
Automatic unfair dismissal for making a protected disclosure (“whistleblowing”);
Detriment for making a protected disclosure; and
In an unusually conclusive Judgment, the ET agreed with him and upheld all his claims.
Lessons To Be Learned By Employers
While remedy has yet to be determined or agreed between the parties, a number of lessons can be learned by employers faced with allegations from an employee which could be construed as “whistleblowing”. If an employee makes “protected disclosures” (qualifying disclosures in the public interest), an employer should not ignore those. If it does, it could have the following results:
An employee being entitled to claim that by not addressing his complaint, they are entitled to resign and claim that they have been constructively dismissed;
In those circumstances, they are unlikely to have been paid their notice pay, and if not, will be entitled to make a claim for “wrongful dismissal”;
If that is successful, the employee’s restrictive covenants fall away;
The Compensatory cap for a successful “ordinary unfair dismissal” claim is currently £89,493 or 52 weeks’ salary, whichever is the lower. There is no such cap on a successful “automatic unfair dismissal” claim, which is the claim governing an employee’s dismissal for whistleblowing. Although the ET will make a determination on how much to award a successful Claimant based on the Claimant’s losses, it can substantially exceed the Compensatory cap for ordinary unfair dismissal.
The employer suffers significant reputational damage, both as a result of failing to address the original whistleblowing, and the subsequent negative publicity from the ET’s Judgment. It risks being perceived as an employer which does not value its employees or their views.
Meaby&Co have lawyers experienced in representing both claimants and respondents in ET claims, including whistleblowing. Should you require further information on the above case or advice on its implications, please contact Chris Marshall on 0207 703 5034.
Steven Eckett, Partner and Head of Employment Law at Meaby&Co Solicitors has produced a five step check list for employers to help protect interns from harassment.
This check list aims to create best practice for employers to ensure interns can work in a safe environment and to give legal protections to employers.
Mr Eckett said: ‘Too often interns (some of whom are for the first time venturing into the workplace) are treated differently to other employees and their employment rights are overlooked or not taken as seriously.
‘This can not only be detrimental to the intern but can place the employer in a vulnerable legal position that can leave them open to potential litigation.
‘A few updates to existing HR policies and some extra induction steps offers both the interns and employers vital protection.
‘It’s really important that firms don’t make the mistake of treating interns like second class citizens when it comes to employment rights.’
Five Steps Employers Should Take When Hiring Interns.
HR should adopt appropriate training specifically for staff members who will be managing or working alongside interns prior to the intern commencing the internship.
Employers needs to ensure that they have an anti-retaliation policy in place which protects an intern who has reported harassment from being retaliated against from other employees in the organisation.
Anti-harassment and anti-bullying policies should be accessible to interns from the outset of their internship usually in a staff handbook. It should be clear what actions an intern should take when they experience, see, or find out about harassment.
HR teams may also consider ensuring there are multiple ways to report harassment by an intern. An intern may wish to report in confidence or bypass specific individuals, especially those who are the cause of the harassment therefore, allowing multiple and flexible ways to report an issue may assist in doing this. It should also be open to an intern to raise a formal grievance. Alternatively, the employer can decide to treat a complaint as a grievance.
An effective induction programme for interns to allow them to understand how and to whom they should report any harassment related matters should be implemented.
Fitness Chain ‘Gym Group’ is in the spotlight after a personal trainer blew the whistle on its self-employment business model. This has resulted in Gym Group being called before the House of Commons Work and Pension Committee to explain itself.
The personal trainer who blew the whistle queried elements of his written terms and conditions with Gym Group which for example required him to appoint a substitute in the event that he was not available for work, to give notice of any intention to take holidays, and to give notice in the event of terminating the agreement. In addition he was required to wear a Gym Group uniform at all times on the premises and to work on a shift system at set hours that was set by them.
Interestingly the written agreement stated that Gym Group trainers were required to agree that they were neither employees or workers, but instead were ‘freelance independent personal trainers’.
One of the members of the Committee, the Right Honourable Frank Field has written to the CEO of Gym Group and has suggested that the terms and conditions in the written agreement ‘appear to be incompatible with self-employment’. He also expressed his opinion that this was ‘one of the most egregious examples’ of ‘dubious self-employed working models’ he had come across.
The main focus of the complaint is that Gym Group are circumventing employment protection rights of its personal trainers by falsely setting them up as self employed agents, when in fact at the very least n law they are workers. This is important as it affords various protections to workers including the right to the national minimum wage and holiday pay.
The Right Honourable Frank Field also said that this arrangement ‘underscores the urgent need for new legislation to protect workers against bogus self-employment – something I very much hope the Prime Minister will find time to allow Select Committees to pursue in this Parliament.’
This is another nail in the coffin for the advancement of so called self -employed arrangements where Companies are clearly attempting to avoid their legal duties and responsibilities by the use of such bogus models.
It is clear that in these circumstances the personal trainer was controlled by Gym Group in terms of his specific hours of work, and being forced to represent himself as a member of their staff by having to wear their uniform. Hopefully they will now change their practices and will act responsibly to their personal trainers after this exposure.
If you have any concerns about your current arrangements and business models then it is recommended that you contact Head of Employment Law, Steven Eckett at Meaby&Co for timely advice email@example.com.
A bill has recently been published which will entitle employed parents who have suffered the death of a child under the age of 18 or in full time education, the right to statutory paid leave to help them to grieve.
The bill has been introduced under the ballot procedure by Kevin Hollinrake MP and has the support of the Government. He states: ‘This is such an important Bill for parents going through the most terrible of times. There is little any of us can do, but at least we can make sure that every employer will give them time to grieve.’
The Parental Bereavement (Pay and Leave) Bill will seek to ensure that grieving parents who are employed, receive leave to grieve in private and away from the workplace, regardless of their length of service.
Employees who have 26 week’s continuous service with their employer will also benefit from two week’s statutory parental bereavement pay, the cost of which employers can recover from the Government. The amount to be paid must be no less than 90% of average weekly earnings or £140.98 per week whichever is lesser.
This is also a good opportunity for employers to update their bereavement policies to take into account these new rights and to ensure that they are also aligned to UK discrimination laws where there might be longer periods of mourning for some religions.
The fact is that there is no legal obligation on an employer to provide either a verbal or written reference for a departing or former employee. The only exception is in the financial industry where references are regulated by the Financial Conduct Authority.
However if an employer agrees to provide a reference, whether it is verbal or written there is a duty to take reasonable care to ensure that the contents are true, accurate and fair and are not misleading. This duty of care relates not just to the departing or former employee but also to a prospective new employer who may be influenced by its content in deciding whether to make an offer of employment.
One question that often arises is whether an employer can provide a bad reference. The answer to this depends on whether it is true or not. The worst case scenario is where an employer provides an untrue bad reference out of malice that cannot be substantiated and the departing or former employee loses employment opportunities. In this situation the employee can sue for damages for financial loss or even defamation and unlawful discrimination.
Where an employee is dismissed and brings proceedings say for unfair dismissal and unlawful discrimination then the provision of an untrue and bad reference can be an aggravating factor and potentially classed as victimisation. The employment tribunal can take into account when assessing any compensation.
Conversely employers can be sued by future employers who hire the departing or former employee as a direct result of a glowing reference that turns out to be untrue. There was a flux of case law in the 1990s where a number of former employers were successfully sued by former employees and new employers because they relied on references which turned out not to be true. Spring v Guardian Assurance plc and others  IRLR 460 HL is one authority where in extreme circumstances a former employee successfully sued his former employee for negligent misstatement which resulted in loss of employment opportunities and barred from the insurance industry.
For this reason many employers have now implemented a strict written policy on the provision of references. Many employers will now only provide a basic factual reference with no subjectivity. It is therefore common practice for many employers to provide minimal information for example just the dates of employment, job title and salary with no detail to how good or bad the employee was at their job.
It is also common practice for employers who do provide a reference to include a disclaimer of liability arising from any errors, omission or inaccuracies that may be contained. Disclaimers will generally be of limited effect however there is no real disadvantage to the employer by including one.
Some employers also have a policy not to provide references at all and this could imply that you have a problem with the departing or former employee. This in turn could lead to allegations that you are discriminating against them and have broken the mutual trust and confidence. It is therefore good practice to respond to each reference request and to back it up with a statement that it is not your policy as an organisation to give references.
Where the employment relationship breaks down and this results in a settlement agreement it is also customary for the Employer to provide a reference as part of the deal. It is my experience that employers are usually only willing to provide the most basic and factual of references. It is better in these circumstances for the departing employee to attempt to secure a personal reference from a colleague who can perhaps vouch for the quality of their work.
It is also good practice to be consistent in the treatment of employees when providing references. Providing a reference to one employee but not another could result in a claim of unlawful discrimination giving rise to legal risk and costs.
Another issue is what happens if the departing or former employee wants to see the reference? The general principle is that you do not have to disclose the reference. However a new employer will have to disclose the reference if the former employer has consented to its disclosure and that it is reasonable in all the circumstances for the new employer to do so.
If you really do not want the reference to be disclosed to the departing or former employee then it is vital that you inform the prospective new employer that you do not consent to its disclosure or any confidential parts of it to the employee. It is obviously better to make this request in writing.
The Information Commissioner has also issued a Data Protection Good Practice note in relation to subject access and employment references. This suggests that in most circumstances the employer should provide the information in a reference to the person to whom it relates. Where the person who wrote the reference refused their consent to disclose the reference this will not justify withholding the information contained in the reference, especially where it has affected the individual’s ability to take up a job offer. The Information Commissioner also recognises that there may be circumstances where it would simply be inappropriate to divulge the details or to disclose the reference for example where there is a threat of violence and/or intimidation by the former employee towards the person who wrote the reference.
To summarise there is no right to a reference, except that employers need to ensure that it is accurate and on this basis it is a good idea to ensure that time and thought is given to the task to minimise any future risks.
To find out more about the Employment Law Services we provide or discuss any particular requirements you may have, email Steven Eckett (firstname.lastname@example.org) or call 02077035034.
It is now some 6 weeks since the Government was forced to abandon employment tribunal fees following the success of Unison in challenging their legality all the way to the Supreme Court, which overturned the previous High Court and Court of Appeal rulings.
The Pensions Regulator is bringing the first ever prosecution against a bus company, Stotts Tours and its managing director Alan Stott who it is alleged have deliberately avoided enrolling their 36 members of staff into a qualifying workplace pension scheme. The hearing will take place on 4 October 2017 at Brighton Magistrates Court.
An Important announcement has recently been made by the Presidents of the Employment Tribunal in England, Wales and Scotland who have released a joint response on what is commonly known as the Vento Bands of discrimination……
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