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Employment Law Titles ~ November 2022
- Employee Bonuses – A Commitment is a Commitment
- Furlough Whistleblower Succeeds in Automatic Unfair Dismissal Claim
- How to Conduct a Fair Redundancy Exercise – Guideline EAT Ruling
- Is Dismissal a Reasonable Response? It All Depends on Context
- Low Caste Hindu Refused Anonymity Order in Employment Case
- Peculiar Scoring System Rendered Genuine Redundancy Exercise Unfair
- Racial Harassment – Black Nurse Advised to ‘Bleach Her Skin White’
- Time Limits in Employment Cases – Any Delay Could Stymie Your Claim
Employee Bonuses – A Commitment is a Commitment
When it comes to bonuses, commitments made to employees must be honoured. An Employment Tribunal (ET) made that point in coming to the aid of a salesman whose employer prevaricated on its obligation to reward him with a six-figure sum following his successful closure of a multi-million-pound deal (Kenney v Infor (United Kingdom) Ltd).
The software salesman and his team spent many months negotiating the deal. His line manager later assured him that he would receive an exceptional six-figure bonus to mark his success and that the payment had been approved at the highest level. Very soon afterwards, however, his employer underwent a restructuring and the make-up of its senior management team changed significantly.
Only a third of the promised bonus appeared on his payslip following the employer’s receipt of its first payment under the deal and he was informed that payment of the balance would be deferred until a later date. He responded by lodging a grievance and set a deadline for payment of the entire bonus. After that deadline came and went, he resigned and launched ET proceedings alleging constructive unfair dismissal.
Upholding his claim, the ET found that he had every reason to believe that his bonus had been signed off, ultimately by his employer’s then CEO, who left the company shortly afterwards. A binding commitment to pay him the bonus had been made and the ET observed that, if he could not trust his managers to give him accurate information, then whom could he trust?
The ET found that, following the restructuring, the employer had first prevaricated and then reneged on the bonus commitment. It was not open to the employer to unilaterally re-decide the terms on which the bonus would be paid simply because it did not like how much money it would have to pay him.
The employer had no reasonable or proper cause for failing to pay him the bonus as agreed, and his grievance was not dealt with in a satisfactory manner. When the deadline passed, he was entitled to resign on the basis that there had been a fundamental breach of his employment contract. If not agreed, the amount of his compensation would be assessed at a further hearing.
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Furlough Whistleblower Succeeds in Automatic Unfair Dismissal Claim
Employees are entitled to insist that their employers abide by their legal obligations and should never be penalised for doing so. The point was made by the case of a woman who pointed out that a meeting with her boss had extended beyond her agreed working hours under the COVID-19 furlough scheme (Conway v Royal Talens UK Ltd).
The sales manager was on part-time flexible furlough during the pandemic and, on most days, her agreed working hours were between 10am and 4pm. During a performance review meeting with her boss, she realised that it was about 4.10pm and that they were not even halfway through their discussion. She asked if the meeting could continue on another day at a time within her agreed hours. Her boss became annoyed and angry at that suggestion.
She made it clear to him, however, that she was not prepared to work beyond her part-time furlough hours and that it would be wrong to do so. She reminded him that she and some colleagues were working longer than agreed hours to get the job done and expressed the view that it would be unfair for that to continue. She wanted him to understand that working during time for which furlough money was being claimed from the government was wrong. She was dismissed a few weeks later and lodged Employment Tribunal (ET) proceedings.
In upholding her whistleblowing claim, the ET found that she had made a protected disclosure. She had clearly communicated to her boss her belief that continuing the meeting beyond her fixed hours was a breach of the legal obligation to comply with the furlough rules. The ET was also satisfied that her protected disclosure was the principal reason why she lost her job and that her dismissal was thus automatically unfair. If not agreed, the amount of her compensation would be assessed at a further hearing.
It is important to recognise when workers have rights under the whistleblowing legislation and to investigate thoroughly matters raised in such circumstances. Contact <<CONTACT DETAILS>> for advice.
How to Conduct a Fair Redundancy Exercise – Guideline EAT Ruling
A redundancy process in which a decision to dismiss is effectively taken in advance of consulting an affected employee will almost never be fair. The point was made by the Employment Appeal Tribunal (EAT) in the case of a nurse who was selected for redundancy solely because her fixed-term contract was shortly due to expire (Mogane v Bradford Teaching Hospitals NHS Foundation Trust and Another).
The nurse worked in a research unit that was losing money and needed to shed staff. She was selected for redundancy for no other reason than that her contract was coming up for renewal sooner than that of a colleague. Her unfair dismissal complaint was rejected by an Employment Tribunal (ET) on the basis that her selection fell within the band of reasonable responses open to her employer.
Upholding her appeal against that ruling, the EAT noted that, once the decision was made that the employee with the shortest time remaining on their contract should be selected, the nurse’s dismissal became a fait accompli. The decision effectively placed her in a pool of one and rendered any subsequent consultation on the question of dismissal pointless.
Given that she was effectively chosen to be the employee dismissed before any consultation took place, the EAT was able to reach its own conclusion that her dismissal was unfair. If not agreed, the amount of her compensation would be assessed by a differently constituted ET.
In giving general guidance on the fair conduct of redundancy processes, the EAT noted that the implied term of trust and confidence requires that employers will not act arbitrarily towards employees in the methods of selection. Fairness requires genuine and meaningful consultation to take place at a formative stage when the employee concerned can still potentially influence the outcome.
Where the choice of criteria adopted to select for redundancy has the practical result that the selection is made by that decision itself, consultation should take place prior to that decision being made. It is not within the band of reasonable responses, in the absence of consultation, to adopt a single criterion which simultaneously identifies the pool of employees under threat of redundancy and the particular employee who is to be dismissed. Whilst a pool of one can be fair in appropriate circumstances, it should not be considered, without prior consultation, where there is more than one employee.
The manner in which the redundancy process is conducted is important and any unfairness inherent in the process will be clear to judges. Contact us for advice.
Is Dismissal a Reasonable Response? It All Depends on Context
When considering whether an employee’s misconduct justifies their dismissal, context is everything. An Employment Tribunal (ET) made that point in the case of a warehouse operative who responded angrily on social media after she was laid off at the start of the COVID-19 pandemic (Borysiewicz v Yours Clothing Ltd).
The woman and some of her colleagues were laid off, without pay, shortly before the first lockdown came into force. They formed a closed Facebook Messenger group on which disparaging comments were made about the company and members of its management team. She was later placed on furlough and, on her return to work, faced disciplinary proceedings. She was accused of bringing the company into disrepute and was ultimately dismissed.
Ruling on her unfair dismissal claim, the ET noted that some of her comments were profane and intemperate and that a potentially fair reason for dismissal existed. The manager who made the dismissal decision genuinely believed that her social media activity amounted to misconduct. Given the onset of the pandemic, the employer may have had little choice but to lay off staff.
In upholding her complaint, however, the ET noted that she was a relatively long-serving employee with an otherwise exemplary disciplinary record. She had not previously displayed attitude problems and her comments were made in a closed group, outside working hours. She had no forewarning that they would be disclosed to her employer or viewed as constituting misconduct.
When viewed in the context of the pandemic and the unheralded decision to lay her off, her comments amounted to little more than venting, or a workplace moan against management, at an emotional and stressful time for all concerned. The ET also identified procedural flaws in the investigation and disciplinary process. The amount of her compensation – which would be reduced by 10 per cent to take account of her own contributory fault – would be assessed at a further hearing, if not agreed.
We can assist you in dealing with any matters relating to unfair dismissal. Contact <<CONTACT DETAILS>> for expert advice.
Low Caste Hindu Refused Anonymity Order in Employment Case
The subject matter of Employment Tribunal (ET) cases can be highly sensitive, and those involved are often keen to maintain their anonymity. However, as was shown by a case in which controversial religious issues took centre stage, the open justice principle will usually require them to be identified by name (Ramachandran v Bechtel Ltd).
The case concerned a senior electrical engineer who was of Tamil origin and came from a low Hindu caste. In ET proceedings he asserted, amongst other things, that his line manager, a high caste Hindu from Mumbai, had discriminated against him on racial grounds. He claimed that his promotion prospects, bonuses and work allocations had all been adversely affected by his low caste status.
In contending that he should be permitted to bring his claim anonymously, he argued that members of his caste are subject to widespread victimisation by higher caste Hindus, both in India and the UK. He contended that, were he to be identified in the proceedings, any resulting publicity could place him, his wife and his children, together with members of his caste generally, at risk of persecution.
Ruling on his application for an anonymity order, the ET accepted that members of his caste do face discrimination by some higher caste Hindus. It was not, however, persuaded that they suffer systematically from threats or acts of violence in this country. His sons were doing very well at school and there was no evidence that they had been threatened, assaulted or victimised by those from upper castes.
In refusing to grant the order sought, the ET concluded that he had failed to provide the clear and cogent evidence required to justify a departure from the fundamental principle of open justice. The ET also rejected the employer’s plea that individuals who would feature as comparators in the case should be granted anonymity.
Peculiar Scoring System Rendered Genuine Redundancy Exercise Unfair
A redundancy exercise may be based on reasonable criteria yet flaws in the scoring system used to assess employees’ performance may still render a dismissal unfair. In a case on point, an Employment Tribunal (ET) identified a number of errors and peculiarities in a scoring procedure that led to an agency worker wrongly losing his job (Downey v Resource Management Solutions (North East) Ltd).
Faced with a business downturn arising from the COVID-19 pandemic, the employer selected a group of eight workers on the basis of their length of service, from which five would be made redundant. There was no dispute that there was a genuine redundancy situation and the ET found that the assessment criteria used for selecting those who would lose their jobs were reasonable.
In nevertheless upholding the worker’s unfair dismissal complaint, the ET found that the scoring system used was so obviously unfair and likely to produce a perverse outcome that it was not within the range of reasonable options open to an employer. Giving an example, the ET noted that the system applied meant that a worker with a poor disciplinary record would keep his job over one with an exemplary record just because the former had completed one simple training course.
Certain criteria were given excessive weight over others and, but for a careless error that was made when scoring his absence record, the worker would have kept his job. The unfairness was far from cured by an appeal process in which radically different criteria were employed. At that stage, he was unfairly penalised in that his strengths in training and team leadership were wholly left out of account.
The ET found no evidence that the worker had been targeted for redundancy due to his outspokenness in making complaints. However, aspects of the scoring process were peculiar or highly unusual and there was circumstantial evidence that one of his colleagues, who kept his job, benefited from some form of favouritism, whether conscious or unconscious. The amount of the worker’s compensation would be assessed at a further hearing, if not agreed.
Consulting legal advisers when entering into redundancy proceedings is vital to avoid unfairness. Contact <<CONTACT DETAILS>> for expert guidance.
Racial Harassment – Black Nurse Advised to ‘Bleach Her Skin White’
Insensitive race-related comments in the workplace may not be intended to cause distress, but they can nevertheless amount to racial harassment. An Employment Tribunal (ET) made that point in the case of a black nurse who was told that she needed to bleach her skin white so that patients would be nice to her (Kweyama v Central and North West London NHS Foundation Trust).
The agency nurse worked in the challenging environment of an immigration removal centre. After she was racially abused by a detainee, a colleague told her: ‘You need to get a pool of bleach and bleach your skin so that you come back tomorrow white and the patients will be nice to you.’ The colleague later again referred to her bleaching her skin in a comment that she overheard.
After the nurse launched proceedings, the ET found that it was not her colleague’s purpose to intimidate her or to create a hostile, degrading, humiliating or offensive environment for her. She did not intend the second comment to be overheard and, not having experienced racial abuse or intimidation by detainees herself, she had not understood the nurse’s difficulties.
In finding that both comments amounted to racial harassment, however, the ET ruled that they were obviously likely to cause distress and hurt. Focusing on the nurse’s perception of what her colleague said, it noted that any reasonable person would have been offended and humiliated by the words used.
The nurse suffered further racial harassment when a manager expressed concern about her mental health. Although that comment was not overtly connected to her race, it was nevertheless both race-related and unwanted. The nurse perceived the comment as offending her professionalism, violating her dignity and creating a humiliating atmosphere for her.
All three comments, together with a statement by the manager that her agency role would be terminated, were also detrimental treatment constituting victimisation. If not agreed, the amount of compensation payable to her by her NHS trust employer would be assessed at a further hearing.
Expert employment law advice is invaluable when incidences of racial harassment are alleged. Contact our team for guidance.
Time Limits in Employment Cases – Any Delay Could Stymie Your Claim
Time limits are strictly applied in employment cases and any failure to abide by them can place even an otherwise meritorious claim in real jeopardy. That was certainly so in the case of a call centre worker who lodged a sexual harassment complaint a single day later than she should have done (Concentrix CVG Intelligent Contact Ltd v Obi).
Following a hearing, an Employment Tribunal (ET) found that the woman had, on three separate occasions, been sexually harassed by her line manager. He had, amongst other things, pulled her waist during a post-Christmas party and told her that she looked sexy. Her employer, however, contended that her claim had been lodged outside the three-month time limit which applies to such cases and should, for that reason, be dismissed.
The ET ruled that the incidents represented a course of conduct extending over a period and that the time limit should thus run from the date on which the last of them occurred. Even on that basis, it found that she had lodged her claim one day too late. Given the brevity of the delay, however, it ruled that it was just and equitable to extend the time limit. In doing so, it noted that, if no extension were granted, the woman would be denied any remedy.
Ruling on the employer’s challenge to that outcome, the Employment Appeal Tribunal (EAT) rejected arguments that, in the absence of any evidence at all as to why the woman had not presented her claim form sooner than she did, the ET was bound to refuse to extend time.
In upholding the appeal, however, the EAT found that the ET had erred in principle in its approach to the question of whether the delay had caused prejudice to the employer in defending the claim. The employer contended that it faced forensic difficulties in that the two earlier incidents were historical in nature and memories of them would have faded. It also pointed out that a potentially important witness had left its employment and was no longer available to give evidence.
The ET’s error, the EAT found, was to focus solely on the consideration of what, if any, forensic prejudice was caused by the complaint having been made one day out of time. It failed to take into account its own previous findings concerning forensic prejudice in relation to one of the earlier incidents. The EAT’s written ruling did not include any directions regarding the future progress of the woman’s claim.
For expert advice on the time limits that apply to employment claims, contact <<CONTACT DETAILS>>.
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These articles are provided for general interest and information only. They do not constitute legal advice. Whilst every effort is made to ensure that the content accurately reflects the law in England as at the date of its transmission, no liability is accepted for any loss or damage arising from any act or omission resulting from any information contained herein.