“Mum’s the word…”

JonathanGolden

 

Silent Witness is a TV show where key characters actively search for forensic evidence.  But don’t take this approach in an Employment Tribunal!

I was recently part way through a case where one of my witnesses thought it might be a good idea to find some extra evidence overnight to assist the Judge.  He knew he wasn’t supposed to discuss the case with us or the other witnesses, but didn’t think that he also had to keep mum generally while under oath.  The other side found out what happened and, the next day, the witness received a royal rebuke from the Judge, who made it clear that, when giving evidence, a witness must not speak to anyone about a case.

This particular judge was benign by giving only a warning.  It could have been worse:  claims by a Ms. Chidzoy against the BBC for whistleblowing and sex discrimination were struck out entirely when it was found out she had discussed her case with a journalist during a break while  still giving evidence. The Employment Tribunal weren’t interested in what had been discussed; it was the mere fact that she had discussed her case was enough for it to conclude that her conduct was unreasonable.  And that was the end of that.

This is part of the wider issue that, when under oath, witnesses must do what a court or tribunal orders, and answer truthfully any questions put to them.  Not doing this is contempt of court.  In fact it was reported recently that a Mr. Atwal, a DJ from Birmingham, who had claimed that his career had been destroyed by medical treatment in 2008 and wanted damages of £837,109 for loss of future earnings and the need for care, was lying, as his music videos showed.  Having done so, he is now facing a possible 2 year jail sentence.  Another case in 2016 related to a juror who did some online research about a defendant and shared the results not evidence before the court) with other jury members, resulting in the case being abandoned; he was sentenced to 9 months’ jail, suspended for 12 months.

The reality is that, in any case, people have different versions of the same story.  A court or tribunal then has to decide who to believe.  There’s always a risk that a judge thinks that evidence given is a lie (i.e. contempt of court – which is itself punishable).  For this reason, judges will say they “prefer the evidence of A rather than B”, and if they feel B was being misleading, may add that they found B to an “unreliable witness”.  Elegant, but effective.

Getting back to the TV show, last minute forensics are not the way to succeed in litigation: cases are won by getting the evidence right long before going to court or tribunal, and then giving truthful evidence under oath and taking care not to speak about a case while under oath (which can make a weekend seem like a very long weekend).

Being a Silent Witness can be tough.

And here is the news from abroad…

WynLewis

Are you liable if you dismiss an employee working abroad?

Once again the Courts have gently moved the goalposts that determine whether someone working abroad can bring an unfair dismissal or discrimination claim in the UK Employment Tribunals.  Is the recent Olsen v. Gearbulk case below the final position (or just the latest nudge)?   Or will there be more nudging to come?  The last word probably hasn’t yet been written.

I advise quite a few UK organisations that have an international brand and a global reach.  This doesn’t mean that they export products to the rest of the world.  It means that their staff work abroad in different parts of the world, usually on UK contracts, but only rarely come to the UK, even though the UK is perceived by them (and the colleagues they work with abroad) as “home”.

Several of these organisations are charities or NGOs; the others are banks, insurers, law firms and other large commercial organisations.  Superficially they don’t have much in common.  But what they do have in common is that they never know if they’re at risk of having a UK claim brought against them after terminating the employment of an employee working abroad; nor is there a definite answer to that dilemma.

These were the main facts of the Olsen v. Gearbulk case:  Mr Olsen was Danish; he lived in Switzerland; he was an employee of a Bermudian company; he had been offered, but rejected a UK law contract that would have based him in the UK; instead he had a contract governed by Bermudian law to work in Switzerland; he managed about 100 employees internationally including up to 20 in the UK; he spent more time in the UK than in any other international office and was paid in Sterling; but he structured his time so that he worked for fewer than 90 days in the UK and so wasn’t resident for UK income tax.  Despite this, when he was dismissed (he said following a whistleblowing disclosure) he brought an unfair dismissal claim in the UK.  But the ET and the EAT held that there was an insufficiently strong connection with the UK and so his claim was rejected.

That’s a no-brainer” you might be thinking.  However no one set of circumstances is identical to the next.  So no one decision will necessarily be simpler or more difficult than the next.  Consequently employers need better guidance, even though there has been a string of cases that have developed different tests to decide whether a UK ET has jurisdiction to deal with dismissals or discrimination occurring abroad.  This blog is no place to analyse those cases in detail.  But here is a possible approach for starters:

–    the Lawson v. Serco tests: does the employee ordinarily work in GB?  Does a peripatetic employee ordinarily work / get paid in / pay tax in GB?  Can the employee’s work abroad be regarded as being in a British enclave (shades of Rupert Brooke’s “corner of a foreign field”); is there an equally strong connection with GB and with British employment law? (2006)

–    the Duncombe test:  does the employment have much stronger connections with GB and with British employment law than any other system of law? (2011)

–    the Ravat test:  does the employment relationship have a stronger connection with GB than with a foreign country where the employee works and is there a sufficiently strong connection with the UK that Parliament would have regarded it as appropriate to hear the claim? (2012)

–    the van Winkelhof test:  is it possible to identify factors that are sufficiently powerful to displace the territorial pull of the place or work abroad? (2012)

All of the above tests are, admittedly, a bit vague.  That said, they have a pragmatic “you’ll know an elephant when you see one” approach that most employers will be capable of applying.  So if the answer to any of the “abroad” tests outlined above is “yes” you should be assuming that there is a risk of a UK ET claim and head in the direction of a Settlement Agreement.

In passing, it’s also wise to ask another question:  are any “in-country” employment rights triggered abroad in the location where a terminated employee has been working?  If you get that wrong, an employer can end up paying substantial damages, because far more countries than you might imagine have highly developed employment law rights with compensation entitlements.  Don’t successfully avoid or minimise UK liability but end up being liable abroad.

Too many tweets …

CarolineLeaver

.. made for a fair dismissal in the case of Game Retail Ltd v Laws – although it was the content and context of Mr Laws’ tweets that were the problem, not their number.

This was one of them:

This week I have mainly been driving to towns the arse end of nowhere… shut roads and twats in caravans = road rage and loads of fags smoked’.

“Not so bad”, you might say.  “I’ve heard worse on daytime TV”, you might also say.

And an Employment Tribunal seems to have taken a similar view, when it decided that Mr Laws’ more offensive and expletive laden tweets (28 of them) were misconduct, but not gross misconduct, so Game Retail’s decision to summarily dismiss Mr Laws fell outside the band of reasonable responses.

The Tribunal’s reasoning was:

  • The tweets were posted for private use and it had never been established that any member of the public or employee of Game Retail had access to Mr Laws’ tweets or associated him with Game Retail.
  • Game Retail’s disciplinary policy did not state that inappropriate use of social media could result in dismissal without notice.

It seems, however, that the Employment Tribunal had failed to understand how Twitter works.  The point was that, although Mr Laws’ Twitter account was a personal account, he had no privacy settings, so his tweets were visible by default, he could be seen by staff and potential customers, and 65 Game Retail stores were following Mr Laws (although whether an employer should be following a member of staff is another issue…).

As a result the Tribunal were criticised for asking the wrong question.  Instead of asking whether the tweets had offended anyone, the correct question was whether Game Retail had been entitled to reach the conclusion that the tweets might have caused offence.

The answer to that question (based on the above example of one of Mr Laws’ tweets) was “yes”.   The factual points were (i) the Tribunal had found that the tweets were offensive, (ii) a manager had reported them, and (iii) 65 stores had access to them.  Therefore, it was inconsistent for the Tribunal to conclude that the reputational risk to the business was only theoretical.

Consequently Mr Laws’ dismissal was fair – which will be welcome news for those employers who invest considerable time and money in reputational management and CSR, and who will prefer not to have those efforts undermined by careless tweeting.

So is Facebook the same?  Interestingly, Mr Laws’ case was decided differently to a previous High Court ‘Facebook’ case (Smith v Trafford Housing Trust) in which an employer had not been entitled to characterise the posting of views about gay marriage on an employee’s Facebook wall as misconduct.   This may be because Twitter has a more public nature than Facebook, making dismissals relating to offensive tweets easier to defend for employers than a similar Facebook status.

This case is a reminder that businesses should review their social media policies and ensure that Twitter is included and that their staff understand what is acceptable and what will be misconduct.

A word of warning – if any business believes that Twitter isn’t relevant, consider this: in Q1 of 2007, 400,000 tweets were posted, whereas in 2012 over 100 million users were posting some 340 million tweets per day.  If you are an employer or an employee don’t get caught out…

Virtual Reality and ET collide

WynLewis

The Employment Tribunal system has brushed with Virtual Reality: you may be liable for more employees than you think. How?

The rights of overseas staff have taken up many column inches in recent years; employees in virtual reality less so. Recently a problem arose about someone who was both overseas and virtual; and this wasn’t the subject of a science fiction novel.

The issue is this: how far removed (physically or otherwise) from Great Britain does someone have to be before they lose their right to protection from unfair dismissal or discrimination? The answer is: nobody really knows for sure.

Since 2012, the test has been something like this: “where an employee’s place of work is not GB, is the connection with GB sufficiently strong that Parliament would reasonably have intended that an employment tribunal should deal with a particular employee’s claim?”.

That’s quite vague; also the cases have usually dealt with people who spent at least some of their time working in the GB office of the employer against whom they were bringing a claim, so the outcomes have been less than consistent.

Modern work practices mean that you don’t have to be in the office; sometimes not at all. In fact you don’t really need to be in the same country, so long as you have a decent Internet and phone connection that keep you in touch.

In this case, Mrs Lodge (an Australian citizen) was employed from February 2008 by two UK charities (Dignity & Choice In Dying and Compassion In Dying) to work in the UK as their head of finance. But from January 2009 she moved to live and work in Australia (in the same role, doing everything remotely for the same UK employers, but paying Australian tax and pensions and only visiting the UK three times each year – for 2 weeks and for 2 separate days) for the next 5 years, until she resigned in June 2013 having been told she would be the subject of a disciplinary process after a grievance.

That, from a GB perspective, was so remote working as to be seriously virtual.

Strangely (which was the oddest aspect of this case) the Employment Tribunal found that it wasn’t reasonable to assume that Parliament would have intended Mrs Lodge to be able to claim unfair dismissal in GB (even though it was quite happy to deal with her breach of contract claim). Sensibly, the Employment Appeal Tribunal disagreed about the unfair dismissal issue: it said that Mrs Lodge was like someone who had been posted abroad for the benefit of the home employer and that, because everything was managed from GB, she could claim unfair dismissal.

So what’s the lesson here?

It is that central (i.e. GB-based) management of overseas staff – especially if there is no regional or in-country management, and if issues like discipline and grievances are managed from GB, especially if there are no local, in-country employment contracts – will enable remote workers to bring claims; and could, in theory, enable people who have never even been to GB to do so too.

And the practical steps to take?

If this is a risk, then the practical steps are to introduce local management and delegated authority; to have a local contract; and to make that contract subject to local law (but that, in itself, has problems if you aren’t familiar with what that means and don’t have competent local lawyers). Although even this is unlikely to sever any link between the GB and “roving” regional personnel.

I’ve dealt with several of these cases for global charities. They need careful preparation before effective structures are set up in a way that exposes a GB employer to the least potential liability.

You did, You didn’t, You did, You didn’t

WynLewis

Varying terms and conditions of employment can be a risky business.
How often have you, as an employer, wanted your employment terms and conditions to be just a little bit different?

How often has this wish led you to decide that you needed to change those terms and conditions, but were concerned about how to go about doing it effectively?

Faced with this situation, some employers just “do it” and see what happens. It’s not a particularly bad ploy if the changes are modest; and it’s quite useful if you have a “we can change your terms and conditions” provision in your contracts. The reason is that if nobody objects to the change before or after their next salary has been paid, you’ve got a good chance that it will stick.

But you won’t want to do this if the change is more significant and involves something that isn’t clearly a policy that can be modified on notice and at your discretion. The reason is that you can get legacy claims crawling out of the employment woodwork many years after a change has been made – when you thought you were home and dry on the variations front.

Not being home and dry, but up the creek and wet without a paddle, can be damaging for the bottom line and does no good for staff relations either.

The reason is that, strictly speaking, any change to a contractual provision (no matter how small, and even though you have a “we can change your terms and conditions” provision in your contracts) requires consent. And if you don’t have consent, then the person who hasn’t agreed to the change can insist on the original version applying.

Subject, of course, to a wrinkle: an employer can also make it clear that a change – one that ought to require consent – will be regarded as effective unless an employee specifically objects to it.

This little wrinkle was the subject of the recent case of Wess v. Science Museum Group, when Mrs Wess failed explicitly to object to a reduction in her notice entitlement from 6 months to 12 weeks and was then dismissed approximately 9 years after the reduction in notice was first notified to her. The Employment Tribunal held she was, indeed, entitled only to 12 weeks’ notice after all – because not only had she not objected to the change in her notice entitlement, she had also objected and assented to other (unrelated) changes that had been made at the same time.

So: if you want to make a change and it’s more than a small one, either get agreement; or notify people of that change and cross your corporate fingers to see what happens; or make a few changes and see which ones are objected to. But don’t just sneak in a big change, because the difference between the old and the new terms may come back to bite you.

“Faites vos jeux” and work those percentages!  

WynLewis

If I’d been given £1 each time a client had asked me “what are my chances?” in bringing or defending a claim or in adopting a particular strategy, I wouldn’t be writing this now; I would be rich enough to have retired.  But I wasn’t and I haven’t.

The reason is that most lawyers are programmed not to take chances and not to speculate, other than on the most unusual occasions (and then with a disclaimer, or even an indemnity).

Imagine my surprise, then, to have not one, but three recent developments where the employment tribunals have been referring to percentages and chances in their judgments!

Unfair Dismissal:  in Creditsights v. Dhunna the Court of Appeal took the broadest approach and decided that if someone (in this case a US citizen) who had been employed by a UK company but worked abroad (i.e. outside Great Britain) could establish “much stronger connections both with Great Britain and with British employment law than with any other system of law” then the chance of the UK employment tribunals having jurisdiction to deal with any dismissals was high.  So he could bring a claim.  This isn’t quite the same as adopting a 60/40% rule, but the principle isn’t far removed.

Discrimination and Unfair Dismissal:  in Fuller v. United Healthcare Services Inc.,the Employment Appeal Tribunal decided that someone (another US citizen) who had been employed by a US company but worked in the UK for about 49% of his time (i.e. a lot) hadn’t established enough of a connection with Great Britain.  So he couldn’t bring a claim.  This is an interesting example of when an actual percentage was used to justify a decision.

TUPE:  in Costain v. Armitage and ERH the Employment Appeal Tribunal decided that someone who spent 67% of his time working on a project that transferred under TUPE didn’t also transfer his employment from the outgoing employer to the incoming contractor, because the amount of time spent immediately before the transfer was just a snapshot and didn’t reflect the extent to which he was assigned to the activity overall; which, in turn, meant that someone who had spent much less of their time on the same contract might well have transferred their employment.

Confused?  I’m not surprised.  But don’t be – the fact of the matter is that there’s no rhyme or reason for the differences in approach where one of the roles of the courts and tribunals is to bring certainty to users of the court service.  Instead, just remember to take the maths as a starting point and look at the reality of a situation – there are, as you’ll know, lies, damned lies and statistics.

Watch Out! – Phones have ears…

Anna Moyle

An employee’s secret recordings of private discussions at disciplinary and grievance hearings may be admissible as evidence in subsequent tribunal hearings.

Can recordings of private discussions that have been made secretly by an employee who is taking part in a disciplinary or grievance hearing be used in an employment tribunal hearing?

In the recent case of Punjab Bank v. Gosain, the EAT decided that the answer is – “yes they can” – particularly if the panel members’ private comments were not part of their deliberations regarding the matters to be determined by them at the grievance and disciplinary hearings.

An employment tribunal has a wide discretion to determine whether evidence is admissible and, if evidence is relevant to the issues, will generally rule that it is admissible.  However, even where the evidence is relevant, it may rule that it is not admissible on grounds of public policy. In this case, the EAT balanced the general rule of the admissibility of relevant evidence against the public policy interest of preserving the confidentiality of private deliberations.

Ms Gosain resigned from the bank in 2013.  Prior to her resignation she attended a grievance hearing and a disciplinary hearing. She secretly recorded both the public discussions at the hearings and the private conversations of the panels. The comments alleged to have been made during the private conversations included the managing director giving an instruction to dismiss Ms Gosain, and the manager who heard the grievance stating that he was deliberately ignoring key issues raised by Ms Gosain as part of her grievance.

Ms Gosain subsequently disclosed the secret recordings to the bank as part of her employment tribunal claims of sexual harassment, sex discrimination and constructive unfair dismissal. The bank objected to the admissibility of the recordings of the private panel discussions, but the employment tribunal disagreed and admitted the evidence.

In its appeal against the employment tribunal’s decision to allow the recordings to be used, the bank referred to the EAT case of Chairman and Govenors of Amwell View School v Dogherty where it was held that covert recordings of an actual disciplinary hearing could be allowed, but (for public policy reasons) not of the disciplinary panel’s private deliberations.

In dismissing the bank’s appeal, the EAT held that the tribunal was right to distinguish the current circumstances from the Dogherty case and emphasised that the private comments recorded did not form part of the panel’s deliberations in respect of the matters to be decided by them.

Implications

So what can employers do?  The answer is probably “not a lot” – other than always to remind the panel members at disciplinary and grievance hearings of the risk of any of their conversations being recorded and to act accordingly.

It will still be prudent for employers to ensure that disciplinary and grievance policies contain express prohibitions against recording hearings without consent, but this would not have assisted the bank in this case, and the recordings would still have been admissible. In an age where employees can record meetings with their mobile phones, employers just need to be alert to the risk and make sure any panel discussions, private or otherwise are appropriate.