December 3, 2019

Top 5 recent workplace developments – November 2019

This is our selection of the recent developments which we think will have the most significant impact on HR practice.

1. Misconduct dismissals

The EAT has confirmed that changes to an investigator’s report into alleged misconduct made on the advice of an in-house lawyer, did not make the employee’s subsequent dismissal unfair

Mr Dronsfield, an academic, was dismissed following a number of allegations including an undisclosed sexual relationship with a student. His employer had issued detailed guidance on relationships between staff and students which Mr Dronsfield was expected to follow. However, he could only be dismissed for conduct of an "immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment."

Mr Dronsfield claimed that his dismissal was unfair after the investigators included some findings that were in his favour in an early version of the investigation report, but removed them from the final version of the report on the advice of an in-house lawyer. This included the investigators' opinion that there was no evidence that the employee's conduct was of an immoral, scandalous or disgraceful nature. The Tribunal accepted that the reason the comments were removed was to ensure that the focus of the investigation report was on the facts of the case and that the job of drawing conclusions from those facts was left to the disciplinary panel.

The EAT confirmed that the fact that the draft investigation report had been amended in this way did not make the subsequent dismissal unfair. No undue pressure had been put on the investigators to change the report nor had any evidence been withheld. It was appropriate for the in-house lawyer to advise that the investigation report should be restricted to factual findings and a conclusion as to whether there was a disciplinary case to answer, and the investigators had simply accepted that advice. It was for the disciplinary panel to decide whether the employee was in fact guilty of misconduct under the employer's rules.

Practical point

This decision is a useful reminder of the limits of the investigator’s role. It also provides helpful clarification that if a draft investigation report is altered on the recommendation of an internal or external solicitor for an appropriate reason - the dismissal may still be fair if the employer has a fair reason to dismiss and follows a fair process.

However, if the lawyer or HR becomes so involved in the investigation that an investigatory report can no longer be said to be the product of the investigator, then there would be a risk that a subsequent dismissal may be found to be unfair.

For a detailed update on this decision, see Tips for HR and in-house lawyers dealing with investigations into potential misconduct

Dronsfield v The University of Reading

2. Vicarious liability – third party harassment

An employer is only liable for the harassment of an employee by a third party where the employer's action or inaction is related to the relevant protected characteristic e.g. race or sex.

Mr Bessong, a black mental health nurse, sustained a significant facial injury during an attack by a patient. Although the NHS Trust's incident report form made no mention of racism, it later emerged that the patient had a history of racist behaviour towards black members of staff.

The EAT ruled that the NHS Trust was not liable for the racial harassment of Mr Bessong by a patient, because its failure to take adequate steps to prevent racial harassment in the workplace was not related to race.

Practical point

There was some controversy around the removal of the third-party harassment provisions from the Equality Act, particularly in light of the extent of third-party sexual harassment at work that has come to light under the #MeToo movement, and it seems likely that employer's liability for harassment by third parties will be re-introduced at some stage.  

Regardless of whether this may change in the future, there are a number of steps that employers can take to help tackle harassment of their staff by third parties, including:

  • having a well-publicised harassment policy, that makes clear that allegations of harassment of staff by third parties will be taken seriously and appropriate action taken in relation to them
  • ensuring that managers and HR are trained on how to deal with allegations of harassment so that they are addressed effectively and handled sensitively for everyone concerned
  • setting the right tone and culture in your organisation, so that employees feel able to raise concerns and everyone understands what behaviour is appropriate and acceptable.

For a detailed update on this decision, see Will third-party harassment laws be strengthened? If so, what will this mean for employers?

Bessong v Pennine Care NHS Foundation Trust

3. Indirect discrimination on the grounds of religion or belief

The Court of Appeal dismissed a claim that an employee's belief in the sanctity of copyright was a protected philosophical belief.

Employees are protected against discrimination because they have a religious faith or a philosophical belief, as well as because they don't. A philosophical belief must meet certain conditions in order to be protected including being a weighty and substantial aspect of human life, worthy of respect in a democratic society and not conflicting with the fundamental rights of others.

Ms Gray was asked to sign a standard contract clause which specified that her employer, Mulberry, would own the rights to any work she completed during her employment. She refused on the basis that this would impact on any work she did in her own time as a writer and filmmaker. Mulberry agreed to amend the clause so that only work carried out in relation to its business would be covered, but Ms Gray still refused to sign and was subsequently dismissed.

Ms Gray brought a claim for direct and indirect discrimination on grounds of belief, i.e. her belief in the sanctity of copyright and that people should own and profit from their own work. However, the Court of Appeal decided that it was irrelevant whether or not her belief in the sanctity of copyright amounted to a protected belief under the Equality Act. This was because it was not her belief that put her at a disadvantage, i.e. that lead to her dismissal - it was her refusal to sign the copyright agreement on the basis that it did not protect her interests.

In relation to the indirect discrimination claim, Ms Gray had failed to show group disadvantage – although her belief was widely held, she had failed to establish that any of the employer's other employees had suffered a disadvantage because they shared her belief.  

Practical point

Most religion or belief claims are brought as indirect discrimination claims and, except in the most obvious cases, the employee will need to show group disadvantage. The employee must show that the employer's provision, criterion or practice puts others sharing that belief at a disadvantage, compared to those who do not share that belief.

The Court did not need to consider whether the belief would amount to a philosophical belief in this case. In another recent case, a tribunal found that vegetarianism was not a philosophical belief but hinted that veganism may well be. It will be interesting to see whether a tribunal, which will be considering early next year whether ethical veganism is capable of being protected as a philosophical belief, agrees.

Gray v Mulberry Company (Design) Ltd

4. Legal advice privilege

The Court of Appeal considered whether legal advice privilege applied to a leaked email concerning a redundancy exercise.

Legal advice privilege applies to confidential communications which pass between a client and their lawyer, where they have come into existence for the purpose of giving or receiving legal advice about what is the appropriate action to take in the relevant legal context. However, privilege can be lost where the communication comes into existence for the purpose of furthering a criminal or fraudulent act - known as the "iniquity principle".

Mr Curless was a senior lawyer at Shell and had brought a tribunal claim alleging disability discrimination. Subsequently, following an extensive redundancy programme, he was made redundant. He then brought a second claim, alleging his dismissal for redundancy was a sham and the reason for his dismissal was that he had brought a claim against the company – relying on an email between lawyers at the company which he had been sent anonymously, and an overhead conversation in a pub. Shell said that the email and conversation were privileged.

The Court of Appeal ruled that there was no dispute that Shell was engaged in a redundancy process, and the advice was simply about whether and how the redundancy process could be applied to Mr Curless. The Court said it was “the sort of advice which employment lawyers give ‘day in, day out’ in cases where an employer wishes to consider for redundancy an employee who (rightly or wrongly) is regarded by the employer as underperforming”. And there was nothing to suggest it would have been anything other than conventional advice. As neither the advice nor the conversation was found to be underhand and iniquitous, they remain privileged and, subject to an appeal, Mr Curless cannot rely on them in court.

Practical point

This decision confirms that the threshold for waiving legal advice privilege is high and will only be allowed in exceptional circumstances. For the iniquity exception to apply, it must be shown that the privileged material came into existence in the pursuit of an unlawful scheme.

This case was unusual in that the legal advice was leaked. Confidentiality is a key feature of privilege, and employers should take steps to ensure that confidentiality is maintained. So it's important to restrict the number of people the advice is shared with - the wider it is known and the more it is discussed, the less likely it is that it will remain privileged.

For a detailed update on this decision, see Legal advice privilege – where are we now?

Curless v Shell International Limited

5. Tackling sexual harassment: new guidance from the EHRC - do's and don'ts

Recent guidance from the Equality and Human Rights Commission (EHRC) means employers should urgently consider some important changes to their standard settlement agreements and termination processes, particularly where there are discrimination and harassment allegations.  

Practical point

Some key do's and don'ts include:

  • Don't use clauses which prevent a worker from speaking up about discrimination or harassment as standard - consider on a case by case basis whether confidentiality clauses are needed, or if they can be reduced to the minimum necessary
  • Do carve out from confidentiality clauses permission for the worker to have discussions with certain individuals or organisations such as police, medical professionals, immediate family members (provided they are also asked to keep the matter confidential) and potential employers where necessary to discuss how employment ended
  • Don't treat the settlement agreement as the end of the matter: continue to investigate discrimination allegations, take any reasonable further steps to address the discrimination and take reasonable steps to prevent it happening in the future