Can an employee blow the whistle about a
cramped workstation?
They might be able to according to the EAT
in Morgan v Royal Mencap Society, but only
if the employee can demonstrate that they
reasonably believed that their complaints
were in the public interest. This can only be
determined at a full hearing.
Facts
Ms Morgan worked for the charity for almost
three years. During her employment she
injured her knee and complained on three
separate occasions to senior staff that her
working area was cramped and that this was
adversely affecting her knee. We don’t know
how Mencap reacted to these complaints but
clearly, whatever steps they took were not to
Ms Morgan’s satisfaction and, she resigned
claiming both constructive unfair dismissal and
that she had suffered a detriment as a result of
having made a protected disclosure.
In order to get past the post on her whistleblowing
complaint, she had to demonstrate
that she had a reasonable belief that the
disclosure of wrongdoing (in this case her lack
of desk space) was in the public interest. When
pressed on this point, she said that she believed
the public would be “shocked” by her working
conditions and that these presented a health
and safety risk to others. She then went on to
say “the public ought to know about charities
that behave in this manner”. Mencap, not
unreasonably, thought that her complaint could
not be said to be in the public interest as it only
affected her and it made an application to
strike out this part of her claim at a preliminary
hearing.
Mencap was initially successful and Ms Morgan
appealed to the EAT.
Decision
The EAT said that the case should proceed to
a full hearing to determine if Ms Morgan did
reasonably believe that her complaints were
in the public interest. This is because there is a
high threshold which must be satisfied before
a claim can be struck out before hearing any
evidence.
Tips
This case again demonstrates that tribunals
will not strike out claims, of even seemingly
hopeless cases, at an early stage. Tribunals
will be expected to test by evidence whether
the individual bringing the claim a) did believe
that their disclosure was in the public interest
and b) whether that subjective belief was a
reasonable one to hold. We can only hope
that common sense prevails when the case is
heard. The “public interest” test introduced in
2013 to prevent individuals being able to bring
whistle-blowing claims on the basis of a breach
of their own contractual rights is creaking at the
joints. The case of Chestertons, which involved
an estate agent who complained that profit
figures had been manipulated to reduce the
bonus paid to him and around 100 of his peers,
is due to be heard by the Court of Appeal in the
autumn. We hope that the Court of Appeal will
take the opportunity to clarify what is meant by
the “public interest”.
Whistle-blowing – when does an allegation
amount to a disclosure?
When it conveys information according to
the EAT in Kilraine v London Borough of
Wandsworth. It does not matter what “label” is
attached to the disclosure.
Facts
Ms Kilraine alleged that she had been
dismissed as a result of making four protected
disclosures. She complained in an email to a
senior member of staff that the local authority
was failing in it legal obligations towards her
in respect of bullying and harassment and in
particular “numerous incidents of inappropriate
behaviour”. She also alleged in a separate
complaint that her line manager had failed to
support her when she had raised a safeguarding
issue.
The tribunal found that these were allegations
rather than disclosures of information and did
not qualify as protected disclosures. Ms Kilraine
appealed.
Decision
The EAT dismissed the appeal and said that Ms
Kilraine had not gone far enough to establish
that she had made protected disclosures. In
relation to the complaint about discrimination,
it said that this was an allegation; the term
“inappropriate” was too vague to clearly include,
say, a criminal offence or a failure to comply
with a legal obligation. The other complaint
did convey some information about what
happened during the meeting, but she had not
shown that her line manager was in breach of
any legal duty or that she reasonably believed
that there was such a duty.
Tips
This case demonstrates that employees who
wish to gain the protection of the whistleblowing
legislation must be in a position to
point to a particular disclosure. Alleging that
this or that is wrong is not enough without
corroborating evidence. In this case, the
employee made a number of complaints, but
only sought to badge these as “disclosures”
after she was made redundant.
Are employers obliged to continue childcare
vouchers under a salary sacrifice scheme
during maternity leave?
Not according to the EAT in Peninsula Business
Services v Donaldson.
Facts
Peninsula offered its staff the ability to purchase
childcare vouchers by way of a tax efficient
salary sacrifice scheme. However, it imposed
a condition that employees could not use this
during maternity leave.
Ms Donaldson wished to join the scheme but,
as she was pregnant, she believed that the
condition of entry was discriminatory and she
refused to join. She alleged that the scheme
conditions were indirectly discriminatory on
the grounds of sex and that she had suffered a
detriment for asserting her right to maternity
leave.
In order to succeed with her detriment claim,
Ms Donaldson had to show that childcare
vouchers were a non-cash benefit and as such,
had to be maintained during maternity leave as
only remuneration could be suspended during
this period.
The tribunal held that the vouchers were noncash
benefits and should be paid to women on
maternity leave. Peninsula appealed.
Decision
The EAT reversed the decision and allowed the
appeal. It found that childcare vouchers did
amount to remuneration and as such employers
do not have to provide them during maternity
leave. It found that a salary sacrifice scheme,
in effect, diverted salary. The money was still
earned but was earmarked for another purpose.
Tips
HMRC guidance provides that salary sacrifice
schemes amount to non-cash benefits and
therefore should continue during maternity
leave. The EAT said that this was not correct.
This decision is to be welcomed. Continuing
vouchers during maternity leave produces a
windfall benefit for the employee and imposes
a cost on the employer. However, the EAT
admitted that its interpretation was driven by
a belief that requiring employers to pick up the
tab for childcare vouchers during maternity
leave would discourage employers paying SMP
(rather than enhanced payments) from offering
the scheme.
It is likely that these issues will be subject to
further appeal. The EAT’s analysis is vulnerable
to attack and employers wishing to withdraw
childcare vouchers during maternity leave
should take advice before changing their policy.
Is it fair to dismiss an employee for gross
misconduct for pretending to be ill?
Yes on the facts of Metroline West v Ajaj, EAT.
Facts
Mr Ajaj was a bus driver and, having slipped
at work, was signed off because of alleged
difficulties walking and sitting for long periods.
He was seen by the company’s occupational
health advisor who said that he was not fit for
work and he also was referred for physiotherapy
by his GP.
His employer became suspicious about the
seriousness of Mr Ajaj’s injuries and covertly
recorded him. A number of meetings took
place, during which Mr Ajaj maintained that he
was not yet well enough to return to work as
a bus driver. During one meeting, Mr Ajaj was
shown covert footage taken of him walking
and shopping and he was asked to provide an
explanation because his employers believed
that the footage indicated that he was not as
incapacitated as he claimed to be.
He was subsequently dismissed for making a
false claim for sick pay, misrepresenting his
ability to attend work and for making a false
claim of an injury at work. This amounted to
gross misconduct.
He claimed that he had been unfairly dismissed
and the tribunal, at first instance, agreed.
Metroline appealed.
Decision
The EAT also found that the dismissal was fair.
On the facts, the tribunal had been entitled
to believe that Mr Ajaj had misrepresented
his injury. Pretending to be ill amounts to
dishonesty and is a fundamental breach of the
implied duty of trust and confidence between
employer and employee.
Tips
Generally, employers are expected to accept
a Fit Note at face value and must have a
reasonable belief that an employee’s illness is
not genuine before deciding to dismiss. This will
require a reasonable investigation.
Even if you have reasonable doubts about
an employee’s condition, you must not make
assumptions or immediately accuse the
employee of lying. If you do so, they may
claim disability discrimination or resign and
claim constructive unfair dismissal and, if you
dismiss them, they may be able to claim unfair
dismissal.
For long term conditions, it is helpful to obtain
a medical report which you may be able to use
to challenge the employee’s assertion that
they remain too ill to work. Generally, it is better
to obtain a report from a health professional
not treating the employee who can review
the employee’s condition objectively through
impartial eyes, rather than from the employee’s
own GP.
For short term absences a return to work
interview will give you the opportunity to quiz
the employee a bit more about the nature
of their illness and ask them to explain any
inconsistences. However, this case makes it clear
that if you reasonably believe the employee
is lying about their illness, they can be fairly
dismissed for gross misconduct.
Does raising performance issues with an
employee suffering from stress and on sick
leave breach the implied duty of trust and
confidence?
Yes on the facts of Private Medical
Intermediaries Ltd and others v Hodkinson, EAT.
Facts
Miss Hodkinson was a director of sales. She had
a thyroid dysfunction and was considered to
be disabled and had time off due to her illness.
After a period of sickness leave she returned to
work on reduced hours. A short time later she
went off sick again with work related depression
and anxiety. She believed that this had been
caused by bullying by her line manager and
another manager and her Fit Note cited this as
a cause of her depression. The CEO then wrote
to Miss Hodkinson to ask her if she wished to
raise a grievance. She wrote back indicating that
she was too upset to communicate properly
without breaking down and was “distraught”
at the treatment she had received from her
managers.
The CEO took legal advice and sent a further
letter to Miss Hodkinson suggesting that they
meet soon at a neutral location. The letter
indicated that he had spoken to the managers
to find out what had gone wrong. It also set out
six areas of concern about her performance and
commitment he wanted to discuss with her.
Miss Hodkinson resigned and claimed
constructive unfair dismissal (amongst other
claims).
The tribunal found that she was over sensitive
and prone to exaggeration and had not been
bullied. It also found that the letter was not part
of a campaign to drive her out (as had been
suggested). The company did have genuine
concerns, but all of these had previously been
brought to her attention. However, a reasonable
employer would have known that the letter
would have caused her distress and she was
entitled to treat it as a repudiatory breach; her
dismissal was therefore unfair. The company
appealed.
Decision
The EAT upheld the finding of constructive
unfair dismissal. The letter did not raise serious
issues and many of these had been dealt with
and were closed.
Tips
Maintaining appropriate contact with an
aggrieved employee on sick leave is a common
problem for employers. This case does not
mean that it is never appropriate to raise
performance concerns with an employee
absent on work related stress, but care should
be exercised. It will be relevant to consider how
long the employee is likely to be off work and to
consider whether the allegations can wait until
the employee returns.
The key message though is not to conflate a
grievance with separate performance issues
(unless the grievance is about how performance
is being managed). In most cases it is better
to resolve the grievance before any potential
performance or disciplinary issues.
Is a warning given for imposing
religious views on colleagues an act of
discrimination?
Not according to the EAT on the facts of
Wasteney v East London NHS Foundation Trust.
Facts
Ms Wasteney is a practising Christian and held
a senior role within the mental health team at
the Trust. She launched an initiative in which
volunteers from her church provided religious
services at the centre where she worked.
However, these were suspended following
concerns that improper pressure had been put
on staff and service users about Christianity.
Ms Wasteney was given informal advice about
the need to ensure that there were appropriate
boundaries between her spiritual and
professional life.
Sometime later a Muslim colleague made
a complaint about Ms Wasteney. They
complained that she had been invited to church
events, sent religious books and told that she
needed to let Jesus into her life. The colleague
believed that Ms Wasteney was “grooming” her
and had also laid hands on her during prayers.
The Trust considered that Ms Wasteney had
failed to maintain professional boundaries
and was issued with a final written warning,
which was reduced to a first written warning
on appeal. She alleged that she had been
discriminated against on the grounds of her
Christian religion.
The tribunal rejected her complaints. It
acknowledged that the context of the
disciplinary action was related to her religious
beliefs, but the warning was issued because her
beliefs blurred with her professional boundaries
and she had placed improper pressure on a
junior member of staff. She appealed to the
EAT, arguing that the tribunal had failed to
take sufficient account of her right under the
European Convention of Human Rights to
manifest her beliefs.
Decision
The EAT upheld the tribunal’s decision. This
was not a case involving consenting adults. The
colleague did not consent and Ms Wasteney
had placed improper pressure on a junior
colleague.
Tips
This case is the latest in a line of cases which
have found that proselytising at work is,
generally, inappropriate. Employers can properly
take disciplinary action against an employee
for improperly manifesting a religious belief but
should not do so for simply manifesting that
belief.
Spring 2016
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