July ByteSize Employment Law

What is it safe to say when giving a reference?

The High Court has recently provided some useful guidance which will assist employers with the often tricky task of providing a reference for a former or departing employee.

The Court looked at the duty of care imposed on reference writers to ensure that the references they provide are true, accurate and fair and suggested that common features of that duty are:

• To conduct an objective and thorough appraisal of facts and opinion, particularly negative opinion, whether those facts and opinions emerge from earlier investigations or otherwise;
• To take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion;
• Where an opinion is derived from an earlier investigation, to take reasonable care in considering and reviewing the underlying material so that the reference writer is able to understand the basis for the opinion and be satisfied that there is a proper and legitimate basis for the opinion; and
• To take reasonable care to ensure that the reference is fair and is not misleading either by reason of what is not included or by implication, nuance or innuendo.

Reference writers should also bear in mind the ease with which ex-employees can obtain a copy of a reference provided to a prospective employer.

This is done by making a data subject access request to the prospective employer who will obliged to provide a copy of the reference.

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Last straw can revive previous breaches in constructive unfair dismissal claims

The Court of Appeal’s recent decision in the case of Kaur v Leeds Teaching Hospitals NHS Trust reviewed the principles of constructive unfair dismissal in “last straw” cases.

“Last straw” cases are where an employee relies on a series of acts of their employer to base a claim for constructive unfair dismissal, resigning following the final act of the series described as the last straw.

This is in contrast to constructive unfair dismissal cases where an employee resigns following a single serious act that alone amounts to a fundamental breach of their contract of employment.

In this case, the Court of Appeal addressed the effect a last straw act, that leads an employee to resign, has on previous acts by the employer.

Together, these acts were serious breaches of the implied term of trust and confidence to entitle an employee to resign, but where the employee had at that stage chosen not to resign, and had decided to continue with their employment.

The Court held that where an employee resigns as a result of a last straw, the previous acts of the emploter are “revived” and can be relied upon in addition to the last straw act.

This applies even though the employee had previously waived these breaches and affirmed the contract by remaining in employment.

This case highlights to employers that where there have been past incidents that have amounted to a fundamental breach of trust and confidence, but which did not lead the employee to resign, care should be taken to avoid any further incidents that an employee could rely on as a “last straw”.

This would lead to the reviving of previous breaches, enabling them to be used as the basis for a constructive unfair dismissal claim.

Case referred to: Kaur v Leeds Teaching Hospitals NHS Trust

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Context important when considering claim of harassment 

The Employment Appeal Tribunal (EAT) upheld the decision of the employment tribunal in the case of Bakkali v Greater Manchester Buses (South) Ltd that a Muslim employee, Mr Bakkali, had not suffered harassment related to his religious belief when a colleague, Mr Cotter, asked him if he still supported Islamic State.

The employment tribunal held that although Mr Cotter’s conduct was unwanted and humiliating, when viewed in context it was not related to the religion.

The reasoning relied on by the employment tribunal was that whilst Mr Cotter’s remark supported an inference of discrimination, as it suggested a link between being a Muslim and supporting Islamic State, the remark had to be considered in context.

In a previous conversation Mr Bakkali had been telling Mr Cotter about a report by a journalist portraying Islamic State favourably and, in light of this, the employment tribunal concluded that Mr Cotter’s comment had been made because of this previous conversation and was not related to Mr Bakkali’s religious beliefs.

Although Mr Bakkali was unsuccessful with his claim, this case is a reminder that conversations between colleagues, which some employees may believe amounts to no more than “banter”, can amount to harassment if the comments are unwanted.

These comments can also have the purpose or effect of violating another employee’s dignity or creating a hostile, degrading or humiliating or offensive environment, whilst also relating to a protected characteristic.

Case referred to: Bakkali v Greater Manchester Buses (South) Ltd

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A fair procedure is critical even where dismissal relates to an employee’s right to work

In the case of Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal (“EAT”) held that an employee should have been afforded the right to appeal against his dismissal.

Dominos had not offered Mr Afzal the right of appeal, after dismissing him on the basis that he could no longer evidence his ongoing right to work in the UK, after his time-limited leave to work in the UK had expired.

The Employment Tribunal had held that Mr Afzal’s dismissal had been fair on the basis of some other substantial reason, namely Dominos’ genuine belief that Mr Afzal’s continued employment was illegal.

The Tribunal determined it was reasonable to hold this belief given the lack of evidence to show Mr Afzal had an ongoing right to work in the UK.

The Tribunal held, incorrectly, that the fact that Mr Afzal was not offered an appeal was not unfair on the basis that there was nothing to appeal against.

The EAT disagreed on the basis that an appeal could have established, most likely due to the emergence of new evidence, that Dominos’ belief that Mr Afzal did not have the right to work in the UK was wrong and potentially have led to his reinstatement.

Employers are understandably nervous when dealing with disciplinary or dismissal processes where they believe that an employee does not have the right to work in the UK.

Often employers face the difficult choice, where there is no clear evidence whether an employee has the right to work or not, of acting quickly and risking the possibility of tribunal claim or continuing to employ the individual and risk the potentially significant civil and criminal penalties the home office can impose for employing illegal workers.

This case shows that employment tribunals are aware of this dilemma and whilst understanding the need for urgency, will still expect to see a dismissal process which is compliant with the ACAS code of practice and, accordingly, includes the right of appeal.

Case referred to: Afzal v East London Pizza Ltd t/a Dominos Pizza

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A warning given for 60 days’ sickness absence held to be discriminatory

A disabled employee was held to have been subject to disability discrimination when she was given a 12-month written warning for sickness absence in DL Insurance Services Ltd and O’Connor.

The warning was given in relation to 60 days absence, which was six times the relevant trigger point in the employer’s absence policy.

The majority of the 60 days of absence had been related to the claimant’s disability.

The key issue in the case was whether the employer could justify the warning given to the claimant, which was unfavourable treatment arising from the claimant’s disability-related absence, as a “proportionate means of achieving a legitimate aim”.

The tribunal accepted that the employer had the legitimate aims of ensuring adequate attendance levels and improving the claimant’s attendance levels but held that the award of the warning was not proportionate.

When assessing the issue proportionality, the tribunal took into account that the employer had not obtained occupational health advice in breach of its own policy and that the employer’s witness evidence could not explain how the written warning could have improved the Claimant’s absences.

The employer’s evidence was to rely on the generalisation that experience absence warnings have the effect of reducing an employee’s absence.

This case is a reminder to employers that if they are to rely upon a justification argument to defend a discrimination claim, they will need to present specific evidence in support of its decision and not simply rely on generalisations.

This point was noted in the tribunal’s judgment which observed that the employer may well have been able to justify its actions, depending on what the advice from occupational health had been.

Case referred to: DL Insurance Services Ltd and O’Connor

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