Newsflash - Autumn 2020

Autumn 2020

As most employers offer the right of appeal in a redundancy dismissal, and many procedures allow for this, it may come as a surprise to learn that the Employment Appeal Tribunal (EAT) has reconfirmed in a recent case that appeals are not strictly necessary in a redundancy dismissal situation.

What happened?
The individuals were teachers whose school was due to close and another school replace it. They were told their jobs were at risk but they could apply for a position within the new school. They did this but were unsuccessful and so were made redundant. The individuals bought claims for unfair dismissal since they were not given any right to appeal the decision to dismiss them and there was very limited consultation. The employer argued a right of appeal would not have made any difference to the outcome of their dismissal since their place of work was closing. The original Tribunal decided that they had been unfairly dismissed because, among other things, they were not give the right of appeal nor had they undergone a meaningful consultation process and it took into account the size and resources of the employer (a local authority). On appeal the Employment Appeal Tribunal (EAT) said that their dismissal was unfair but there were specific regulations which applied to the school obliging the employer to give a right of appeal. However, more interestingly, the EAT referred to an earlier case which said that there is no rule that a redundancy dismissal will be automatically considered to be unfair simply because it did not have an appeal procedure. Therefore, in some cases it may well be fair to not offer a redundancy appeal. The overall fairness of the process needs to be looked at as a whole.

What does this mean for employers?
This case confirms that there is no general rule that a redundancy appeal must always be offered, nor that by omitting to do so will the dismissal necessarily be unfair. It is interesting that the ACAS Code of Practice for Disciplinary and Grievance Procedures recommends employers have an appeal process for disciplinary and performance cases. However, this does not apply to redundancy dismissals. Whilst there is an ACAS guide on redundancy (which states that it is good practice to offer an appeal) that guide is does not have the same legal status as the Code of Practice. Offering an appeal can remedy any procedural flaws that may otherwise exist, reducing the risk of a successful unfair dismissal claim but, on the other hand, reversing a decision in a redundancy dismissal on appeal can impact on individuals who considered themselves to be “safe” in their role and create further uncertainty in an already stressful period.
If you do not have a redundancy policy/procedure which requires an appeal and do not have a custom and practice of offering this for such dismissals, you may have flexibility as to whether (or at least to what extent) you offer appeals in such dismissals. There may be a particular redundancy situation you are faced with where you do not want to offer a full appeal procedure. In such cases, you may be able to tailor your process to accommodate that situation (requiring forward planning) and limiting when and how any appeal will be heard. If nothing else, it may give you comfort to know that if an appeal is overlooked for a particular reason in a redundancy situation, this does not always make the dismissal unfair.

How can we help?
If you would like to explore this specific situation further with us, or would like more general advice on a redundancy/restructure process including any policy you may have in place, please do contact us in the usual way.

Flexible working requests in light of Covid

It is estimated that between half and two thirds of workers had to change their working arrangements and work from home at some point during lockdown. With many businesses still not back to the office and workers remaining working from home, this has shown many employers just how flexible and productive their workforce can be away from the office and how many more jobs can successfully be carried out from home than previously thought.

We have already heard stories of many employers scaling back their office space with a view to making working from home a more permanent arrangement. As many individuals are reported to be enjoying the new flexibility in their working location or hours that Covid has brought, it would not come as a surprise that it is anticipated that there will be a rise in flexible working requests when they are asked to return to their previous working arrangements, to afford workers greater flexibility on a more permanent footing. We have summarised the procedure to follow below and set out some trickier areas to be aware of. If you are faced with such a request, please feel free to contact us for guidance and advice.

Who can make a request?
Previously, employees could only make such a request when they had certain caring responsibilities. However, since 2014, any employee with 26 weeks continuous service, who has not made a formal flexible working request in the last 12 months, can make a request for any reason. Despite the law being relaxed in 2014 to allow an employee to make such a request on any basis, the vast majority of requests are from females and on the basis of childcare needs, with the main request being for part time hours, although whether this will change as a result of Covid remains to be seen. Regardless of the reason for their request, the same process should be followed and the request given the same serious consideration. However, where the request is to enable the employee to carry out caring responsibilities for children, the elderly or disabled or to assist a disabled employee himself/herself, then employers need give the requisite consideration to those requests to avoid discrimination related claims. Requests for flexible working could be to change their working hours, days, or location of work (i.e. to work from home). Of course, when an employee submits a flexible working request, this does not mean the employer needs to agree to it. However, it must be given serious consideration and the correct legal procedure must be followed.

How to handle a request
It is essential that if you receive a flexible working request, it should be handled in line with your flexible working procedure if you have one in place. As a minimum you must comply with the legal rules which include:

1. Meeting with the employee once a valid request is received to give due consideration to the request (this can be via zoom/teams etc in the current climate if preferred), unless you can agree it in full immediately. In most cases some arrangement, if not on the exact lines that the employee wishes, is achieved and the request is agreed by negotiation taking into consideration the role and the business needs;
2. If it is agreed, it must be confirmed in writing to the employee as a permanent amendment to the employee’s contract (unless a temporary agreement has been reached);
3. If there is uncertainty as to whether a requested working pattern will be successful, a trial period can be agreed;
4. Where you are unable to agree with the request (in full or in part), any refusal must be on the basis of one or more of the eight business reasons below and the employee has the right to appeal that decision. It is essential that each case is considered separately, as a blanket approach to refuse flexible working requests can result in successful tribunal claims against the employer;
5. You have 3 months to consider and give a response including the right of appeal within this time frame.

Employers can often feel under pressure by the legislation and be concerned about the risk of refusal. However, the requirement is not to agree to each request but to treat all requests in a reasonable manner. We can guide you through this process.

A request can only be refused on the basis of one or more of the 8 business grounds set out by the legislation, and the employer should have evidence as to why those business reasons apply in that case. The 8 business grounds are:

1. The burden of additional cost.
2. An inability to recruit additional staff.
3. An inability to organise work amongst existing staff.
4. Detrimental impact on quality.
5. Detrimental impact on performance.
6. Detrimental ability to meet customer demand.
7. Insufficient work in the period the employee wishes to work.
8. A planned structural change to the business

It worked during Covid
If an employee submits a request to continue to work flexibly as they have done during lockdown, the business will need a sound solid business reason to reject such an argument and require their pre lockdown working arrangements to continue. This should be backed up by evidence which could include lower productivity figures, client/customer complaints or that with a split between some employees being office based and some home based, communication issues arise.

Consistency
Approaching requests in a consistent manner is very important to avoid arguments of discrimination or favouritism. Adopting a fair procedure, training managers on the process and centralising the process as much as possible can help to achieve this.

Potential Discrimination
As we mentioned above, whilst the process is the same regardless of the reason for the request, it is important to be aware that where the request is linked to a protected characteristic under the Equality Act (e.g. to enable the employee to carry out caring responsibilities for children, the elderly or disabled or to assist an elderly or disabled employee himself/herself or to accommodate religious requirements), they carry the potential to result in a discrimination claim if they are not handled carefully.
For example, refusing a woman’s request for part time hours for childcare purposes could result in an indirect sex discrimination claim because women remain more likely to be disadvantaged by a practice of requiring staff to work full time. Employers can justify indirect discrimination, but to do so they need to show they have a legitimate business aim for refusing that flexible working request and the aim is “proportionate” (meaning all alternatives have been properly considered).

Multiple requests
There are times when you could be faced with multiple flexible working requests and this could certainly occur when you require staff to return to work as usual. Faced with such a situation, the ACAS guidance and best practice is to consider requests in the order that they are received. However, some employers may be more inclined to consider those requests that could result in a potential discrimination claim ahead of others. Such an approach comes with a warning, however, to be careful not to fall foul of discriminating against the individual whose request is pushed to the back of the queue. For example, there could be a direct sex discrimination claim where a male’s request for flexible working is rejected but has or would have been granted for a woman.

How can we help?
If you would like a copy of our template flexible working procedure please let us know. If you are faced with a request and would like guidance on how to approach it, please do contact us and we can guide you through each stage, assist with letters and help test the robustness of any potential grounds of refusal.

Unfair Dismissal for not framing allegations correclty 

The facts
A teacher was charged with possessing a computer containing indecent images of children. It was a shared computer found at his home by the police. However, when the police couldn’t establish who had downloaded the images, it was decided not to proceed with a prosecution of the teacher but it reserved the right to do so in the future. The teacher was suspended by his employer whilst an investigation was carried out. The investigation report referred to the following concerns:

1. The teacher’s involvement in the police charges of possessing a computer with indecent child images;
2. If this became publicly known, it could bring the employer into disrepute;
3. The position of trust the teacher holds in his profession.

A disciplinary hearing was convened and the invite letter referred to the allegation that the teacher was “involved in a police investigation into illegal material of indecent child images on a computer found within your home and the relevance of this to your employment as a teacher. “ No specific reference was made to the potential reputational damage of the employer as being an allegation the teacher was facing or a ground for potential dismissal. The employer dismissed the teacher on the following grounds:

1. It was possible the teacher may have been responsible for the images found on the computer (even though the employer said there was insufficient evidence to conclude the teacher had downloaded the images);
2. The risk of reputational damage from continued employment if he was prosecuted in the future and;
3. An irretrievable breakdown in trust and confidence.

The teacher brought a claim for unfair dismissal but the original tribunal found this was a fair dismissal. The teacher appealed on the basis that he was not told that the risk of reputational damage was an allegation he was facing and that the employer couldn’t dismiss him based on the possibility he had downloaded the images.

What did the Employment Appeal Tribunal (EAT) decided?
The EAT decided that the dismissal was in fact unfair on the basis that the employee was not given notice of the full grounds on which a dismissal may be sought. The teacher was not given notice that reputational damage may be a potential ground for dismissal in this case. It was not sufficient for this to be mentioned in the investigation report. It is a separate potential ground for dismissal, and as such must be mentioned as such to allow the teacher the opportunity to to fully prepare for this ahead of the hearing.

Further, it was also decided that it was not reasonable to dismiss on the basis that the teacher “may have” downloaded the images nor that there could be reputational risk “if” he were prosecuted in the future. The EAT said that the employer can only assess the risks on evidence they currently have, not of unknown risks (which included a future conviction). This meant that the employer should have decided whether the misconduct was established and in this case, it was not able to establish this, it was a mere “possibility”. Decisions had to be made on the balance of probabilities on the evidence they had and not “guess” work.

What does this mean for employers?
This decision highlights the importance of taking care and being absolutely clear about the allegations being put to the employee and the disciplinary panel’s remit when hearing the case. It is a principle of natural justice that an employee knows the charges against him or her when facing a disciplinary hearing to enable him/her to prepare his/her case. It also reminds us that decisions must be taken on the “balance of probabilities” based on the evidence available and not on what might happen in the future.

We are here to help
We can help advise in all levels of disciplinary cases. In complex or contentious cases, we would strongly advise you contact us for assistance on the investigation and disciplinary process including framing the concerns and allegations fully and appropriately and communicating the final outcome.