Avoid being “fundamentally unfair”: the importance of robust disciplinary procedures
A recent Employment Tribunal case highlights the critical importance of following fair and reasonable disciplinary procedures. In the Employment Tribunal decision for Mrs L Murray v Astley House Nursing Home Ltd, the employer’s actions were described as ‘cavalier’ and ‘fundamentally unfair’, resulting in a significant amount of compensation being awarded to the claimant.
Background
Starting in January 2019, the claimant Mrs Murray commenced employment as an Administrator at the Astley House Nursing Home, which was part of the group company Pepperwood Care Limited, of which Ms Chohan is the sole director and shareholder.
In June 2024, Ms Chohan became aware that the claimant had been working overtime hours. She called the claimant to investigate these additional hours. Her PA, Ms Duffy, took notes of the call. Mrs Murray was shocked at the allegations of unauthorised hours. At the end of the call, she was suspended from work and escorted from the building.
Ms Chohan then instructed Ms Duffy to conduct a Disciplinary Hearing, despite the policy requirement for a Home Manager, Director, or Operations Manager. At the Hearing, Mrs Murray explained that her timesheets were processed by Head Office and the additional hours had been approved by her manager, Kirsty Steele.
The claimant was dismissed, with immediate effect, by letter. In Tribunal evidence, Ms Duffy indicated she had not considered a lesser sanction, nor had she considered the claimant’s length of service or clean disciplinary record. There had been no investigation into any of the claimant’s points.
The Appeal was heard by Christine Walsh. The Tribunal noted, ‘Ms Walsh regarded the requirement to deal with the appeal as an imposition’ and had the view ‘she had no power to carry out any investigations’. In one telling example, Mrs Murray asked about the authorisation of her hours, and Ms Walsh replied, ‘I cannot give any information on why you feel this query has not been answered.’ Following the unsuccessful appeal, Mrs Murray raised Employment Tribunal claims.
Findings
The Tribunal found Mrs Murray to be a credible and reliable witness. It appeared that Ms Chohan had been unhappy with the overtime, but these hours had been approved and processed by Head Office. There was no evidence that the claimant had been dishonest or disobedient.
The respondent’s solicitor made brief submissions, including the argument that the respondent ‘could have appeared weak’ if they hadn’t dismissed the claimant. The solicitor conceded there had been deviation from the disciplinary procedure and a lack of compliance with the Acas Code of Practice.
The Tribunal concluded that ‘the respondent failed to follow a fair procedure at every stage of the process’. Mrs Murray’s claims of Unfair Dismissal and Wrongful Dismissal were both successful. Her claim of Unlawful Deductions from wages was also upheld. In total, the respondent was ordered to pay over £27,000 to Mrs Murray.
Takeaways for Employers
This case underscores the critical importance of adhering to fair and reasonable disciplinary procedures. The financial consequences of unfair procedures can be substantial, and Employment Tribunal claims may lead to significant reputational damage.
Bright Contracts offers comprehensive resources, including a Disciplinary Policy aligned with Acas guidance, to support employers and help ensure procedures are fair and legally compliant. Please contact us to learn more about the support we can offer you.
Paws for Thought: Employee Wins Claim for Dog Food Expenses
In a recent Employment Tribunal case, a claimant succeeded in his claim for unpaid expenses, including the unusual expense of dog food. The case is a reminder of the importance of having a clear and comprehensive policy on business expenses, and responding reasonably to queries about expenses.
Claimant Mr Kamran Bashir succeeded in his Employment Tribunal claims for non-payment of wages, unpaid fuel expenses, unpaid annual leave, and dog food expenses for Lucky the German Shepherd.
It might be unusual to see a Tribunal claim relating to dog food, but the respondent was Alpha K9 Services, and their personnel work alongside ‘canine partners’ to deliver security solutions. Mr Bashir’s claim detailed expenses for Lucky’s dog food across a period of five months, for a total of £408. Together with unpaid fuel expenses, wages, and annual leave, the total compensation awarded was over £6,000.
Takeaways for Employers
Ensuring that employees are fairly reimbursed for expenses builds trust, contributes to efficient operations, and reduces the risk of legal disputes. It is important to review your procedure on expenses and ensure it is meeting the needs of your business.
Bright Contracts clients have access to over one hundred carefully reviewed employment policies and additional resources, including a trustworthy and thorough Expenses Policy which can be tailored to individual requirements.
UK Employment Law – 2024 in Review
As 2024 draws to a close, it's a good time to reflect on the year’s most significant changes in employment law. With new rules and new rights, there have been important updates which both employers and employees need to know about. In this post, we will look back at the highlights, giving you a quick refresher on key points for staying compliant and informed.
Flexible Working
In April, the right to request flexible working became a day-one right for all employees. Other updates included: employers being required to consult with employees before rejecting flexible working requests; the deadline for resolving a flexible working application has been updated to two months; and employees now have the right to make two flexible working requests in a year. Acas issued a revised Code of Practice with new guidance reflecting these changes.
Carer’s Leave
Employees have a new right to take up to one week of unpaid carer’s leave every 12 months to provide or arrange for care for a dependant with a long-term care need. This leave can be taken in single or half days.
Paternity Leave
New regulations have given employees the option to take either a one-week or two-week single period of leave, or two non-consecutive periods of leave of one week each. Paternity Leave can now be taken anytime within 52 weeks of the birth. Employees do not have to confirm exact dates until 28 days before the period of Paternity Leave is due to start.
Enhanced Redundancy Protections
Enhanced redundancy protections have been extended for employees taking Maternity Leave, Adoption Leave, and more than six continuous weeks of Shared Parental Leave.
Holiday Pay
New rules on calculating holiday entitlement and an option to pay rolled-up holiday pay came into force for holiday years starting from 1st April 2024. These changes apply to part-year workers and irregular hours workers.
Allocation of tips
New rules have been introduced for tips, deductions, and record-keeping. The requirements are explained in the Employment (Allocation of Tips) Act 2023 and the Code of Practice on Fair and Transparent Distribution of Tips.
TUPE consultation
Some TUPE consultation requirements, relating to employee representatives, have changed for transfers taking place on or after 1st July 2024.
Dismissal and Re-engagement
A Code of Practice on Dismissal and Re-engagement came into force, containing guidance on dismissal and re-engagement (‘fire and re-hire’) practices.
Sexual Harassment
A new legal duty was introduced for employers to take reasonable steps to prevent sexual harassment at work. To support understanding of this new responsibility, the Equality and Human Rights Commission (EHRC) published updated guidance for employers.
Conclusion
It has been an extremely significant year for employment law. To support clients as they navigate these changes, Bright Contracts provides a wide variety of resources which can be tailored to specific needs, including template policies and supporting documents.
Visit our website or talk to a member of our team to find out more about the help we can offer you.
The Importance of a Trustworthy Whistleblowing Policy
A whistleblowing review at the Financial Conduct Authority revealed criticisms of the Whistleblowing Policy, contributing to further censure about the company’s treatment of whistleblowers.
The FCA has been under scrutiny since a former employee’s public allegation in August 2024 that Ashley Alder, the chair of the FCA, breached confidentiality in handling a whistleblowing communication. The whistleblower told the Financial Times they were “stunned” about the breach and accused the FCA of “incompetence and incapability”.
After the first allegation, a second former employee came forward with a similar complaint, attracting further media interest. Richard Lloyd, the senior independent director of the FCA’s board, recently concluded an internal review of these two whistleblowing cases. He found that Alder “did not follow our existing policy” in these cases, identified shortcomings, and provided recommendations to strengthen the policy. A company announcement followed which confirmed the policy will be updated.
During the FCA’s annual public meeting, Alder appeared critical of the existing policy, sharing his view that “if a policy sets expectations, even though that policy is impractical, we would obviously regret that those expectations were not met”.
Georgina Halford-Hall, Chief Executive of WhistleblowersUK, expressed disapproval, saying the case ‘demonstrates that the FCA hasn’t got its own house in order and therefore it casts serious doubt over whether it’s able to lead and deliver its duties’.
The negative media coverage is a reminder that the quality of a company’s Whistleblowing Policy is critical. A robust policy can encourage open communication, ensure compliance, and safeguard a company’s future. A weak policy undermines trust and can lead to more harm than good.
Conclusion
Integrity, trust, and ethical behaviour are crucial in today’s business environment. A successful Whistleblowing Policy helps to protect employees and their employers. However, relying on inadequate policies can result in serious consequences, including major reputational damage.
Bright Contracts clients have access to over one hundred carefully reviewed employment policies and additional resources, including a clear and comprehensive Whistleblowing Policy.
Highlights of the CIPD Festival of Work
The 2024 CIPD Festival of Work was a landmark achievement for HR professional development, with over 11,000 attendees gaining access to more than 150 content sessions, 60 festival activities, and 180 exhibitors of leading products and services.
Keynote Speeches
The festival opened with Dr Daniel Hulme’s keynote speech, ‘Rethinking AI and impact on Business and Humanity’. Dr Hulme inspired attendees by generously sharing ideas for how HR practitioners could use Artificial Intelligence, including: data visualisation, chatbots, employee avatars, video generation, and network analysis.
Stacey Dooley MBE presented the next keynote, with the topic of breaking barriers and igniting change in media, mind, and society. The compelling speech was warmly received by attendees, with highlights including an amusing anecdote about her experience meeting David Dimbleby, and sincere reflections on her gratitude for the many learning experiences she accesses through her work. Attendees were moved by her explanation of the difficulties and disillusionment she experienced with education as a teenager, and her genuine appreciation for the lifelong learning opportunities offered through her career. The Learning and Development Stage offered attendees a wealth of professional development content, with topics including: lifelong learning, strategic skills development, and navigating the future landscape of learning initiatives.
The final keynote was presented by Alex Mahon, Chief Executive of Channel 4. This insightful speech explored leadership, culture, and key principles for Equity, Diversity and Inclusion. Attendees engaged with her exploration of authenticity, resilience in response to challenges, and her passion for fostering an open and honest organisational culture. The Festival provided further opportunities for reflection on the importance of EDI with a plethora of interesting presentations and panel discussions on topics including: neurodiversity, psychological safety, advocacy, and diverse leadership.
Takeaways for Employers
It’s an exciting time for professional development with a vast amount of guidance and learning opportunities, but many people are likely to feel apprehensive about the volume of work involved in keeping up with the increased compliance requirements and recommendations for best practices.
Bright Contracts clients have access to over one hundred carefully reviewed employment policies and additional resources, including new content for 2024 on Flexible Working, Carer’s Leave, Paternity Leave, and Absence Management.
The Most Expensive Sandwich in HR History?
Potentially the most expensive sandwich in HR history… was it filled with foie gras? Were there layers of lobster? Absolutely covered in caviar?
Well, no. It was a plain, ordinary sandwich by all accounts, coming well under the expenses limit. Yet this sandwich was integral to a Senior Banker’s dismissal (Szabolcs Fekete v Citibank NA 2023).
Fekete, a Senior Banker, put two sandwiches, two pasta dishes, and two drinks, on his lunch expenses during a work trip.
The quantity was suspicious, so he was questioned about this rather substantial lunch. Fekete responded to say the items were all for him and they were well within his expenses limit. He was hungry after skipping breakfast, the drinks were small, and the second sandwich was for his dinner. He asked why he was being put under scrutiny. However, the investigation continued, and Fekete later admitted some items were consumed by his partner, in breach of his employer’s Expenses policy. The Disciplinary procedure concluded with his dismissal.
Fekete then raised an Unfair Dismissal claim. He argued the sanction was unfairly harsh and had not sufficiently considered that he had been going through personal difficulties at the time. However, he lost the case as the Judge decided the dismissal was a reasonable response. The Judge’s conclusions emphasised that as a global financial institution, it was reasonable for Citibank to have high standards for honesty and ethical conduct.
If the Disciplinary Policy had been unreasonable, the case could have ended differently of course!
Bright Contracts clients have access to a comprehensive Employee Handbook, including a template Disciplinary Policy. Please contact us if you would like more information.
No More Excuses! Consequences of Not Providing Employment Documents
Excuses, excuses, excuses… there are many reasons why employers fail to provide legally required documents to employees. Unfortunately for employers who have failed in these responsibilities, excuses will not protect them from consequences including financial penalties and reputational damage.
In Cartmill v Always Transport and Others, the claimant Ian Cartmill explained he had not been issued with a written statement of his employment terms and conditions despite working as a Lorry Driver at Always Transport for over three years. On behalf of the respondent, Jean Murray admitted she had not completed this document as his ‘four days on and four days off’ shift pattern made it more difficult.
The Tribunal Judge stated that Ms Murray’s belief in the difficulty of completing the statement was ‘no real excuse’ and confirmed that Cartmill’s claim succeeded. Given the importance of drivers to the business, and ‘the absence of a credible reason’ for not providing the written statement, the Judge ordered an award of four weeks’ pay.
Likewise, in Mrs A Yeates v GT Plumbing & Heating Ltd, the respondent admitted there was ‘a lack of comprehension’ around HR practice. When the claimant Mrs Yeates joined the small business as a Showroom Manager/Designer, there was no employee handbook, and she did not sign an employment contract. Due to the failure to provide the written terms of employment, the Tribunal Judge ordered the respondent to pay the claimant the sum of £480.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. Excuses about difficulty or lack of understanding were not accepted in these tribunal cases.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
Bright Contracts also provides a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
Government Changes
The government has published a paper? which announces that, amongst other things, it will consult on proposals
- to remove EU-derived obligations to keep records of working time.
- to simplify calculating holiday pay.
- to allow businesses to inform and consult the workforce directly about TUPE transfers if they don't have representatives in place, where the employee has fewer than 50 employees and the transfer affects fewer than 10 of them.
The announcement comes at the same time as the government is abandoning its proposed default repeal of all retained EU law in favour of a more limited repeal.
Working time records
The government intends to consult on working time reporting and other administrative obligations under the Working Time Regulations (WTR) 1998. It believes that the current rules place unfair burdens on businesses.
These proposals would include removing retained EU case law which requires employers to record daily working hours, including overtime, worked by employees. This case was decided under the EU Charter of Fundamental Rights and the Working Time Directive. Currently, the UK's Working Time Regulations require only that employers keep and maintain "adequate" records to demonstrate that they are complying with rules on maximum working hours and protections for night workers.
Simplifying calculation of statutory holiday pay
The government proposes to simplify statutory holiday pay calculation, subject to consultation. It identifies two particular measures.
The first is to allow rolled-up holiday pay. Paying holiday pay in this way is a fairly common feature for zero-hours workers who, due to the nature of their working patterns, sometimes don't designate days specifically as annual leave. Rolled-up holiday pay was held to be unlawful several years ago, but amounts clearly identified and paid as such could be offset against any potential liabilities. This has meant that many organisations have continued to use rolled-up holiday pay, due to its administrative convenience, and the lack of a practical alternative.
The second identified measure is to merge the two types of statutory holiday entitlement. A worker's overall statutory entitlement is to 5.6 weeks of leave (28 days for a full-time worker). Four weeks of that entitlement comes from the EU Working Time Directive. The additional 1.6 weeks was granted as a purely UK entitlement. Different rules have built up over time relating to how to calculate statutory holiday pay for the two types of leave, as well as in relation to the right (or lack thereof) to carry leave over to the next holiday year. The paper is silent on which set of rules would be retained. It remains to be seen whether the government will identify any other measures for simplifying holiday pay.
Relaxing TUPE consultation requirements for small businesses
The government will consult on allowing small businesses (employing fewer than 50 people with the TUPE transfer affecting less than 10 employees) to consult directly with affected employees. Currently, unless the employer falls within the scope of a micro-business, they must consult with employee representatives on the TUPE transfer.
Limiting post termination non-compete restrictions to three months
The government is planning to legislate, when parliamentary time allows, to limit the length of post termination non-compete clauses in the employment context to three months. The government does not believe that this will affect an employer’s ability to use paid notice periods, gardening leave or other post-termination restrictions such as non-solicitation clauses. Back in 2020, the government ran a consultation on measures to reform post-termination restrictions in contracts of employment. The consultation closed on 26 February 2021 but the government has not published its response. It is unclear whether the current proposal is intended to take over?the earlier consultation.
Retained EU Law (Revocation and Reform) Bill (REUL Bill)
The government's much championed REUL Bill would have seen all EU-derived subordinate legislation effectively abolished by the end of this year by default, unless it was specifically retained. The number of affected pieces of legislation was estimated to be in the region of 4,000. The Bill allowed the government to extend, exempt or keep affected legislation, but the default position was that it would disappear from the UK statute book.
The government has now acknowledged the widespread criticism of this sunset mechanism and will replace it with a mechanism whereby only expressly listed legislation will be revoked.
It remains to be seen whether any items of employment legislation will make it onto the list of rules to be revoked. However, the government's announcements on TUPE consultation and working time rules suggest that TUPE and the WTR 1998 will be retained.
Aside from the scrapping of the sunset mechanism, the REUL Bill could still be significant for employment law in other ways. The Bill will do away with any remnants of the old principle of the supremacy of EU law as well as "general principles of EU law". In addition, the Bill effectively seeks to encourage UK courts and tribunals to stop and really think whether they should continue to follow any European Court of Justice (ECJ) case law, or domestic case law that applied ECJ case law. One area of employment law that has seen frequent ECJ interventions is the entitlement to paid annual leave.
Diversity, Equity and Inclusion
DEI stands for diversity, equity and inclusion. As a discipline, DE&I is any policy or practice designed to make people of various backgrounds feel welcome and ensure they have support to perform to the fullest of their abilities in the workplace.
- Diversity refers to differences within a setting; in the workplace, that may mean differences in race, ethnicity, gender, gender identity, sexual orientation, age and socioeconomic background.
- Equity is the act of ensuring that processes and programs are impartial, fair and provide equal possible outcomes for every individual.
- Inclusion is the practice of making people feel a sense of belonging at work.
Combining these three elements, DEI is an ethos that recognizes the value of diverse voices and emphasizes inclusivity and employee well-being as central facets of success. To bring those values to life, companies must implement programs and initiatives that actively make their offices more diverse, equitable and inclusive spaces. DEI issues matter to candidates and employees, and initiatives improve the long term health of companies
Diversity in the workplace is important because with different backgrounds come different points of view, which ultimately leads to better ideas and solutions.
In order to ensure equal circumstances for all individuals across the organization, equity requires that employers recognize barriers and advantages. This is the crucial difference between “equity” and “equality.”
While the workplace does require professionalism and etiquette, an inclusive culture should not bar individuals from being themselves.
So how can employers be compliant in regards to DEI? In general:
- Employers can include DEI in the handbook.
- Employers can provide training/education sessions to their employees.
- Employers can set up a DEI committee where the situation is analysed and goals are set to be improved.
- Employers can make sure they balance all three and focusing on one can cause the other two to suffer.
More specifically diversity can be improved by:
- Employers can use a blind hiring process which will allows the hiring team to focus on qualifications and experience. A blind hiring process involves names and other identification factors to be removing before the CV is sent for review.
Equity can be improved by:
- Employers can work with each employee to identify development opportunities.
- Employers can avoid asking for previous salaries and instead provide salary guidelines with pay bands that offer equitable salaries for various positions.
Inclusion can be improved by:
- Employers creating a policy on inclusion for the company. In this, issues that have been known in the past can be addressed in this.
- Employers can provide benefits that are flexible and compatible for a more diverse workforce such as floating holidays so employees can have time off for the holidays they choose to celebrate or health insurance plans that offers benefits for LGBTQ+ employees.
- Employers can support differences. If employers provide food, perhaps have a separate fridge for Kosher food.
Return to Work Guidance
The government has turned its attention to helping individuals who have taken a career break return to work (Returners). It has now published guidance for employers (the Guidance) and a toolkit designed to help employees returning from such a break. The toolkit includes tips for Returners on how to build confidence and negotiate salaries and flexibility, as well as providing resources for job opportunities and training.
The Guidance:
The Guidance comes when many businesses are taking steps to reassess and update their policies to align with the post-pandemic working landscape. Returners are seeking flexibility in their working patterns and the same can be said for a high proportion of the UK workforce in general. Research from LinkedIn, found that:
- 33% of UK workers would consider leaving their job if returning to the office full-time became mandatory.
- 52% of women had left, or were considering leaving, their jobs due to a lack of flexibility and that the current demand for remote working jobs exceeds the number available in the UK.
The Guidance focuses on those who are returning to work following a period of time away to “take on a caring responsibility” as well as those returning to work after a period of absence for other reasons, such as ill health or an earlier “retirement”.
The objective is to help individuals get back into work and to help businesses recruit from a pool of experienced people. When it comes to flexibility, the Guidance urges businesses to consider where, when and how much they need people to work. Another point is that, by hiring and supporting Returners, a business can demonstrate that it is “open to non-linear career paths” and that it “values the role that caring plays in society” – a message that can help attract and retain diverse talent.
The Guidance also notes that:
- 90% of non-workers want flexible work
- job adverts received 30% more applications when they were advertised as allowing flexible working (versus those that were silent on that point)
The Guidance suggests several ways employers can support Returners in returning to permanent employment. Examples of such initiatives include:
Returnships– fixed-term contracts with the potential for a permanent role at the end (which can be an effective way of facilitating a trial period that benefits both the employer and employee).
Supported hiring– permanent roles, with adjustments made to support Returners;
Return to practice– sector-based training and work experience; and
Fellowships– supported research and development projects which may also lead to a permanent role.
The Guidance emphasises the importance of businesses spreading awareness of these initiatives internally, whilst also actively supporting line managers who are bringing Returners into their team. Managers should be supported both in terms of training and knowledge-sharing to ensure that the business is taking a holistic approach.
Businesses are being encouraged to actively engage with Returners, seek their perspective and listen to feedback. Support can be provided by allocating buddies, mentors and/or coaches. Businesses should then reflect on any feedback, collect additional evidence and implement reasonable changes suggested by stakeholders.
Key takeaways
Given the increasing demand for flexibility both from Returners and other employees, businesses may benefit from implementing programmes such as those proposed in the Guidance. The evidence clearly demonstrates that the wider the variety of jobs, contract types and levels of flexibility offered by a company, the greater the talent pool from which to hire. Therefore, such initiatives should be seen as “a talent attraction strategy and not just a corporate responsibility”.
