Suspect An Employee of Disloyalty? The Law Can Move Fast to Help You!

Businesses often have no choice but to allow employees access to sensitive trade information despite the obvious risks which that entails. However, one High Court case revealed how fast the law can move to stem any leaks which may arise from disloyalty.

A company specialised in organising ‘summit’ meetings at which senior executives could meet and get to know one another. It had built up an archive of high-level contacts and confidential customer information over many years of trading which was vital to its success.

Following a senior employee’s resignation, the company suspected that he had taken that and other information with him. He had set up a business of his own, operating in a similar field, and was alleged to have sent confidential company documents to his home email address as the date of his departure approached.

The employee’s contract contained a number of confidentiality, non-compete and non-solicitation covenants which, amongst other things, forbade him from misusing company information or working for a competitor for 12 months. The company launched proceedings to enforce those provisions.

In his defence, the employee accused the company of flagrant breaches of his employment rights and argued that he had been constructively dismissed. He denied breaching the covenants, also insisting that they were in any event too broad and one-sided to be enforceable.

In granting an interim injunction against him, however, the Court found it strongly arguable that disclosure of the relevant information to a competitor would cause real damage to the company. The year-long restriction on his involvement with a competitor was also not on the face of it unreasonable.

The injunction would not sterilise his professional skills or prevent him from making use of his expertise as a manager and salesman in a non-competing field. In the circumstances, the balance of convenience fell in the company’s favour and it was appropriate to make an order holding him to the terms of his contract.

Bank Worker’s Hopes Boosted in Race Discrimination Case

A black computer consultant and business data analyst, whose employment with a high street bank was summarily terminated when he was less than three months into his contract, has won a fresh chance to prove that he was a victim of race discrimination.

The bank insisted that the man’s dismissal had nothing to do with his race and was due to his poor performance. An Employment Tribunal (ET) rejected his claim on the basis that it preferred the evidence of his line manager as to the events in question and the motives for his dismissal.

In allowing his appeal, however, the Employment Appeal Tribunal found that the ET’s reasons were insufficient to enable him to understand why he had lost his claim. It was not enough for the ET to baldly state that it preferred one witness’s evidence over another’s without also stating why that was the case. In those circumstances, it was impossible to be satisfied that the case had been tried fairly and the matter was sent back to a fresh ET for re-hearing.

Let Down By An Untrustworthy Employee? You Are Not Powerless!

It is a sad truth that employees cannot always be trusted not to give in to temptation – however, if the worst happens, the law is there to help. In one case which illustrated the point, the High Court came to the aid of a company which suspected a senior staff member of receiving bribes, commissions and secret profits totalling about £1 million.

The man had been employed as a procurement manager by the company, a major player in the house building industry, for more than a decade. It was alleged that he had misappropriated and misused confidential information and taken kickbacks from subcontractors who were anxious to do business with the company.

Following investigations, the company had indentified large sums of money flowing through the man’s bank accounts and that of a company of which he was the sole director. He was said to have paid over £450,000 to his wife and parents and to have used a private email account to further his nefarious activities. It was noted that the man appeared to be living a lifestyle far beyond that which his salary would permit and that some of the relevant funds had been received from a firm which had been awarded substantial contracts by the company.

The man and his company denied any wrongdoing. However, after an emergency hearing at which only the company was represented, an asset freezing order was issued against them. Following a further hearing, at which lawyers for all parties appeared, the Court extended that order in somewhat modified form.

The Court found that there was a real risk of further dissipation of the relevant funds and that it was just and convenient to continue the order. The man and his company were also directed to disclose certain documents in order to ascertain the extent of the alleged wrongdoing.

The Annual Christmas Party

The firm’s annual Christmas party gives employers the opportunity to thank members of staff for their contribution over the past year and is a chance for everyone to relax and enjoy the holiday season. However, it is easy to forget that an employer owes its employees certain obligations, even outside work, when the employer has organised the event and that employees’ conduct should comply with normal standards and should not breach workplace equal treatment and anti-harassment policies.

In a recent TUC poll, 11 per cent of workers who have attended a work Christmas party admitted embarrassing themselves in front of their boss.

In order to prevent what should be a happy occasion from leading to recriminations or worse, an employer should take certain basic steps. Here are some of the more important ones: 

  • Carry out a risk assessment – this should include the venue and, in particular, the possible risks associated with serving alcohol. Making sure employees can get home safely is important, so consider hiring transport or providing taxis if necessary. Ensure soft drinks are provided as an alternative to alcoholic drinks;
  • Ensure that, if employees’ partners are invited, there is no discrimination with regard to who is included. Ensure also that reasonable adjustments are made to allow any disabled employee or partner to attend;
  • Where possible, make sure that the arrangements accommodate the requirements of employees of different religions;
  • Ensure that employees understand the difference between ‘banter’ and behaviour that could be considered to infringe the dignity of any person present…and if such behaviour occurs, act quickly to prevent a re-occurrence. Take prompt action if a complaint is received;
  • Make sure that employees who are expected to attend work the day after the function understand that absence through over-indulgence is likely to be regarded as a disciplinary rather than a medical matter; and
  • Make sure employees are aware that any illegal acts will not be tolerated.

The biggest problems that are likely to arise are that inappropriate behaviour may occur, especially if alcohol flows too freely, and that there may be conduct which members of a particular religious persuasion find objectionable.

Your firm’s contract of employment will probably deal with most or all of these issues. However, it is sensible to have a separate policy on what is expected of employees at workplace social events and to remind employees of its contents in advance of any function.

For advice on all matters to do with employee behaviour issues and contracts of employment, contact us.

Victimisation Claim Survives Absence of ACAS Certificate

The law is always focused on encouraging voluntary dispute resolution and that is certainly so in employment cases where workers must consult with the Advisory,Conciliation and Arbitration Service (Acas) before lodging complaints with Employment Tribunals. However, in one guideline case, a failure to do so was not fatal to a woman’s amendment of her claim.

The woman worked for a technology company for about two years before she resigned whilst on maternity leave. She presented a claim to an Employment Tribunal (ET), saying that she had been discriminated against by reason of her pregnancy. In accordance with the Employment Tribunals Act 1996, she had notified Acas of that claim and had been issued with an early conciliation (EC) certificate.

She subsequently sought to amend her claim to include a complaint of victimisation. An EC certificate was not obtained in respect of that claim and the company argued that she should thus be barred from pursuing it further. That argument did not persuade the ET, which permitted the amendment.

In dismissing the company’s challenge to that decision, the Employment Appeal Tribunal noted that, whilst it is necessary to obtain an EC certificate prior to commencing ET proceedings, doing so is not a prerequisite for an amendment application. Although the victimisation claim was new, it was related to an existing matter already before the ET and the woman did not have to go through the entirely technical exercise of consulting Acas for a second time. The ruling enabled the woman to proceed with the entirety of her claim.

Guidance on Recruiting and Retaining Transgender Employees

The Government has published guidance, produced in partnership with Inclusive Employers, a membership organisation for employers looking to build inclusive workplaces, designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also a useful guide for the managers of trans staff and for trans staff themselves.

The guidance also provides clarification as to how the law applies in England, Scotland and Wales.

Misbehaviour at Office Parties Can Lead to the Sack

Some misbehaviour at office social events is usually tolerated, but workplace rules continue to apply and those who go over the top can be lawfully dismissed. Exactly that happened in one case where a bank worker punched a colleague in the face during an office day out to Chester Racecourse.

The worker and a colleague had been drinking before and during the event. They had been warned in advance that normal office standards of behaviour would apply. There had been banter between them earlier in the day before things got nasty on the dancefloor, when the colleague kneed the worker in the leg and the latter responded by delivering the punch. Following the event, the colleague sent texts to the worker in which he threatened to rip his head off; however, the texts were not received until the following morning.

A disciplinary process ensued and the worker was dismissed for gross misconduct on the basis that his behaviour had the potential to seriously impair the reputation of the bank. The colleague was given a written warning after it was found that the texts were an immediate response to the worker hitting him and that he would not have followed through on the threats.

An Employment Tribunal (ET) upheld the worker’s unfair dismissal claim on the basis that the punch was an overreaction to provocation and that there was an unfair disparity between the bank’s treatment of him and his colleague. In upholding the bank’s challenge to that ruling, however, the Employment Appeal Tribunal (EAT) found that dismissal was a reasonable response to his behaviour. In declaring the dismissal fair, the EAT observed that a distinction could properly be drawn between a deliberate punch in the face during the event and threats issued afterwards.

Thinking of Whistleblowing? Get Legal Advice Before You Speak Out!

Workplace whistleblowers play an essential role in society and are protected by law. However, one striking case has underlined that confidentiality rules still apply and that you would be wise to take legal advice before expressing your concerns.

A nurse was anxious about standards of patient care at the home where she worked and reported her employers to the local authority. She was dissatisfied with the council’s investigation and a dossier was passed to a trade union representative. However, the latter was concerned to note that the dossier identified certain patients by name and included confidential details of their medical conditions.

The nurse was subsequently suspended from the profession for 12 months by the Nursing and Midwifery Council (NMC). There had also been an incident in which she failed accurately to complete medication records, but her misconduct was not at that stage considered so serious as to justify striking her off.

However, she had since failed to engage with the NMC and there was no evidence of any regret or remorse on her part. Patient confidentiality was a fundamental tenet of the nursing profession and the NMC found no evidence that she had developed insight into her wrongdoing. Repetition of her misconduct would put patients at risk of harm and a striking off order was thus the only option.

National Security Prevails in Recruitment Discrimination Dispute

Those employed in sensitive government jobs should take note of an unusual case in which a chess master and computer security expert was refused employment at top secret intelligence base GCHQ after stating that, if forced to choose, his devotion to God would outweigh his loyalty to his country.

The man had gone through a gruelling screening process at the base before he was turned down for national security reasons. He had revealed the intensity of his devout Christian beliefs and GCHQ had also learned from his medical records that he had suffered a drug induced psychosis almost 20 years earlier. He admitted to having taken recreational drugs for nine months, but said that he had put such youthful dabbling behind him and was psychologically fit and well.

An Employment Tribunal (ET) later accepted that GCHQ’s security concerns were in part related to the man’s historic mental disability and his religious convictions. However, in dismissing his discrimination claims, it ruled that they were not the overriding reasons for his rejection. GCHQ’s published policy was that it would rarely consider job applicants who had ever suffered bipolar disorder or a psychotic illness. However, the ET accepted that that did not amount to a blanket ban.

In dismissing the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that GCHQ’s security concerns were separate and distinct from the man’s past disability. His religious beliefs were of no concern in themselves, but GCHQ was entitled to conclude that the effect those beliefs might have on his behaviour and judgment in the workplace did raise national security issues.

‘Zero Hours’ Contract Workers Do Have Employment Rights!

The idea that so-called ‘zero hours’ contract workers have no employment rights is a misconception, as is illustrated by a case in which a security officer who worked under such a regime was awarded arrears of holiday pay and compensation for her unfair dismissal.

The woman had not returned to work after lodging grievances against her employer and her contract was eventually brought to an end. An Employment Tribunal (ET) subsequently found that she had been made redundant, in that the employer had no work for her to do.

However, the ET went on to rule that her dismissal was procedurally unfair in that she had not been consulted or given relevant information. She was awarded £398 in compensation for unfair dismissal, £836 in respect of holiday pay arrears and £398 to reflect her employer’s failure to give written reasons for her dismissal.

In opening the way for the woman to seek further compensation, the Employment Appeal Tribunal (EAT) found that the ET had failed properly to consider her claim for an uplift in her award under the Trade Union and Labour Relations (Consolidation) Act 1992. Her lawyers argued that such an uplift would be justified by the employer’s alleged breaches of the ACAS Code of Practice on Disciplinary and Grievance Procedures. That issue was remitted to the ET for further consideration.