Summary dismissal following disclosure of confidential information

It is generally (and sensibly) thought that summary dismissal without notice should only occur in the most clear cut cases. In Farnan v Sunderland Athletic Football Club Limited the High Court considered the circumstances in which such action might be considered appropriate, as well as shedding light on the somewhat unappealing aspects of the football industry behind the headlines.

Michael Farnon has a background in the sports marketing industry, having had jobs associated with Manchester United, Sheffield United, Jordan F1 and AC Parma. In about June 2010 he met Niall Quinn, then chairman of Sunderland AFC and discussed the Club’s sponsorship profile. In August 2011 he took up a post with the Club on a salary of £190,000 plus benefits and a discretionary bonus. There was a contractual notice period of one month and provisions for termination without notice in certain circumstances.

Mr Farnon had been involved in a business called Red Strike Marketing (RSM) in which his wife was a director and the sole shareholder. Since his email account with Sunderland AFC (SAFC) had not been set up he continued to use his RSM email account until September 2013 when the SAFC account was set up and he was asked to use it. Mr Farnan secured shirt sponsorship deals for the Club.

In March 2013 the new owner of SAFC, Ellis Short, sacked manager Martin O’Neill and appointed in his place Paulo di Canio, former manager of Swindon Town FC. Mr di Canio is a controversial character, having previously expressed very right-wing views. His appointment led to the resignation of one of SAFC’s directors, David Miliband. This was a crisis period for the Club and created problems for Mr Farnan, particularly in connection with the second shirt deal (with Bidvest) which had not by then been signed. There was a fairly terse exchange of emails between Ms Byrne, the CEO, and Mr Farnan. He felt that he had been ostracised and forwarded one of the emails from Ms Byrne to Mr Miliband. Later that day he contacted colleagues looking for alternative employment and enclosing in support a presentation that he had prepared while working at SAFC.

In April 2013, while attending the Soccerex trade exhibition in Manchester he had what he thought was an off the record conversation with a journalist. The conversation was subsequently reported by Bloomberg. At around the same time Ms Byrne prevented Mr Farnan from attending events in Florence, London and South Africa.

In May 2013 the CEO became concerned that Mr Farnan was sending emails from his SAFC account to his wife. She accessed the account and became upset because she read what she considered to be comments that were personal to her.

Also in May Mr Farnan contacted his lawyer because he felt that things had become unbearable. A further planned trip to Malta was cancelled by Ms Byrne and Mr Farnan consulted his GP about his stress. All this was happening at the same time as a relegation battle for the Club, which it won with the result that the Bidvest shirt sponsorship deal was confirmed.

On 15 May 2013 Mr Farnan went to the office and was met by Ms Byrne and the head of HR, Ms Goulden. Ms Goulden told him that he was being suspended for gross misconduct and he was escorted off the premises. He was suffering from stress and made an appointment to see his GP on 21 May. On 20 May he received a letter and some papers from SAFC, in connection with a disciplinary hearing scheduled for 23 May. He saw his GP the following day and was signed off for 14 days. He asked for an adjournment of the hearing, which was refused, and therefore took place in his absence. The charges were found to be proven and he was summarily dismissed by a letter sent on the same day. An appeal was unsuccessful.

In May 2014 Mr Farnan commenced proceedings claiming wrongful dismissal and unpaid bonus (claimed at £964,300). Shortly before trial SAFC sought to amend its defence by providing updated figures relating to the value of sponsorship deals (allowed) and by introducing a further allegation concerning an allegedly offensive image sent by Mr Farnan from his SAFC email account (also allowed).

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Holiday calculations when work pattern changes

Kathleen Greenfield v The Care Bureau Limited is a decision of the European Court of Justice which provides very welcome practical and common sense advice for those tasked with calculating holiday entitlement when an employee’s working pattern changes.

The case was referred to the ECJ by the Birmingham Employment Tribunal in April 2014. Ms Greenfield had worked for The Care Bureau since June 2009. Her working days and hours could vary from week to week. She was entitled to 5.6 weeks’ holiday per year and the holiday year ran from 15 June. She left the employer on 28 May 2013, having taken seven days’ paid leave during her final leave year (in July 2012). In the twelve weeks prior to taking her leave her pattern of work was one day per week.

However, from August 2012 she worked twelve days on and two days off (taken as alternate weekends). This equated to 41.4 hours per week. In November she asked for a week’s paid leave but was told that as a result of the holiday taken in June and July she had exhausted her entitlement to paid annual leave. This was because the entitlement to paid leave was calculated at the date on which the leave was taken, based on the working pattern for the prior 12 weeks. Since that pattern was one day per week she had taken the equivalent of seven weeks’ paid leave, thereby exhausting (and exceeding) the annual entitlement.

Ms Greenfield took her case to the Birmingham Employment Tribunal and won. The Care Bureau Limited requested written reasons and the Tribunal proposed to reconsider its decision on the basis that the law was unclear, thereby justifying a reference to the European Court. However, after considering written representations the tribunal decided that a reference was unnecessary and confirmed its decision to find in favour of Ms Greenfield. The Care Bureau Limited appealed to the Employment Appeal Tribunal.

It also applied to the Birmingham Employment Tribunal to reconsider its judgment. It did so and revoked its judgment, partly on account of a mathematical error and also to enable the reference to the ECJ.

Ms Greenfield contended that leave already accrued and taken should be retroactively recalculated and adjusted following an increase in working hours in order to be proportional to the new number of working hours rather than the hours worked at the time that the leave was taken.

The Care Bureau Ltd maintained that EU law did not provide for a new calculation and there is therefore no need to make such an adjustment under national law.

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How do you find out if a translator is required if a translator isn’t available?

This is the question that concerned President of the Employment Appeal Tribunal Mr Justice Langstaff in the case of Hak v St Christopher’s Fellowship.

Mr Hak worked as a night wake worker at a children’s home in Newton Road, Birmingham. He is Cambodian and his native language is Khmer. He has lived in the UK for the last 17 years. In April 2013 he was dismissed, purportedly for misconduct. However, he maintained that it was on racial grounds – because he was not Afro-Caribbean – and/or as the result of making public interest disclosures.

In his ET1 he said that he had texted a co-worker and asked her out for dinner. She declined and he sent a number of texts to her thereafter. In response she filed a formal complaint of sexual harassment. On the day of the hearing of the complaint Mr Hak had filed a report in which he had made a number of allegations about other co-workers, specifically black Jamaican employees. He said that the complainant was being “lured…toward a male worker” and that “something is going to turn the Newton Road into the United Kingdom of Jamaicans as soon as any white female worker there will need to have sexual affairs with a Jamaican male worker”. He also said that she was “quite vulnerable because she is on public transport which is easily monitored by this ethnic group in Sandwell areas” and that “she would feel “very unsafe while she is still working and living in the Sandwell area which is full of these ethnic people”.

He was called to a disciplinary hearing and was dismissed for what he reported were allegations of “racism…and serious unsubstantiated allegations (my views)”. His appeal against dismissal was unsuccessful.

His ET1 set out his complaint in 55 paragraphs over 11 pages of closely spaced written English. The matter was listed for a preliminary hearing on 9 October 2013 and the Respondent indicated that it intended to make an application to strike out the claim. Mr Hak wrote to the Tribunal and made a number of observations including:
English is not my first language and I have not been able to afford the benefit of legal advice, and therefore, I would welcome any suggestions the Employment Tribunal may have in advising how I may set out my case in a clearer format for the other side and the Tribunal to understand;
In response the Tribunal asked him whether he required an interpreter. However, in another letter, the Tribunal said that it was a private hearing and only the parties could attend. Mr Hak asked for an interpreter. However, one speaking Khmer could not be found and the hearing on 9 October went ahead. Employment Judge Kearsley observed:
Whilst the Claimant had demonstrated a good command of written English he indicated that he would struggle with articulating legal arguments in other than his first language. I felt that although I could have made orders today to prepare for a final hearing it would be unfair to the Claimant to face the risk of his claims being dismissed without his having the benefit of an interpreter.
The matter proceeded to a further preliminary hearting on 13 November. Judge Gilroy QC noted that Mr Hak had made a number of derogatory remarks about black Jamaicans, using wholly inappropriate racially stereotypical phrases and descriptions to speak of other employees and his discrimination claim was “wholly devoid of merit”. At the same time the employer had valid grounds to dismiss him. However, this hearing also took place without an interpreter attending and Mr Hak said that he “was unable as a result fully to understand the proceedings or sufficiently to present his case”. He appealed.

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ECHR rules on principle of secularism versus religious beliefs

For many years France has been renowned for its strict adherence to a secular approach in public services. Known as laïcité, it is an ideology which, for many, goes some way to defining what it means to be a modern French person. The approach follows the formal separation of church and state in 1905. There are no hymns or religious assemblies in schools and absolutely no chance of a nativity play at this time of year.

In 2004 the principle of secularism was challenged when thousands of French women and schoolchildren took to the streets to protest their right to wear headscarves in schools. There were technical rules which ought to have allowed Muslim women to wear headscarves in government run establishments such as schools but attempts to do so frequently led to local protests and bans. In February 2004 President Chirac introduced legislation to ban the wearing of all “ostensible religious insignia” in state schools. The legislation was passed easily, by 494 votes to 36.

Fast forward to 2015 and the same issue has been before the European Court of Human Rights in a case which, remarkably, stems from the non-renewal of a fixed term contract in 2000. In Ebrahimian v France, Ms Ebrahimian is a French national who was born in 1951. She was employed on a fixed term contract as a social worker in the psychiatric department of Nanterre Hospital and Social Care Centre. Her contract ran from 1 October to 31 December 1999. On its expiry the contract was extended by one year to 31 December 2000.

On 11 December 2000 Ms Ebrahimian was informed by HR that her contract would not be renewed because she would not remove her headgear when working and following complaints from patients. In a letter sent by the Director of HR she was reminded of a Government declaration that “while the freedom of conscience of public officials was guaranteed, the principle of the secular character of the State prevented them from enjoying the right to manifest their religious beliefs while discharging their functions; accordingly, wearing a visible symbol of religious affiliation constituted a breach of a public official’s duties”.

Ms Ebrahimian applied to the Paris Administrative Court, as a result of which she was put forward as a candidate for the post of social assistant. However she did not participate in the recruitment process. In October 2002 the Court found that the decision not to renew the contract was in accordance with the principles of secularism and neutrality of public services.

In a further judgment delivered in February 2004 the Administrative Court found that there had been procedural errors. However in May 2005 the decision not to renew the contract was again confirmed. An application to the Versailles Administrative Court to set aside the decision was unsuccessful, as was an appeal to the Administrative Court of Appeal.

Ms Ebrahimian appealed to the European Court of Human Rights in October 2011. In its judgment, issued on 26 November 2015, the ECHR noted that the reason for non-renewal of the contract was her refusal to remove her veil, which was an expression of her affiliation to the Muslim faith. This had to be regarded as interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights.

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Defending an unfair dismissal claim which could have settled

News has emerged of a very costly outcome for the BBC following its failure to defend an unfair dismissal claim brought by former chief technology officer, John Linwood. Mr Linwood was dismissed in 2013 following the disastrous failure of the Corporation’s Digital Media Initiative. Launched in 2008 it was intended to modernise production and output by transferring to a fully digital, tapeless workflow. However, after numerous problems and delays, the BBC’s contract with Siemens was terminated in 2009. It emerged that Siemens had been appointed without a tendering exercise. At the time of termination in 2009 the BBC’s losses were £38.2m but these were partially offset by a £27.5m settlement paid by Siemens.

In 2011 the BBC was criticised by the National Audit office for its mishandling of the project. Details of the sorry tale were set out in the NAO’s full report issued in January 2014. Remarkably it continued to limp along until an embarrassing press release was issued by Director of Operations Dominic Coles on 24 May 2013 which confirmed its closure once and for all. Remarkably, by then the overall losses had spiralled to £98.4m. News of the abandonment of the project coincided with the announcement that Mr Linwood had been suspended pending an external investigation. He was sacked in July 2013 and did not receive a pay out.

In January 2014, when giving evidence to the Public Accounts Committee, Mr Linwood revealed that he had brought legal proceedings against the BBC, essentially on the basis that he had been scapegoated. His claim was heard in the London Central Employment Tribunals throughout most of May and four days in June 2014, following which the unanimous decision of the Tribunal was that he was unfairly dismissed. There was a 15% finding of contributory fault.

What makes the story of renewed interest is that it has now emerged that the BBC spent nearly £500,000 on defending a claim that could have been settled for £50,000. A Freedom of Information Act request has revealed that the BBC spent £498,000 on costs, VAT and expenses, plus damages estimated at £80,000. However, an offer to settle of £50,000 had been rejected before the bulk of the legal fees were incurred.

According to the Tribunal judgment a culture of “sacrificial responsibility” at the BBC led to “avoidance strategies” and “the steering of the spotlight of blame in other directions” by those who feared that they would be associated with “a sinking ship”.

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Decline in “risky” office parties

Recent research has shown that 30% of employers do not usually have Christmas parties for their employees. This represents a significant reduction in the number of festive parties since data started being collected in 2009. Some employers have blamed financial constraints while others have said that, quite simply, they’re not missed by employees.

According to Evren Esen, director of survey programmes for the Society for Human Resource Management (in the US):
Maybe it’s one of those things that’s not as appealing to employees any more…Millennial employees may also have different expectations of the workplace and how they want to spend their time at work.
Meanwhile in the UK, reputation and brand management specialists Igniyte, has published the results of a survey which shows that one in four UK employees have vowed to drink less this year, with a view to avoiding embarrassing themselves and/or flirting with a colleague.

The research also shows that nearly one in three employees have flirted with another employee and over one in four kissed a co-worker at a Christmas party. While such activities may at face value seem to be relatively harmless, the research also reveals some more worrying tendencies. Apparently 14% of energy and utility sector workers have been dumped by their partners as a result of their Christmas party behaviour, while 14% of employees in the same sector are planning to confront a colleague or tell them that they don’t like them. In the property sector one in ten have received written or verbal warnings following bad behaviour at a Christmas party and, remarkably, 8% of those questioned lost their jobs as a result of what they did.

As a sign of changing times 15% are planning to change their Facebook settings before the party so that they have to approve a ‘tag’ in a photo or status.

Of course, it is not just employees that may behave badly. The apparently relaxed environment of the Christmas party can cause big problems resulting from the misbehaviour of employers. Every year there are news stories about discrimination in various forms (particularly sex discrimination) and, sadly, reports of serious assaults. It’s led some to ask, in all seriousness “is there anything worse than an office Christmas party?”. In the words of Constance Watson in The Spectator:
It is almost always a horror show. Colleagues who are cheerful all year round turn into angry drunks. Usually benign bosses become second-rate pimps. The interesting become boring and the boring become interminable.
Her sensible advice is not to be too stingy with alcohol but to keep the party simple and short. If some want to go on and get paralytic somewhere else, that’s up to them. Critically however it will not be at a function organised by and very likely associated with the employer. A good case in point in terms of reputation damage can be seen in the case involving MBNA Bank that I discussed last month.

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Redundancy consultations and notifications – criminal sanctions

Most employers and HR staff with experience of dealing with redundancies are aware of the requirements for collective consultation. Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires employers, where 20 or more employees are proposed to be made redundant within a period of 90 days, to consult with the employees who are at risk of being made redundant for a minimum of 30 days. The period is extended to 45 days where 100 or more employees are affected. Failure to consult can result in protective awards of up to 90 days’ pay.

There is also a requirement to notify the Secretary of State of the proposed redundancies and this is done by using prescribed form HR1.

What is less well known is that failure to do so is a criminal offence and can result in prosecution and a fine. According to the Government’s website the fine may be up to £5000. However this is incorrect. Section 194 of the Act provides that an employer is liable on summary conviction to a fine not exceeding level 5 on the standard scale. Since 12 March 2015 such fines have been unlimited.

Further, pursuant to section 194(3):
Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
Accordingly, individuals can be prosecuted and, if convicted, face an unlimited fine as well as a criminal record.

This month, in a marked departure from the prior approach pursuant to which such prosecutions were virtually unheard of, prosecutions under the Act have been brought against the chief executive of Sports Direct and three former directors of City Link.

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Dismissal based on sickness absence can be complicated

In Monmouthshire County Council -v- Harris the Employment Appeal Tribunal was asked to review a finding in the Cardiff Employment Tribunal that Mrs Harris was unfairly dismissed and that the dismissal was an act of disability discrimination. At a remedy hearing in September 2014 she was awarded £238,216.37. The Employment Appeal Tribunal proceeded on the basis of determining, in respect of the unfair dismissal, whether the Employment Tribunal erred in regarding procedural defects as sufficient to make the dismissal substantively unfair and whether there was a failure to consider the Council’s substantive grounds for dismissal. It also considered whether the Tribunal erred in failing to consider, in the context of discrimination, whether dismissal was a proportionate means of achieving a legitimate aim and whether or not it took into account irrelevant considerations.

Mrs Harris had worked for the Council since 1992. Latterly she was suffering from depression, sinusitis, asthma and an underactive thyroid. Accordingly she was disabled for the purposes of the Equality Act 2010. At a time prior to autumn 2010 and following occupational health advice she had been permitted to change her working arrangements to include working from home. Thereafter a new line manager, Mr Austin, was appointed. In January 2013 Mrs Harris complained that Mr Harris was not supporting her working from home and asked to return to her previous arrangements. Thereafter she commenced a period of sickness absence and did not return to work.

She attended meetings with HR in March and May 2013. On 28 May Mar Austin met with HR and it was decided that Mrs Harris’ employment should be terminated. She was notified by letter dated 4 June. the dismissal was due to take effect on 31 July. She appealed and the appeal was heard on 4 July. She objected to a lack of consultation, raised concerns about her working relationship with Mr Austin and complained that the decision to dismiss was based on an out of date report. The appeal was rejected.

In June and July she applied for ill-health retirement but this was declined. A medical opinion obtained in October 2013 concluded that although she was still unfit for work and likely to remain so for the foreseeable future, it could not be said that she would be permanently unfit until the normal retirement age.

At the resulting Employment Tribunal it was noted that the reason for dismissal was “absence which arose due to the claimant’s medical condition (a disability)”. There was inadequate warning of the possibility of dismissal and inadequate consultation. In addition there was a failure to make reasonable adjustments which also went to the question of the fairness of the employer’s behaviour. Mr Austin had effectively prevented Mrs Harris from maintaining the home working arrangements from January 2013. There was also a failure to take into account the updated reports that had been obtained for the ill-health retirement application. The fairness of the dismissal was also tainted by the active participation of Mr Austin. As for the discrimination claim the Council failed to make reasonable adjustments on the basis that if working from home was properly implemented from January 2013 there may have been no ongoing sickness absence at all. The Council appealed.

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Comparisons with the treatment of others rarely assist in disciplinary matters

It is very common when receiving instructions in connection with unfair dismissal claims for the complainant to compare they way they have been treated with the treatment of other employees, e.g. “it’s not fair because he did far worse than me and only got a written warning”. In nearly all such cases the treatment of others is irrelevant when determining whether or not the individual was treated fairly or unfairly, particularly in terms of sanctions imposed. Although employees can often see their actions as directly comparable with others it is rare for there to circumstances in which a direct and equal comparison can be made.

A good example is the recent decision of the Employment Appeal Tribunal in MBNA Limited -v- Jones. Mr Jones was a collections officer with MBNA Bank in Chester. In November 2013 the bank celebrated its 20th birthday with an event at Chester Racecourse. Staff were told that it was a work event and normal standards of conduct would apply, with any misbehaviour being dealt with in accordance its procedures and guidelines. Although the event started at 7.00 p.m. Mr Jones had started drinking at about 5.00 p.m. He was in company with another employee, Mr Battersby. Early on in the evening there was an incident which involved Mr Battersby kneeing Mr Jones in the back of his leg and Mr Jones licking Mr Battersby’s face. Staff who were present did not regard it as more than fun or banter. Later in the evening Mr Jones had his arms around Mr Battersby’s sister. Mr Battersby again kneed him in the leg and, in turn, Mr Jones punched Mr Battersby in the face.

After Mr Jones left the event he went with others to a club. Mr Battersby waited outside the club and sent Mr Jones seven texts which included a repeated threat to “rip your f*cking head off”. As it happened there were no further incidents that night and Mr Jones did not read the texts until the following morning.

MBNA conducted a disciplinary investigation and brought charges against both employees. It was concluded following a disciplinary hearing that Mr Jones had initiated the altercations by licking Mr Battersby’s face and his claim of self-defence was rejected. It was also noted that the incidents took place at a MBNA branded event, thereby impacting on the reputation of MBNA. He was summarily dismissed for gross misconduct.

In the case of Mr Battersby, he was found to have sent texts which were “of an extremely violent nature and were wholly inappropriate”. However they were considered as a response to Mr Jones hitting him and he was issued with a final written warning.

An appeal against dismissal by Mr Jones was unsuccessful.

At the Employment Tribunal it was argued on behalf of Mr Jones that there was inadequate investigation, insufficient weight was attached to provocation and there was inconsistency between the dismissal of Mr Jones and the warning issued to Mr Battersby. On behalf of MBNA it was contended that it was impermissible to find that Mr Jones was unfairly dismissed because of the way that Mr Battersby had been treated.

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How hard do we work?

I imagine that, if asked, many people in employment would say that they work very hard. Controversially, at the recent Conservative Party Conference, Health Secretary Jeremy Hunt, suggested benefits cuts would make people “work hard” by strengthening the nation’s work ethic. He said:
My wife is Chinese, and if we want this to be one of the most successful countries in the world in 20, 30, 40 years’ time there’s a pretty difficult question that we have to answer which is essentially: are we going to be a country that is prepared to work hard in the way that Asian economies are prepared to work hard, in the way that Americans are prepared to work hard?
Of course, we now know that those who worked at getting the tax credit changes through Parliament should perhaps have worked harder or rather more wisely by including the relevant provisions in primary finance legislation rather than secondary legislation that was liable to be and was duly struck down this week in the House of Lords.

However, Mr Hunt has latched on the perception that UK workers do not work as hard as those in other countries. Of course such generalisations cover a multitude of scenarios but, as a general benchmark based on hours worked per annum the top five countries are:

South Korea
Chile
Russia
Hungary
Czech Republic

However, evidence has emerged which suggests that UK workers are working very hard, perhaps too hard to the extent that this may be a cause of concern for both employers and employees.

First, according to research by Canada Life Group Insurance, 22% of UK employees did not take their full holiday entitlement in 2014 with 5% saying that they were pressured by their employer into not doing so. Reasons for not taking a full entitlement included providing cover for maternity leave and covering for members of staff who had left.

Second, and more concerning, research by National Accident Helpline has revealed 89% of workers have not taken sick leave when unwell.

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