employment law evidence language misconduct mitigation reasons for dismissal trust and confidence

The risks of writing honestly – a Karl Ove Knausgard-based perspective

I’ve recently started re-reading one of my all-time favourite books, A Man in Love (My Struggle Book 2) by Karl Ove Knausgard. It may sound like a romantic book but, in fact, it is brutal. No other word can reflect and sum up this book in its lengthy entirety: brutal.

Basically, the book acts as a stunningly honest portrayal of his life as an adult in his twenties and thirties. However, unlike most autobiographies, which tend to focus on the more positive moments (and dress down, or ignore, the challenging moments), Karl Ove tends to do the opposite and focus on the most embarrassing and horrific moments of his life and more quickly jump over the happier parts. It is the opposite to usual and reflects the author’s seriously pessimistic, and sometimes depressive, thoughts about life and his mostly standard attitude of not wanting good things because, eventually, they will turn bad and, instead, tending to focus and almost embrace sad and lonely periods.

I bought a Kindle five years ago and, since, I’ve read around 500 books (both physical and digital). I queried that figure briefly but, after thinking about it, I believe 2 books a week might even be a slightly conservative estimate. Due to this, it takes something quite special and ‘out there’ within a book to stand out and, during my lunch break yesterday, this book did just that – the time flew and I almost fell into the book, his reflections were that strong and powerful. You know a book has a gripping effect when the sound of a noisy cafe evaporates and your mood changes along with the author’s written mood. Just wow. If you want to learn more about Karl Ove Knausgard, a standard internet search will provide further information about him and his books.

Anyway, why am I talking about a book from a slightly well-known Norwegian author? Well, because after my most recent reading session, I wondered about the attitude of an English (or Welsh) employer to an employee having published a book about their life which, similar to Karl Ove’s work, was brutally honest to the extent of being almost being painful to read.

It is well publicised that nearly all employers are very protective of their reputation and wish to restrict employees from making negative comments about the workplace or colleague. Obviously, given that Karl Ove is a writer, he doesn’t have this problem (rather, when interviewed, he has admitted that he suffers the lasting effects of being brutally honest about his blunt feelings for, and disclosure of private events with, family members and friends) but what if an employee published a new book whilst within employment?

Well, let’s say that Mr Sterling works at an advertising agency in Liverpool.  He has worked there for 10 years and, during that time, hasn’t mentioned his secret ambition to be a writer to anyone.  Then, suddenly, he concludes a draft autobiography after spending 6 months writing at home and a publisher approves it.  In due course, it is published and, due to Mr Sterling using his real name and being brutally honest, the advertising agency (and, more importantly, the people working for it) don’t escape mention and over half are affected by negative comments and recollections of private events in the workplace (and outside it).

Naturally, the advertising agency is going to believe that a pessimistic book in which Mr Draper clearly doesn’t like over half of his colleagues isn’t exactly going to help the reputation of the business and they are likely to have the potential ability to dismiss Mr Sterling if his actions are in breach of their confidentiality and/or disciplinary provisions.  It is for this reason (albeit mainly to protect against online publications, rather than physical books) that most employers list the publication of negative comments about the business and/or ‘comments which may negatively impact the reputation of the business’ as a disciplinary offence (and/or potential gross misconduct) within their disciplinary policies.

Would there ever be a situation in which an autobiography similar to the above wouldn’t result in a disciplinary?  Well, despite the evidential difficulties, if Mr Sterling could prove that the book was a success and, in fact, had led to the number of new clients doubling in the 2 weeks since launch, this may constitute a mitigating circumstance.  More so, if the book was a huge success, the company most likely, from a PR point of view, wouldn’t wish to be seen to dismiss him for being honest and, adversely, may actually want him to remain to encourage new customers.

In this way, as per most disciplinary situations, the consequences of the action have a large amount of sway over the disciplinary sanction (if any) rather than just focusing on the action itself.

For fans of the TV show, Mad Men, this is a similar parallel with Don Draper writing the anti-tobacco ‘letter to the New York Times’ in the episode “Blowing Smoke”.  For those who aren’t familiar, the Creative Director of an advertising agency which had relied on tobacco advertising but lost a major tobacco account decided to vent his fury by announcing in a public letter that the firm would no longer service tobacco clients in the future due to health risks (without first telling the other partners!)

Overall, then, I hope any avid readers among those exploring this article perform a search for Karl Ove and consider exploring his books (albeit I can only wholeheartedly recommend My Struggle Book 2, as My Struggle Book 1 took political correctness and threw it off a bridge by today’s standards) and, also, are aware that the reaction to an employee’s behaviour is near as important as the relevant act itself within a disciplinary process.

disciplinary hearings employment law language misconduct

Employment Law Snippet – No.7 – Ice Hockey Rules

Hello and welcome to our seventh Employment Law Snippet article. As usual, this article aims to explore and discuss how a quirky, unusual topic might affect employees and employers alike.

This week we will be looking at NHL ice hockey! Stay with me now and let me explain. Over the last two weeks, I’ve been in Canada and, as you can imagine, the trip was full of driving through national parks, spotting multiple moose and recovering from lengthy walks in minus temperatures and snow with much coffee and maple syrup! One of the many highlights of the trip? Watching an NHL ice hockey game between the Edmonton Oilers and the Detroit Red Wings. I still have the chant ‘let’s go oilers’ going round my head! This was my second live NHL ice hockey game after watching my favourite team, the Toronto Maple Leafs, two years ago.

But, let’s hold on a second, what could NHL ice hockey possibly have to do with employment law? Well, as it turns out, quite a few parallels can be drawn.

Firstly, there is the potential team rivalry issue between colleagues. Back here in the UK, this is more likely focused on football rather than NHL ice hockey but let’s stick with the theme. Let’s say that Ross and Joey support the Pittsburgh Penguins and Edmonton Oilers respectively and, throughout the year, they trade friendly banter with each other. All is well. Now, let’s say that their teams are due to play each other in the Stanley Cup Final (i.e. the final match which decides the winner of the NHL for that year) and they refuse to work with each other following nasty comments from one to the other. This would be a situation in which, dependent on the nature of the comments, disciplinary action could be warranted against at least one of them. Think that sounds pretty daft? I’ve heard much dafter, legitimate reasons for disciplinary processes!

For more on sports team rivalries in the workplace, see our blog: “Can an employee be dismissed for supporting a certain sports team?” here. (And, yes, the image for that blog IS the Pittsburgh Penguins mascot!)

Secondly, there are several NHL ice hockey fouls that have parallels in the workplace. For those who have seen parts of NHL ice hockey games, it may be a slight surprise that there are punishable fouls as, at an initial glance, it appears to be a free-for-all. Alas, however, similar to rugby, there are quite a few ways to foul a player despite the contact-heavy nature of the sport. The most relevant ice hockey rules to the workplace include:

Roughing – The act of intentionally ‘roughing up’ another player – i.e. hitting them into the barriers when there is no puck in sight! This would be broadly equivalent to a colleague using overly harsh or offensive language to another colleague when softer, friendlier words would be appropriate.

Hooking – The act of stopping another player’s run by dragging them back with a hockey stick. This is similar to a situation where one colleague tries to undermine another colleague by spreading mistruths or false rumours about them in order to hurt their reputation.

Interference – Occurs when a player intentionally blocks another player (well away from the puck) or deliberately knocks their stick out of their hand (or prevents them from picking up a dropped stick from the ice). This would be similar to an individual being accused of misconduct and then not being allowed to put forward their own version of events within a fair disciplinary process (i.e. being blocked from safely recovering their clean record).

Naturally, the above summarises several situations in which employees can be blocked or prevented from working to their full potential, in the same way as fouls in sport seek to punish actions which prevent players from making fair progress.

And, now, if you will excuse me, it is time for me to take my NHL branded reusable mug to a suitable coffee shop and see if they will insert copious amounts of maple syrup into my drink of choice…

My thanks for reading our seventh weekly Employment Law Snippet article.

employment law restrictive covenants settlement agreements

Don’t force someone to sign a settlement agreement

Lots of employers think that just getting someone to sign a settlement agreement solves a problem. Well, that’s a risky approach and, for the second time this month, has been demonstrated to be not necessarily the best idea.

An area of employment that can be “problematic” is the financial services sector. This was well demonstrated in the case of Ward v Fiducia Comprehensive Financial Planning Limited.

Mr Ward started employment with Fiducia as a senior financial adviser in January 2009. In May 2018 he gave three months’ notice to terminate his employment. The effective date of termination, for contract reasons, was 7 June 2018.

All seemed fine on that basis but he claimed that, following the giving of notice, he was subjected to “bullying and intimidating conduct” by one of the directors, Marcus Grimshaw, at a meeting on 25 May 2018. He alleged that he was subjected to false and spurious allegations. He also said that he was blackmailed, or threatened with blackmail, unless he agreed with lengthening his post-termination covenants. He said that, if he failed to do so, he would be subject to allegations of gross misconduct (without foundation) in order to “tarnish his professional reputation”.

Mr Ward said that the employer applied excessive pressure on him to sign the restrictive covenant and discouraged him from obtaining legal advice.

At a meeting Mr Grimshaw said that he wanted to know where Mr Ward was going to be working in future. Mr Ward said that he was going to work with Ms Catlin, a former colleague. Mr Grimshaw became hostile and said that, if he did, he would treat Mr Ward in the same way that he had Ms Catlin (which was known to be hostile). That meant that, with background evidence, he had reason to feel that he was intimidated and harassed.

Having wrongly implied that Mr Ward was involved in a compliance breach a director, Mr Scott, who had previously reduced him to tears, was aggressive towards Mr Ward and alleged that he had wrongly represented that he was a solicitor and had, on that basis, received a significant payment. A few days later, Mr Ward was sent an agreement which would have increased his restrictive covenants from 12 to 24 months. He was told that if he didn’t sign, clawbacks would apply. He refused and went to his GP and was signed off as unfit to work. On 7 June he resigned, again, and left his employment.

The tribunal concluded that the employer made false and spurious allegations against Mr Ward “in an effort to pressurise him into either accepting the terms of the extended restrictive covenant agreement or to deter him from joining a potential competitor. I am satisfied that the allegations of misconduct were wholly disingenuous”.

Employment Judge Ahmed continued:

The Respondent was fully aware of the fact that the Claimant was a beneficiary under the Will of a client. This had been discussed with the Respondent. There were internal emails passing between Mr Grimshaw and Mr Scott concerning the Trust created by the Testator that the Respondent’s business would manage. The relevant Will was on the Respondent’s database. It is clear from the terms of Will that the Claimant was a beneficiary. It is inconceivable that the Respondent would have placed the Will on their database without reading it. It is also inconceivable that the Respondent would have acted or intended to act as managers of the Trust without knowing the terms of the Will. I do not therefore accept the Respondent’s evidence that they were wholly ignorant of the Claimant’s beneficial interest in the estate. The Claimant may have been unwise in not informing Openwork or confirming that in writing to his employer but that does not necessarily detract from the fact that the Respondent was aware of the position.

I am satisfied that the Respondent applied inappropriate and excessive pressure on the Claimant to execute the extended restrictive covenant agreement. Whilst the term ‘blackmail’ may be somewhat emotive, there is no doubt that the Respondent made it clear to the Claimant that if he refused to sign the new draft agreement they would pursue allegations of gross misconduct against him which would undoubtedly tarnish his professional reputation. In doing so, it is regrettable that Openwork became a party to these unfounded allegations. Openwork’s “investigation” was not undertaken fairly or with any real input from the Claimant. It is also regrettable that despite saying that they did not wish to involve itself in a contractual dispute that is precisely what Openwork did. The Respondent who has been legally represented has not sought to call any evidence from Openwork to establish the truth of the allegations.

I am satisfied that the allegation that the Claimant held himself out as a solicitor is without substance.

There has been no expert evidence provided by the Respondent as to what emails, if any, were deleted or amounted to an improper use.

I am therefore satisfied that the Claimant resigned on the second occasion in response to a breach of the implied term of trust and confidence. Such conduct clearly meets the Malik test.

I am satisfied the Claimant resigned in response to the breach. There was no reason for him to cut short his notice period otherwise. He did not delay in doing so nor did he affirm the breach.

Although the Respondent argues in the alternative that the dismissal, even if constructive, was nevertheless fair, the Respondent has failed to establish facts from which a potentially fair reason may be found. The constructive dismissal was therefore unfair.

paragraphs 20 to 26 of the judgment

Following the announcement of the decision on liability the issue of remedy was agreed.

The message is that, although I’m sure that none of our clients would behave this way, regardless of contractual entitlements, there is an obligation to behave reasonably, failing which you should not expect to be treated favourably in any resulting court proceedings

covert recording employment law trust and confidence

Does covert recording always amount to gross misconduct?

These days the possibility of someone making a recording of a conversation is potentially much more of an issue than it used to be, as a result of doing so easily by using a smartphone.

Contrary to popular perception the mere fact of recording a conversation, in a face to face meeting or by phone, is not in itself a criminal offence and is not prohibited. If the recording is purely for personal use there is no need to obtain consent or even to let the other person know. However, selling the recording or publishing it without consent can be a criminal offence. Journalists often record conversations, sometimes in secret, but then seek consent or argue that recordings have been obtained in the pubic interest.

You will no doubt have received a call from a business which begins with the caller saying that calls may be recorded for training or evaluation purposes, or something similar. This is often stated to be to ensure compliance with the Telecommunications Act 2000 and the Data Protection Act 2018. As an aside, this probably isn’t sufficient. Under GDPR the valid grounds for recording these calls are:

  • The people involved in the call have given consent to be recorded
  • Recording is necessary for the fulfilment of a contract
  • Recording is necessary to fulfil a legal requirement
  • Recording is necessary to protect the interests of one or more participants
  • Recording is in the public interest, or necessary for the exercise of official authority
  • Recording is in the legitimate interests of the recorder, unless those interests are overridden by the interests of the participants in the call

Under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 calls may be recorded for:

  • Establishing facts and evidence for business transactions
  • Ensuring compliance with regulatory or self-regulatory practices
  • Ascertaining and demonstrating that standards are being met
  • Defending national security
  • Preventing or detecting crime
  • Investigating or detecting the unauthorised use of that or any other telecommunication system
  • Safeguarding the effective operation of the telecommunications system

If, like me, you occasionally enjoy a bit of mischief-making, keep the list to hand and ask the caller to specify the law that they are relying on. Odds-on they will not even know or be able to identify any of the above grounds!

In a work situation, the position is not so straightforward. There is an implied duty of trust and confidence which applies to all contracts of employment, whether or not they are in writing.

In Phoenix House Ltd v Tatiana Stockman the Employment Appeal Tribunal (EAT) considered whether covert recording in the employment context is a ground for dismissal for gross misconduct.

In the employment tribunal Ms Stockman claimed for unfair dismissal, whistleblowing, race discrimination and victimisation and breach of contract. The complaints of unfair dismissal and whistleblowing were upheld. There was an appeal as well as a cross-appeal. The issue which primarily concerned the EAT in the latest appeal was the covert recording of a meeting. Most of the background is not relevant.

What is significant is that it emerged in evidence that Ms Stockman made a covert recording. She became involved in a restructuring process in which she attended a meeting with a Ms Paula Logan, director of resources of the employer and ultimately responsible for the HR department. Ms Stockman recorded that conversation but did not let Ms Logan know that she was doing so. In the course of the meeting Ms Logan said that she would be investigating a previous meeting which Ms Stockman attended and refused to leave, having been told that the meeting was private. Ms Stockman had become distressed at the prior meeting and had said that she would raise a grievance. Ms Logan told her that her action of interrupting a meeting and refusing to leave would be made the subject of disciplinary action.

At the remedy hearing the employer said that had it known about the recording it would have dismissed Ms Stockman for gross misconduct so that she should not be entitled to any award.

The employment tribunal concluded that the recording was not made for the purpose of entrapment. Rather, she was flustered at the time and did not know whether the recording would work. She made a transcript of it in order to discharge her disclosure requirement in the proceedings. The employer had not stated in its disciplinary procedure that covert recording was an example of gross misconduct. The tribunal concluded that there was a low chance that knowledge of the recording would have resulted in a fair dismissal and assessed that chance at 10%. Compensation was reduced accordingly.

It was contended by Counsel for the employer that:

…any covert recording of a confidential conversation in the absence of a pressing justification was a breach of the implied term of trust and confidence because it is of its nature dishonest conduct designed to obtain an advantage for the employer and place another at a disadvantage.

paragraph 60 of the judgment

It was also contended that secret recordings cannot lead to any conclusion other than the intention to entrap.

As I mentioned at the beginning of this post, His Honour Judge Richardson took account of how times have changed:

There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere.

We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change.

paragraphs 77 and 78 of the judgment

Judge Richardson then offered some useful guidance.

That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.

The result was that the appeal on this ground was dismissed.

The upshot is that, taking into account how times and technology have changed, the obvious precaution is to cite covert recordings as an example of gross misconduct in a disciplinary procedure. If an employee then makes such a recording, the likely outcome is known in advance and almost certainly fair.

procedure unfair dismissal

GP manager unfairly dismissed after awarding herself an unauthorised pay rise

If ever there was an example of the need to follow correct procedures, even in what appear to be the most glaringly obvious situations, the Employment Tribunal decision in Sidhu v Rathor t/a Allenby Clinic/Northolt Family Practice is a good case in point.

It used to be the case that, in very obvious cases such as detected theft or violent assault, a summary “on the spot” dismissal for gross misconduct without investigation was thought to be appropriate. However, for a number of years, that has increasingly become a very risky course of action. When investigations are carried out, they must be thorough, adopt a fair procedure and, in particular, afford a right to reply.

Ms Sareet Sidhu commenced employment with Dr Sangeeta Rathor in February 2013. She was summarily dismissed for gross misconduct as notified in a letter dated 28 November 2017.

Dr Rathor was a sole practitioner GP at the Allenby Clinic until 2014 when she took over the Northolt Family Practice where Ms Sidhu and her mother worked as assistant practice manager and practice manager respectively. By 2017 Ms Sidhu had become practice manager and her mother was the business manager. All three got on very well, including socialising outside of work, until mid-2017. when there was a major falling-out. Dr Rathor accused Ms Sidhu and her mother of making “veiled death threats”, as well as engaging in “intimidating conduct and bullying behaviour, forgery and misappropriation/theft of over £100,000 from the business”. In turn, Ms Sidhu accused Dr Rathor of drinking alcohol at work, treating patients when under the influence of alcohol and signing blank prescriptions, as well as prescribing medication for the benefit of family members.

The tribunal found that all three were unreliable witnesses in circumstances in which the truth would go against their cases. Nonetheless, there were clear records concerning what Ms Sidhu was paid. When working for Dr Rathor’s predecessor, her salary was £24,008.40, based on an hourly rate of £12.15 and 38 hours per week. By checking an external payroll service it could be shown that in September 2014 her pay rose to £45,883 p.a., in March 2015 to £56,311 p.a., in August 2016 to £62,568 p.a., in November 2016 to £70,910 p.a. and in May 2017 to £94,910 p.a. As the tribunal observed “her income rose significantly and quickly”. Her mother was on a similar or greater level of remuneration. Reflecting the level of concern about the evidence the tribunal noted that:

The impression the respondent wished to give us was that she only discovered the true extent of the amount of money being paid to the claimant and her mother shortly before she suspended the claimant and her mother on 4 October 2017.

paragraph 41 of the judgment

However, Dr Rathor had signed off accounts in January 2016 which showed that wages and salaries paid amounted to £183,645. She also knew that Ms Sidhu’s pensionable pay as shown in the P32 for June 2015 was £4962 gross for the month, or £56,311 p.a. the tribunal therefore found that this was her authorised salary at the time. However, subsequent pay increases were found as a fact not to have been agreed by Dr Rathor so that, in effect, they amounted to unauthorised pay awards made by Ms Sidhu to herself. When she was suspended on 4 October Ms Sidhu consulted solicitors immediately and a letter from the solicitors was delivered on the same day. The tribunal took this as an indication that Ms Sidhu and her mother had been preparing for challenges to their salary levels: “Put another way, we doubt that individuals genuinely shocked and surprised by the matters raised at the meeting on the morning of 4 October 2017 would have acted so swiftly”.

However, it also seemed likely that, from June 2017, Dr Rathor knew that there was a problem:

However, we find that from about June it is probable that the respondent became increasingly aware of the high levels of remuneration being paid to the claimant and that it was this that was increasingly souring the relationship between the parties. That ties in with the letter from CLP Solicitors which refers to the respondent having concerns over the claimant’s mother’s salary over many months. The first statement by the respondent prepared for the disciplinary process contains a number of remarks concerning the claimant’s lifestyle – referring to her ‘luxury lifestyle (exotic holidays, sports cars, branded clothing and accessories and diamond necklaces …’. This is carried on in her witness statement for these proceedings where she refers to the claimant owning two houses, having a diamond necklace and driving a new Mercedes car. Such observations, whilst not perhaps that relevant to the case, do suggest that the respondent was unaware of exactly how much was being paid to the claimant and demonstrate why the relationship was souring.

paragraph 53 of the judgment

On 3 October 2017 Dr Rathor had contacted her employment law advisers, Peninsula Business Services. The following day she called in Ms Sidhu and her mother and suspended them both. Ms Sidhu was invited to attend an investigation meeting on 10 October. On 9 October Ms Sidhu’s solicitors wrote to the respondent, objecting to the lack of specific allegations – the letter asking her to attend the investigation meeting merely stated that “we have concerns regards your conduct”.

Nonetheless, the investigation went ahead although Ms Sidhu was not in attendance. Thereafter she was called to a disciplinary hearing which, after postponements, took place on 30 October. Ms Sidhu was interviewed by a Mr Pegg of “HRFace2Face”. It became clear during the interview that Mr Pegg had access to far more documents than had been made available to Ms Sidhu.. Ms Sidhu attended a re-interview with Mr Pegg on 2 November. In his report, Mr Pegg referred to a forensic investigation report prepared by AMS accountants which showed a financial loss to the practice of over £138,000 and was directly relied on to support a finding of gross misconduct. The report was dated 13 November, i.e. nearly a fortnight after the second interview with Ms Sidhu in circumstances which allowed her no opportunity to respond. Instead she was dismissed with immediate effect as notified in a letter dated 28 November and received by her on 4 December. An appeal was unsuccessful.

Unsurprisingly, the tribunal found that the principal reason for dismissal was gross misconduct for awarding herself pay rises without authorisation, however it was procedurally unfair. She was entitled to an award for unauthorised deductions from wages. However, her awards for compensation for unfair dismissal were reduced by 100% on the basis that it was not just and equitable to make a basic award in light of the misconduct and the compensatory award was reduced to nil since the dismissal was entirely the result of her own actions.

Although the employer was not left significantly out of pocket, there will no doubt have been a great deal of inconvenience caused by the proceedings, let alone potentially very serious ramifications relating to the allegations of malpractice which emerged in the course of the hearing. The message is simple: in all such cases, seek competent professional advice from the outset. We can be contacted free on 08000 832832 and by email to

employment law Supreme Court whistleblowing

Can a judge be a whistleblower?

District Judge Claire Gilham used to sit at the Warrington County Court. In 2010 she became very concerned about her working conditions. The court rooms were not secure, her workload had increased enormously and there were frequent administrative failures following substantial cuts to the Ministry of Justice budget. These issues will be all too familiar to regular court users and most would agree that the conditions have deteriorated significantly in subsequent years.

Judge Gilham complained, but felt that she was bullied, ignored and undermined. In particular she was told that her workload and concerns were simply “a personal working style choice”. She suffered from mental health problems and was signed off with stress from the end of January 2013.

In 2015 she brought a whistleblowing claim in the employment tribunal. However, an issue was raised about whether or not she was classified as “worker”, within the meaning set out in the Employment Rights Act 1996. She was found not to be a worker and so her claim failed. The outcome was the same on appeal to the Employment Appeal Tribunal and the Court of Appeal.

However, in a landmark decision delivered on 16 October, the Supreme Court overturned the decisions of the lower courts in holding that Judge Gilham was a worker and therefore entitled to whistleblowing protection. As a result her case will now be considered by an employment tribunal. The lead judgment was delivered by the outgoing President of the Supreme Court, Lady Hale. She stated:

I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistleblowing protection to the holders of judicial office.

Speaking outside the Court, Judge Gilham said that she was “delighted” with outcome “after seven long years”, saying:

I was surprised to discover that I was excluded from the protections afforded other whistleblowers.

As the Supreme Court has now found, there was no justification for that exclusion, and the Supreme Court has now put that right.

Judges are just as in need of protection when whistleblowing as others. The point of whistleblowing protection is to give confidence that it is safe to raise malpractice within any organisation.

Organisations that cannot hear such warnings endanger the services they are tasked with providing

A Ministry of Justice spokesman confirmed that the Government accepts the judgment and will now consider how to implement it.

Although the point of establishing that an office holder such as a judge is entitled to whistleblowing protection may seem fairly narrow, the point is that the judgment makes clear that the principle is that all classes of workers are entitled to protection when raising whistleblowing concerns. Logically, that extends to short-term workers, agency workers, zero hours workers, indeed all bar the genuinely self-employed, and how long might it be before they are included as well. The message is clear, take all whistleblowing claims very seriously and assume that protection is available to the whistleblower, unless there are very clear reasons indicating the contrary.

disciplinary hearings employment law

Employment Law Snippet – No.6 – Can coffee cause a disciplinary?

Hello and welcome to our sixth Employment Law Snippet article. As usual, this article aims to discuss a chosen topic in an interesting, non-jargon filled way and identify how it might affect employees and employers alike.

This week, we will be looking at coffee! Yes, that wonderful caffeine-laced drink! Let’s get the obvious point out of the way – I love coffee! One of my favourite memories is sitting next to Lake Como in a waterfront Italian cafe with a small but fiery cappuccino the day after proposing to my now wife. The coffee completed the moment…

But, hold on a second, coffee causing a disciplinary situation? What is that about?

Well, let’s take this morning as an example. Costa Express coffee machines are today (1st October) holding an all-day event where you can walk up to any of its machines (whether Merseyrail, Tesco, etc.) and take a hot drink for free, whether it be coffee or hot chocolate, whatever your poison. The drawback? Large queues at Merseyrail stations caused by commuters chasing a free coffee fix! Timed wrongly (like those at the back of my queue this morning), I reckon some people weren’t escaping with their coffee and arriving at work until at least 9.30am! They certainly wouldn’t have been helped by the super slow speed of the machine…

Technically, late attendance is a disciplinary matter which, if serious enough and/or repeated often enough, can lead to a formal disciplinary meeting on absence grounds. So, technically, one of the people behind me in my line this morning could have activated the ‘last straw’ mentality of their employer, especially when they announced their lateness was due to ‘queuing for coffee’!

Naturally, it would need some poor luck to fall foul in practice but, as per all things, sometimes a potential disciplinary situation can creep out of nowhere. Imagine an employee who missed their train by 1 minute last Wednesday and was 10 minutes late for work, then arrived 15 minutes late for work last Friday and then arrived 30 minutes late today because of being stuck in the free Costa Express coffee queue.

From the employer’s point of view, this would be pretty damning over the last 5 days. But from the employee’s point of view, it may be less controversial (i.e. last Wednesday’s delay could be due to going back work for an umbrella because of increasingly heavy rain, last Friday could be due to a cancelled train and today could be due to being in the Costa Express queue and simply losing track of time (or being willing to skip lunch and finish work later than usual to make up any lost time)).

This is why there is a usual process of holding an absence review meeting to allow an employee to put forward any reasons for late attendance in case there are innocent explanations and/or obvious bad luck following a lengthy period of good attendance.

In saying this, employees who regularly arrive at work late clutching takeaway coffee cups are an easy target so, whilst today may be a reasonable exception due to the Costa Express coffee machines being free, it may be a one-shot deal (unless my double-shot cappuccino!) and may cause a situation which, ironically, creates further need for a strong cup of joe!

My thanks for reading our sixth weekly Employment Law Snippet article.