Mental Health First Aid in the workplace

October the 10th marked World Mental Health Day, a time to stop and consider how we can best support those around us who may be struggling. Given the amount of time we collectively spend in the workplace each week, particular thought should be given to the importance of mental health support at work. 

There is already
legislation in place providing the requirement for employers to ensure employees receive immediate attention if they are injured or taken ill at work,
but what about helping those suffering with mental illness? If an employee for example has a panic attack or is expressing suicidal thoughts?

The concept of
‘Mental Health First Aid’ originated in Australia where Professor Anthony Jorm, a researcher from the University of Melbourne was discussing with his wife, Betty Kitchener, a registered nurse, a recent mental health conference that he had attended. Within the conversation it was remarked that ‘What we really need is first aid for depression’. The idea has spread rapidly from there – developing
into an internationally recognised programme comprised of simple steps that can be called upon to help a person in distress.

Tick, tock: Will employees have longer to bring Employment Tribunal claims in the future?

Employment Tribunal fees. Simple, right? Everyone knows that employees ‘have three months to claim’ and that’s that? Not really. What about the fact that Equal Pay claims (and certain other types of claim) have a six-month time limit? That doesn’t tie into the presumption of simplicity. What about an employee who is dismissed on 2nd January and serves a 3 month notice period, so their last day is 1st April – do you count the three months from notification of dismissal or from their final day at work? How much does a period of Acas Early Conciliation extend any given time limit by? I could go on and on…

Overall, what is surely uncontroversial for both employees and employers alike is that simplicity is key. If everyone understands how long an employee has to bring a claim, everyone has the certainty of knowing the period within which to consider conciliation, negotiation and/or the obtaining advice regarding a prospective claim.

An unwanted kiss is “Strictly” verboten at work

Strictly Come Dancing

Last Monday I watched the evening’s newspaper front pages coming in on Twitter and nearly every one featured the romantic kiss between celebrity Sean(n) Walsh and professional dancer Katya Jones caught by The Sun on what happened to be his girlfriend’s birthday. It was the lead and second lead news on the BBC News website. Seann’s now ex-girlfriend who had been shown in the audience on Saturday evening’s programme was understandably unimpressed and her public response to their public indiscretion is worth seeing as one of the best put downs I’ve seen for some time.

So why am I writing about this on the Employment Solutions blog. Well, there was an interesting case reported this month which cost an employer £24,000 for similar behaviour in work, albeit non-consensual.

Discrimination in Recruitment: How to Avoid Discriminatory Advertisements

It is important that employers are mindful of their obligation to carry out a recruitment and selection process that is non-discriminatory in nature. Employers should therefore allocate sufficient time and care when publishing job advertisements so as not to be caught out – there is no cap on damages awarded at the Employment Tribunal for a successful discrimination claim so any mistake could prove very costly.

As a
starting point, a job advertisement must not discriminate on the basis of any
of the nine protected characteristics as defined under the Equality Act 2010,
which as a refresher are:

Legal professional privilege can be lost if what is being discussed is “iniquitous”

Most people are familiar with the idea that legal advice is “privileged” from disclosure, i.e. that is remains private between the client and his or her legal advisers. In the United States that has become a hot issue concerning President Trump and those around him, not least his longstanding personal attorney and recent convict, Michael Cohen.

Nearer to home, the issue has been considered by the Employment Appeal Tribunal in the case of X v Y Limited.

“X” was employed by “Y” as a lawyer from January 1990 until his dismissal on 31 January 2017. X suffers from type 2 diabetes and obstructive sleep apnoea. Records showed that there were concerns about X’s performance at work from 2011. X complained that measures taken by his employer amounted to disability discrimination and/or failure to make reasonable adjustments. He raised a grievance in March 2016 and an outcome letter was issued in June 2016.

In the meantime Y announced a voluntary redundancy process. Having been unsuccessful in applying for certain roles, X was placed in a “redundancy consultation process”.

At his employment tribunal hearing the employment judge accepted that, in May 2016, X overheard a conversation at the Old Bank of England pub in Fleet Street. The conversation was the subject of a claim of legal professional privilege. X said that a group of professionally dressed people including two women in their 30s or 40s came into the pub. One mentioned a disability discrimination complaint by a senior lawyer at Y. She said that there was a good opportunity to manage X out by severance or redundancy because there was a big reorganisation under way.

In his claim X relied on the conversation to interpret an email that he was sent anonymously in late October 2016. The email had been sent by “A”, a senior lawyer, to “B”, a lawyer who had been assigned to Y. The content of the email was not read out in court at the initial tribunal hearing. X maintained that the email contained advice on how to commit unlawful victimisation by using the redundancy/restructuring programme “as a cloak to dismiss” X. Y maintained that the email was legally professionally privileged.

Y terminated the employment of X, ostensibly by reason of redundancy, by three months’ notice ending on 31 January 2017.

In the employment tribunal, Employment Judge Tsamados decided that the email “did not disclose a strong prima facie case of iniquity”. Legal professional privilege can be lost if what is being discussed in “iniquitous”, i.e. (according to the Employment Appeal Tribunal);

“…beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy.”

On appeal Mrs Justice Slade noted that Judge Tsamados did not take into account the conversation in the pub. She concluded that it was right not to do so because it was not authorised by Y and could not therefore assist in determining its position and because there was no contemporaneous note taken.

However, as far as the email was concerned, there were relevant background factors to be taken into account.

You leave this court without the slightest stain on your character, except…

disclosure and barringCRB checks, DBS checks or ECRCs, whatever they are called, criminal record checks have become an integral part of many employment and recruitment procedures.

The object is laudable: to protect children and vulnerable people from coming into contact from those who are unsuitable to be among them. However, a decision of the Supreme Court at the end of July has exposed an interesting aspect of enhanced checks that many people did not realise and which raises interesting questions concerning our justice system and how mere involvement in a criminal process without any finding of wrongdoing can still result in a disclosure which can call into question the suitability of the individual concerned.

The case concerned someone known as “AR” (he cannot be named for legal reasons, a qualified teacher who was found not guilty of rape in 2011 after a Crown Court trial.

Although he was found not guilty, details of the allegation and the verdict were included in his criminal records certificate. Following hearings on 21 November 2017 and 23 April 2018, Lord Carnwath delivered the judgment of the Supreme Court. The respondents were the Chief Constable of Manchester Police and the Home Secretary.

In a report into the operation of the criminal records legislation, its author Sunita Mason pointed out that there was:

“…a degree of dissatisfaction with a system that has evolved with the laudable aim of protecting vulnerable people but is now viewed by some as intrusive and an unnecessary bar to employment. There is also concern that some people may be treated as ‘guilty until proven innocent'”

As a result of her report there were amendments to the legislation including a right to request a review.

Making a splash: Can a van driver be dismissed for soaking pedestrians?

 I regularly get asked: “how far does employment law go?” It seems an odd question to ask but I understand that most employers simply mean: “can you investigate nearly every type of poor behaviour” to which my answer is normally “yes!”

There has been a widely reported news story this week that largely explains my usual response. Namely, this concerns the story of a van driver who was immediately dismissed for driving through puddles and intentionally soaking pedestrians in Ottawa, Canada.

As with many situations involving professional drivers, the misconduct was caught via the dashcam of another vehicle. In this case, the vehicle in front had a ‘bootcam’ recording events behind the vehicle which recorded a 40 second clip of the van driver in question intentionally swerving into large puddles (which he could have easily and safely avoided) in order to soak three pedestrians in a row. As evidence goes, there is practically no other reasonable interpretation for the video (which remains available online). Naturally, the video was quickly viewed by nearly 1 million people and the matter was also referred to the Canadian Police. The employer concerned quickly announced that the individual had been dismissed and, in turn, the Police praised the employer for acting decisively and announced that they wouldn’t take any further action further to the loss of employment.

Now, obviously, the above-mentioned events occurred in Canada, so the real question is whether the same thing would happen over here, particularly given that employment law rights are viewed as being more favourable to employees on this side of the pond.

How to avoid a French-style World Cup mutiny in the workplace

 Yes, the World Cup remains in full swing. Not that that is news. Even if you’re not a football fan, all the adverts for cheap flat screen TVs to ensure you are ‘World Cup ready’ and media excitement over England ‘getting out of the group stage’ would have done the trick.

Now, naturally, for most people, memories of recent World Cups include a ponytailed England goalkeeper flapping at a Brazilian cross/shot, getting humiliated at the hands of tiny nations (Iceland, anyone?) and, of course, hitting Row Z from the penalty spot against ze germans.

However, for me, one of the most controversial, shocking moments of recent years was the French squad effectively refusing to train at the 2010 World Cup! Just imagine you’ve waited 4 years for the World Cup to come round, you’ve played well enough to make your national team and then, as a team, after a huge training pitch row with management, you walk out of training (into the team bus) in protest at the manager! On that occasion, it was due to the decision to send Nicolas Anelka home after the striker had reportedly sworn at the manager, Raymond Domenech. Needless to say, team spirit hit a massive low and they limply crashed out of the tournament soon after. C’est terrible!

So, what happens in similar situations at work? What happens if a staff member commits an unacceptable offence ending in dismissal against their line manager and their colleagues then rebel against the manager in question?

Is it fair to dismiss for action which falls short of gross misconduct?

It is well known that dismissal can result from a single matter which is usually found to amount to gross misconduct, or as the result of more than one event, with the prior matters resulting in written warnings and/or a final written warning. Indeed, most disciplinary procedures outline this process and generally include examples of what will normally be treated as gross misconduct.

However, in Quintiles Commercial UK v Barongo the question for the Employment Appeal Tribunal (EAT) was whether it was fair for Quintiles to dismiss Mr Barongo for conduct which was initially classified as gross misconduct but subsequently downgraded to serious misconduct.

Quintiles supplies staff for pharmaceutical companies. Mr Barongo started working for them in October 2012 and was latterly engaged to sell drugs for Astra Zeneca. On 5 January 2016 he was dismissed on notice on two grounds. First, he had failed complete Astra Zeneca’s compliance training course by the deadline of 3 November 2015 and, second, failing to attend their compulsory training course on 19 November 2015. Mr Barongo did not deny the allegations and he also accepted that they amounted to misconduct on his part. However, he contended that he had been dealing with other matters. He said that he had not intentionally failed to engage with the training but he had chosen to priorities other matters. This had been at a time when he was on a performance improvement plan.

There was a disciplinary hearing conducted with his line manager which took place by telephone. As the EAT pointed out, conducting the hearing by phone might not have been best practice but it was not in itself unfair. His line manager concluded that the duty of trust and confidence which ought to exist between employer and employee had been broken and, as a result, Mr Barongo was dismissed on notice, for gross misconduct.

He appealed against the decision and the appeal was heard by one of the employer’s directors, Mr Athey, who took the view that there had been a breach of the duty of trust and confidence, but that it amounted to serious rather than gross misconduct.

Mr Barongo submitted a claim of unfair dismissal to the Employment Tribunal. The Tribunal took the view that the downgrading of the misconduct from gross to serious was highly significant:

How to deal with convictions for sexual offences committed by a person associated with the employee

Judgments of the Supreme Court concerning employment law issues are fairly infrequent and usually worthy of attention. That is certainly so in the recent case of Reilly v Sandwell Metropolitan Borough Council which concerned an individual convicted of the surprisingly common offence of downloading indecent images of children.

Ms Reilly was the deputy head teacher of a primary school. She was in a close but not sexual relationship with a Mr Selwood and they did not live together. In 2003 they bought a property in joint names as an investment and Mr Selwood lived there, although he did not make any payments to Ms Reilly. Ms Reilly did not live there but she occasionally stayed overnight, including on 24 February 2009 when, the following morning, she awoke to the arrival of the police who searched the property and arrested Mr Selwood on suspicion of having downloaded indecent images of children. In September Ms Reilly was promoted to the post of head teacher at the school and in February 2010 Mr Selwood was convicted of making indecent images of children by downloading. On a scale of 1-5, the images ranged from level 1 to level 4. He was sentenced to a three year community order, made the subject of a sexual offences prevention order (which included a ban on him having unsupervised access to minors) and he was required to take part in a sex offenders’ programme.

Ms Reilly was immediately aware of the conviction and sentence but chose not to disclose them to the school governors or the local authority. In June 2010 the authority became aware of the conviction and she was suspended on full pay. She was required to attend a disciplinary hearing, the allegation being that, in failing to disclose her relationship with a man convicted of sexual offences concerning children, she had committed a serious breach of an implied term of her contract of employment, sufficient to warrant dismissal for gross misconduct. Following a hearing in May 2011 she was summarily dismissed. The panel was particularly concerned that Ms Reilly continued to refuse to accept that her continued association with Mr Selwood might pose a risk to children at the school. Her appeal against her dismissal failed.