In BP plc v (1) Elstone (2) Petrotechnics Ltd [EAT/0141/09], Petrotechnics Ltd (PL) managed its client’s health and safety operations. BP plc was one of its clients. Mr Elstone, a PL worker, made a series of protected disclosures (or “blown the whistle”) to BP plc about his health and safety concerns.
PL considered the disclosures to be confidential and dismissed Mr Elstone for gross misconduct.
After his dismissal, BP plc employed Mr Elstone as a consultant. However, BP plc did not offer any more consultancy work to Mr Elstone after it discovered the reason for his dismissal.
Mr Elstone claimed that BP plc had subjected him to a detriment because he had made a protected disclosure (or “blown the whistle”).
EAT’s Decision
The EAT held that under the Public Interest Disclosure Act 1998 (also known as the Whistleblowers’ Act) - Mr Elstone was permitted to make such a claim – even though he was employed by PL and not BP plc at the time he had made the protected disclosure (or “blown the whistle”).
The Act had to be interpreted purposively in order to provide proper protection for a whistleblower.
Prudent HR decisions are based on up-to-date information. Trotman's Employment Law Alerts (TELA) was an email news service that quickly informed HR professionals about the latest employment law developments. This is proven by the publication dates of the news items shown below. TELA provided accurate; concise; in-depth; and practical coverage of topical employment law developments. See @tonytrotman on X (formerly known as Twitter) for the latest employment law developments.
6 April 2010
Whistleblowers’ Act must be interpreted purposively
1 April 2010
Overlapping Disciplinary and Grievance Issues
In Samuel Smith Old Brewery (Tadcaster) v Marshall [EAT/0488/09], Mr and Mrs Marshall were pub managers. Their employer instructed them to reduce their staff working hours by about 50% for the pub's survival following a sharp decline in pub trade.
The managers refused to do so. A grievance hearing was held when they complained that the reduction would lead to an unacceptable increase to their working hours. The employer disagreed with their complaint.
After the grievance hearing, the employer instructed the managers to immediately reduce their staff working hours – with a warning that disciplinary action may be taken against them - if they failed to do so. The managers replied that they would not comply with the instruction until a grievance appeal meeting was held.
The employer responded by inviting the managers to attend a disciplinary hearing for their refusal to reduce their staff working hours. The managers replied that they would not attend such a hearing until a grievance appeal meeting was held.
The disciplinary hearing was held in the managers’ absence and they were dismissed for gross misconduct.
EAT’s Decision
The EAT held that the managers’ dismissals were fair.
An employer is not legally required to hold a grievance appeal hearing or exhaust the grievance procedure - before it could hold a disciplinary hearing - if the reason for the disciplinary action is related to the employee’s grievance.
Where an employer holds a disciplinary hearing before the grievance procedure is exhausted that does not automatically mean that the employer is acting unreasonably.
The managers had refused to reduce their staff working hours for over three months and they could have explained the reasons for their refusal at the disciplinary hearing.
The EAT also stated that the “old” ACAS Code of Practice did not require an employer to exhaust the grievance procedure before holding a disciplinary hearing.
Comment
The EAT’s statement about the “old” ACAS Code of Practice also applies to the “new” ACAS Code that came into force on 6 April 2009.
Paragraph 44 [Overlapping grievance and disciplinary cases] of the “new” ACAS Code only refers to a case where an employee raises a grievance during the disciplinary process.
The managers refused to do so. A grievance hearing was held when they complained that the reduction would lead to an unacceptable increase to their working hours. The employer disagreed with their complaint.
After the grievance hearing, the employer instructed the managers to immediately reduce their staff working hours – with a warning that disciplinary action may be taken against them - if they failed to do so. The managers replied that they would not comply with the instruction until a grievance appeal meeting was held.
The employer responded by inviting the managers to attend a disciplinary hearing for their refusal to reduce their staff working hours. The managers replied that they would not attend such a hearing until a grievance appeal meeting was held.
The disciplinary hearing was held in the managers’ absence and they were dismissed for gross misconduct.
EAT’s Decision
The EAT held that the managers’ dismissals were fair.
An employer is not legally required to hold a grievance appeal hearing or exhaust the grievance procedure - before it could hold a disciplinary hearing - if the reason for the disciplinary action is related to the employee’s grievance.
Where an employer holds a disciplinary hearing before the grievance procedure is exhausted that does not automatically mean that the employer is acting unreasonably.
The managers had refused to reduce their staff working hours for over three months and they could have explained the reasons for their refusal at the disciplinary hearing.
The EAT also stated that the “old” ACAS Code of Practice did not require an employer to exhaust the grievance procedure before holding a disciplinary hearing.
Comment
The EAT’s statement about the “old” ACAS Code of Practice also applies to the “new” ACAS Code that came into force on 6 April 2009.
Paragraph 44 [Overlapping grievance and disciplinary cases] of the “new” ACAS Code only refers to a case where an employee raises a grievance during the disciplinary process.
19 March 2010
Time off to Train: has the employee been working for 26 weeks?
The Employee Study and Training (Qualifying Period of Employment) Regulations 2010 [SI 2010/800] have legally confirmed that an employee’s right to time off to train or study is subject to being continuously employed for at least 26 weeks.
From 6 April 2010, the right will apply to an employee in a business employing at least 250 employees.
From 6 April 2011, the right was expected to be extended to an employee in any business. However, on 16 February 2011, the Government announced that the extension of the right to an employee in any business would be delayed.
Note: an employee may be continuously employed for 26 weeks or more even though a contract did not exist during a part of that period (e.g. there was a temporary cessation of work).
Also see Time off to Train: do you employ at least 250 employees? and New right for Time off to Train comes into force on 6 April 2010.
From 6 April 2010, the right will apply to an employee in a business employing at least 250 employees.
From 6 April 2011, the right was expected to be extended to an employee in any business. However, on 16 February 2011, the Government announced that the extension of the right to an employee in any business would be delayed.
Note: an employee may be continuously employed for 26 weeks or more even though a contract did not exist during a part of that period (e.g. there was a temporary cessation of work).
Also see Time off to Train: do you employ at least 250 employees? and New right for Time off to Train comes into force on 6 April 2010.
New Guide on Vetting and Barring Scheme
Today, the Government published a guide for employers about the vetting and barring scheme.
The guide is available on the Business Link website.
Source: Home Office.
The guide is available on the Business Link website.
Source: Home Office.
8 March 2010
Dismissal Based on Police Warning was Fair
In A v B [EAT/0206/09], an employee was dismissed on the basis of a police warning that they posed a risk to children even though they had been acquitted of sexually abusing children in Cambodia and did not work with children. The EAT held that the employee was fairly dismissed to avoid the risk of serious damage to the employer’s reputation.
The EAT said that where an employer has received a warning about an employee from the police (or a similar body), it must:
1. Adopt a critical approach towards the warning to determine whether it is reliable.
2. Consider whether the warning is a sufficient reason to dismiss the employee.
Can the Employer Rely on the Warning?
The employer must adopt a critical approach towards the police warning to determine whether it is reliable. The employer may be in a position - either from its own knowledge or from information obtained from the employee - to question the police about the reliability of its warning. The employer should also seek a credible reassurance from the police that its warning has taken all of the relevant factors into account.
However, an employer could not be expected to carry out its own investigation in order to test the reliability of the police warning. It was unlikely that the employer would have the resources or expertise to do so.
The tribunal was entitled to find that the employer had adopted a critical approach towards the police warning. Therefore, the employer could treat the warning as being reliable.
Is the Warning a Sufficient Reason to Dismiss the Employee?
The police warning must provide the employer with a sufficient reason to dismiss the employee.
In this case, the employer was a public body with child-protection responsibilities. The employee’s job involved travelling to other countries. The police was concerned that the employee would sexually abuse children while he was working abroad.
The employer had been officially warned by the police that the employee posed a risk to children – if he was subsequently found to be such a risk – it would seriously damage the employer’s reputation. The damage would be more serious if it was revealed that the employer had been warned about the employee but the employer did nothing about it.
Therefore, the employer had a sufficient reason to dismiss the employee to avoid the risk of serious damage to its reputation.
The EAT expressed its concern that an employee who was dismissed on the basis of a police warning may suffer an injustice [see paras. 48 and 49].
The EAT said that where an employer has received a warning about an employee from the police (or a similar body), it must:
1. Adopt a critical approach towards the warning to determine whether it is reliable.
2. Consider whether the warning is a sufficient reason to dismiss the employee.
Can the Employer Rely on the Warning?
The employer must adopt a critical approach towards the police warning to determine whether it is reliable. The employer may be in a position - either from its own knowledge or from information obtained from the employee - to question the police about the reliability of its warning. The employer should also seek a credible reassurance from the police that its warning has taken all of the relevant factors into account.
However, an employer could not be expected to carry out its own investigation in order to test the reliability of the police warning. It was unlikely that the employer would have the resources or expertise to do so.
The tribunal was entitled to find that the employer had adopted a critical approach towards the police warning. Therefore, the employer could treat the warning as being reliable.
Is the Warning a Sufficient Reason to Dismiss the Employee?
The police warning must provide the employer with a sufficient reason to dismiss the employee.
In this case, the employer was a public body with child-protection responsibilities. The employee’s job involved travelling to other countries. The police was concerned that the employee would sexually abuse children while he was working abroad.
The employer had been officially warned by the police that the employee posed a risk to children – if he was subsequently found to be such a risk – it would seriously damage the employer’s reputation. The damage would be more serious if it was revealed that the employer had been warned about the employee but the employer did nothing about it.
Therefore, the employer had a sufficient reason to dismiss the employee to avoid the risk of serious damage to its reputation.
The EAT expressed its concern that an employee who was dismissed on the basis of a police warning may suffer an injustice [see paras. 48 and 49].
4 March 2010
Penalty of £10,000 for Breaching Information and Consultation laws
In Darnton v Bournemouth University [EAT/0391/09], the EAT held that the Central Arbitration Committee was entitled to impose a penalty of £10,000 on Bournemouth University for its failure to arrange the election of information and consultation representatives. The University did not have a reasonable excuse for failing to arrange such an election and the amount of the penalty was appropriate.
Also see Government's statement about information and consultation agreements may be wrong.
Also see Government's statement about information and consultation agreements may be wrong.
2 March 2010
Blacklisting of Trade Union Members
From 2 March 2010, the Employment Relations Act 1999 (Blacklists) Regulations 2010 [SI 2010/493] will outlaw the blacklisting of workers for their trade union membership or activities.
It will be unlawful for an employer to dismiss or not employ a worker because they appear on a blacklist.
The Government's guide entitled "The Blacklisting of Trade Unionists" is available on the Deparment for Business, Innovation & Skills website.
It will be unlawful for an employer to dismiss or not employ a worker because they appear on a blacklist.
The Government's guide entitled "The Blacklisting of Trade Unionists" is available on the Deparment for Business, Innovation & Skills website.