Be Aware - April 2019
“When may an employer suspend an employee without breaching the implied term of trust and confidence?”
When it has reasonable and proper cause for doing so, held the Court of Appeal in London Borough of Lambeth v Agoreyo.
A primary school suspended a teacher after two teaching assistants accused her of using excessive force against two young pupils with special educational needs. She claimed it was a ‘kneejerk’ suspension and thus a breach of the implied term of trust and confidence. She resigned and brought a claim.
The County Court held that the school had reasonable and proper cause for suspending her, and dismissed her claim. On appeal, the High Court held that it had not been necessary to suspend her, and therefore the suspension was a breach of trust and confidence. She appealed to the Court of Appeal.
The Court of Appeal agreed with the County Court and held there was no breach of trust and confidence. The correct legal test was whether the Head Teacher had reasonable and proper cause to suspend, and the County Court judge was entitled to hold that it did - a decision which could not be overturned on appeal. The High Court was wrong, it said, to seemingly instead adopt a test of whether it was necessary to suspend - that was setting the bar too high.
Accordingly the teacher’s claim that her suspension was a breach of contract failed.
Suspension should always be a last resort as it is not a neutral act. Where an employer is considering suspension in order to investigate a disciplinary there should be a clear consideration as to whether the suspension is reasonably required, and whether it can be justified. Where an employer does suspend an employee, there should be a clear note made of the decision, including the reasons for the suspension. Provided there are good reasons to suspend and a note is kept (and the employee is paid during any suspension) the risks of such an act can be reduced.
Automatic Unfair Dismissal: Asserting a Statutory Right
Employees who do not have the requisite length of service (2 years) to claim normal unfair dismissal can still claim automatically unfair dismissal under 2 years on a number of grounds. Some of the more common grounds on which this is claimed include where a dismissal is linked to discrimination, or whistleblowing or where the employee can assert the reason or principal reason (if there is more than one) for the dismissal is because he or she has asserted a statutory right (Section 104 of the Employment Rights Act 1996).
In Spaceman v ISS Mediclean Limited the Employment Appeal Tribunal (EAT) has given a decision which potentially assists employers and narrows protection of that right.
The Claimant was summarily dismissed from his job as hospital porter, following disciplinary proceedings for alleged sexual harassment and assault. He brought a claim against ISSM Ltd for automatically unfair dismissal contrary to Section 104(1)(b) ERA, which applies where the reason for dismissal is that the employee alleged that the employer had infringed a statutory right. The Claimant’s case was that he was dismissed by virtue of an allegation he made at his disciplinary hearing – namely, that ISSM Ltd had already made up its mind to dismiss him, i.e. infringing his statutory right not to be unfairly dismissed. An Employment Judge accepted that this was the reason for his dismissal. However, he struck out the Claimant’s claim on the basis that Section 104(1)(b) requires an allegation that the employer had infringed a statutory right (as opposed to an allegation that the employer threatened to infringe a statutory right). The Claimant appealed, arguing that the Judge had taken an unduly narrow approach.
The EAT dismissed the appeal. It found that protection under Section 104 requires an allegation by the employee that there has actually been an infringement of a statutory right. An allegation that there may be in the future is not sufficient. In summary the employee must be saying or alleging that “you have infringed my right” not merely “you will infringe my right”.
A word of caution however, the EAT also mentioned that where any statutory rights were derived from EU law rather than domestic law (at issue here) there was a question as to whether Section 104 could be written more extensively.
Employers should be alert to the automatically unfair reasons for dismissal. The RMIF legal helpline commonly encounters situations where employees with under 2 years’ service are making allegations against the company before they are dismissed and it is important to ascertain whether or not such allegations could fall within protection of automatic unfair dismissal or not.
“I run a small body repair MOT workshop. I sometimes have to leave my technician working on his own when I am out of the business, is that okay? Is there any law in this area?”
Employers who have employees who are likely to be working on their own need to carry out a risk assessment. The Health and Safety at Work Act 1974 ensures a duty of care on employers to ensure the health, safety and welfare of their employees. The Management of Health and Safety at Work Regulations also require employers to carry out a risk assessment.
In the above situation a bodyshop or MOT testing area is likely to be a relatively hazardous environment. The employer is required to consider the risks posed to a lone worker in such an environment. Where a risk assessment shows it is not possible for the work to be done safely by a lone worker, arrangements for providing help or backup should be put in place. A risk assessment might include that it is not safe for one person to work alone, examples include working in confined space or work involving electrics or other dangers where two people might be required to be present.
Precautions should be planned for foreseeable emergencies e.g. fire, equipment failure, illness and accidents etc.
The following questions should be asked by the employer:
- Does the workplace present a special risk to the lone worker?
- Is there a safe way in and a way out for one person? Can any temporary access equipment which is necessary, such as portable ladders or trestles, be safely handled by one person?
- Can all the plant, substances and goods involved in the work be safely handled by one person? Consider whether the work involves lifting objects too large for one person or whether more than one person is needed to operate essential controls for the safe running of equipment
- Is there a risk of violence?
- Are women especially at risk if they work alone?
- Are young workers especially at risk if they work alone?
- Is the person medically fit and suitable to work alone?
- What happens if the person becomes ill, has an accident or there is an emergency?
GDPR: Penalty Charge Notice on Courtesy Car
“I have recently received a Penalty Charge Notice from a parking company regarding one of my courtesy vehicles. Can I pass the driver’s details on to the company or will this breach the GDPR?”
As you are considering disclosing personal data, the GDPR and the Data Protection Act 2018 dictate your responsibilities and the principles to be applied. You are right to be consider the GDPR and we are finding in practice that their impact isn’t as disruptive as initially feared.
Before you consider what personal data to disclose, if any, you need to ensure that this is a valid request for information and that there are reasonable grounds for you to believe your vehicle was involved. Check the information provided and see whether the details are correct and whether it is in fact your vehicle that was involved. If necessary, request further details of any alleged issue.
Once you are satisfied that this is a valid request you need to consider whether the proposed disclosure is lawful for the purposes of data protection. The GDPR identifies 6 grounds for lawful processing:
- (a) The data subject has given consent to the processing of his or her personal data for one or more specific purposes;
- (b) Processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
- (c) Processing is necessary for compliance with a legal obligation to which the controller is subject;
- (d) Processing is necessary in order to protect the vital interests of the data subject or of another natural person;
- (e) Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
- (f) Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
Now it should be remembered that more than one reason may apply. In this case it is likely that the disclosure can be justified under grounds b, c, and f.
Furthermore, where you have a written courtesy car agreement that provides details of when this information will be disclosed, or whether you have contacted the customer during your investigations to see if the request is valid, then you also will be able to rely on grounds a and d.
Where you do provide the driver’s details it is important to only provide the minimum information required. We would advise the name and contract address for the driver.
It is important to provide the driver’s details where you are satisfied that your vehicle was involved as failure to do so will result in the registered keeper becoming liable for any charges. Whilst you should be able to recover these from the driver directly this will be inconvenient and risks further costs.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at vis the direct member helpline or 0845 305 4230 any stage for advice and assistance as appropriate.