IGA News

Be Aware - June 2019

Be Aware - June 2019

31 May 2019

Is it unfair to dismiss an employee for advocating a particular religion or attempting to convert others within a work environment?

A person’s religion is a very personal belief, and employees are rightly protected from discrimination based on their religion. The courts have, over the years, been asked to rule on a number of cases where there are restrictions by employers on how an employee’s religion manifests itself in the workplace.

Whilst an employee’s religion is to be respected, how it manifests itself in the workplace can affect other staff and customers. Can an employer place reasonable restrictions on an employee and is it unfair to dismiss an employee where those restrictions are breached? Not if the religious behaviour amounts to proselytising and is improper, held the Court of Appeal in Kuteh v Dartford and Gravesham NHS Trust.

The Claimant was a nurse, working in a pre-operative assessment role. During assessments, she often took the opportunity to talk to patients about religion. Complaints were made about this by patients, leading the matron to speak to the Claimant about the inappropriateness of her actions. She assured the matron she would no longer initiate conversations with patients about religion. She then breached that assurance, including by saying prayers for patients and asking a patient to sing a psalm with her. Disciplinary proceedings were brought, and the Claimant was dismissed.

The employment tribunal found the dismissal fair and the Employment Appeal Tribunal (EAT) refused permission to appeal. On appeal against that refusal, the Claimant complained that the tribunal had failed to distinguish between true evangelism and improper proselytism in considering the impact of the right under Article 9 of the European Convention of Human Rights to manifest religion on the fairness of the dismissal.

The Court of Appeal dismissed the appeal. The Court considered that the Claimant had acted inappropriately both by improperly proselytising to patients and by failing to follow a lawful management order. Given that the disciplinary process was fairly carried out and the conclusion reached was reasonable, the appeal was dismissed, and the fairness of the dismissal was upheld.

Comment

Employers should always tread very carefully regarding an employee’s religious beliefs and observances. Where possible you should always take reasonable steps to accommodate them as this will not only result in a better employee/employer relationship but will also avoid unnecessary disputes.

The key to this case was that the employer had received complaints from patients and had then followed a full and detailed disciplinary procedure to investigate these complaints and then put in place only the minimal possible controls. Should you find yourself in this situation we strongly advise that you take advice before taking any steps. Remember, as an RMIF member you have access to the RMIF legal helpline for telephone advice.

Employment contracts for new employees

“I had an employee who started with me but then left after 3 weeks. I never found the time to issue him with a contract of employment. He is now saying he will take me to an Employment Tribunal, is there a risk?”

An employer must give all employees a “Written Statement of Employment Particulars” if their employment lasts a month or more. This is a right under the Employment Rights Act 1996, contained in Section 1 of that Act and is sometimes called a “Section 1 Statement”. This document isn’t technically an employment contract, but includes all the main terms and conditions of employment. The law says that an employer must provide a Section 1 Statement within two months of the start of employment.

There are rights to bring claims at an Employment Tribunal if an employer is in breach. These can include clarification of the terms and an employee can also sometimes gain compensation (2-4 weeks’ pay). This claim cannot be brought in its own right and has to “piggy back” on another successful claim.

In the above scenario, as the employee only worked for 3 weeks, the obligation wasn’t triggered because the employment has to last for a month or more.

Interestingly, in a recent case, Govdata Limited v Denton the Employment Appeal Tribunal (EAT) has also given a decision that employers will welcome. The EAT clarified that, where an employer provides a written Statement of Terms and Conditions late, but before a case begins in the Employment Tribunal, then the employee cannot claim the additional compensation. The case, however, should not be used as a reason for employers not to issue Statements of Particulars as soon as possible, as it is generally good practice and helpful a clarification of the terms, should there be any dispute between the employer and employee.

A final point to note. Next year, the right to a Section 1 Particulars of Employment is to be extended. From April 2020 onwards, the right to a written Statement of Particulars of Employment will extend to all ‘workers’ (this is a broader category than just employees).

Witness anonymity in employment disputes

“An employee has disclosed misconduct about another employee and wishes to remain anonymous. Can they remain anonymous and how should I deal with this?”

An employer receiving such disclosures faces a difficult balancing act between the need to protect informants who might genuinely be in fear of reprisals and the need to give accused employees a fair hearing.

Anonymity

Anonymity in disciplinary proceedings is potentially problematic because it can hinder accused employees’ ability to effectively challenge the evidence against them. As matter of good practice, an employer should investigate why a witness wants anonymity and explore what can be done to persuade him/her to provide information openly.

Ideally, evidence in a disciplinary case is given openly. Where this is not possible, employers should have regard to the principles set out in Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235:-

  • Informant’s statements should be reduced to writing (although they might need to be edited later to preserve anonymity) and made available to the employee with the alleged misconduct
  • In taking statements, it is important to note the date, time and place of each incident, the informant’s opportunity to observe clearly and accurately, circumstantial evidence, the reason for the informant’s presence or any small memorable details; and whether the informant had any reason to fabricate evidence
  • Further investigation should then take place, corroboration being clearly desirable
  • Tactful enquiries into the character and background of the informant would be advisable
  • A decision must then be taken whether to hold a disciplinary hearing, particularly when the employer is satisfied that the informant’s fear is genuine

An employer will generally be able to place greater reliance on statements from several anonymous informants, rather than just one. Corroboration is hugely important when a disclosure is entirely anonymous i.e. the informant’s identity is unknown even to the employer. As part of whistleblowing arrangements, many employers offer employees the option of reporting wrongdoing using an anonymous telephone hotline. Similarly, the internet provides a wide variety of means to provide information anonymously. The problem for employers who receive information in this way is that the motive and character of someone whose identity is unknown is a matter of speculation. If an employer has no other means of testing the truth of the allegations – such as factual corroborating evidence, or a witness statement from an employee – dismissal based on the anonymous tip-off alone runs a substantial risk of being found unfair.

Customers, suppliers and members of the public may come forward with relevant information about employee misconduct. The Court of Appeal in Leach v Office of Communications [2012] ICR 1269 held that the employer must assess for itself, as far as practicable, the reliability of what it has been told, by checking among other things, the integrity of the informant.

Comment

There is no general right to anonymity for employee informants. A failure to provide a witness with anonymity will only amount to a breach of contract if doing so is calculated or likely to damage the relationship of trust and confidence between employer and employee. If an employer provides an informant with an assurance that their identity will not be disclosed to the accused during disciplinary proceedings, this does not bind courts or tribunals exercising their power of disclosure. Thus, an employer cannot guarantee the informant anonymity in the event of subsequent legal proceedings.

Vehicle Repair Faults

“I have recently replaced a vehicles brake discs as part of a service, but the customer is still having problems braking and it now needs new callipers. The customer is telling me that I must do it for free as I did not repair his vehicle?”

It is not uncommon that Consumers will expect a repair to fix the entire problem, and generally speaking they are likely to be right. As always though reality is a bit more complicated.

The first thing we need to consider is why the additional work is required and what you were asked to do. If the work is required because you have fitted the brake discs incorrectly then you will be liable for the repair work that flows from what you have done wrong.

If the customer asked you to replace his brake discs, then provided you have done the work correctly and with a reasonable level of care and skill you are not in breach of the contract. You did not diagnose the work required or recommend the work and as such there is no liability to do any work at all, even if the brake callipers do need replacing.

It gets more difficulty where you have been asked to diagnose the fault; or where the issue is obviously not the brake discs and you did not draw this to the consumer’s attention. In addition to doing the work as agreed and with a reasonable level of care and skill, you also have a duty to diagnose any faults with a reasonable level of care and skill.

This does not mean you must be right first time every time. Where a repair or diagnosis would follow a logical and reasonable step then the fact that you have followed that process and the issues is more complicated is not a breach of contract.

Taking the above example. The brakes may be fading for many reasons. If there is no evidence of a faulty calliper, the brake pads were still serviceable, and the discs appeared pitted and worn then a reasonable mechanic would not incur the significant cost of replacing callipers. Where it then turns out that the callipers were the cause of the fault, or even part of the cause then whilst more work is required this is not because of any wrongdoing on your part.

Conclusion

Repairing and diagnosing a vehicle is one of the riskier activities a garage can undertake. However, provided you accurately inform and advise your client, and keep a record of the same. You should be able to deal with most complaints.

As always, 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 any stage for advice and assistance as appropriate.

General Note

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 the direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.