Suspension; Whistleblowing and Covert Recordings and Agency Workers – Lessons from Key Cases

2019 has been a year of all things Brexit – it feels as though it has consumed everything, however employment cases are continuing to be heard and interesting decisions delivered – decisions which Employers should take note of and learn from. In this article we will explore a few of these cases and examine how they can impact the decisions we make on matters such as protected disclosures to suspensions:

Okwu v Rise Community Action

Rise Community Action is a charity organisation providing support for individuals impacted by domestic violence, female genital mutilation and HIV. The Claimant was employed as a domestic violence and female mutilation specialist worker. The Organisation raised a number of issues with the Claimant’s performance during her probationary period and subsequently extended her probationary period.

Following this the Claimant submitted a letter to the Organisation raising a number of concerns specifically that the Charity was acting in breach of data protection legislation by failing to provide the Claimant with a mobile phone and secure storage when she was dealing with confidential and sensitive personal data. Rise Community Action terminated the Claimant’s employment within her probationary period on the basis of her performance and she subsequently brought a claim that she had been unfairly dismissed for making protected disclosures (whistleblowing).

The Employment Tribunal dismissed the claim, finding the matters raised by the Claimant were not in the public interest but concerned the Claimant’s own contractual position. The Tribunal concluded this also applied to matters relating to potential breaches of data protection. The decision was appealed.

The Employment Appeal Tribunal held that whether or not the disclosure was in the public interest, or true, the Tribunal had failed to ask whether the Claimant had a reasonable belief that her disclosure relating to breaches of data protection legislation was in the public interest.  In light of the sensitivities surrounding the information, the Employment Appeal Tribunal said it was hard to see how it could not have been. The case has been referred back to Tribunal to be reconsidered in light of this.

This case is a reminder to Employers that an important consideration in any whistleblowing complaint is whether the employee raising the complaint has a reasonable belief in the protected disclosure.

Read the full review of Okwu v Rise Community Action [2019]

Phoenix House v Stockman

During the Tribunal claim, the Claimant disclosed she had made a covert recording during employment. The Claimant was successful in her unfair dismissal claim and it was argued that her compensation for unfair dismissal should be reduced on just and equitable grounds and under the Polkey principle, to reflect her misconduct during employment (i.e. making this covert recording).

The case went to the Employment Appeal Tribunal and it was clarified that there can be circumstances in which covert recordings might be misconduct but equally there are circumstances when it is not. The EAT did offer the view that it is good practice for either the employee or employer to say if there is any intention to record a meeting and failing to do so is generally misconduct except in exceptional circumstances.

There are many reasons why an employee may covertly record a meeting and this needs to be taken into account, along with the nature of the meeting itself. It should be noted that Tribunals have offered the view that they rarely see covert recordings being listed as gross misconduct in disciplinary policies and procedures.

Read the full review of Phoenix House Ltd v Stockman [2019]

London Borough of Lambeth v Agoreyo

In this case a primary school suspended the Claimant after two teaching assistants claimed she had used excessive force against two young pupils with special educational needs. The Claimant claimed it was a ‘kneejerk’ reaction and a breach of the implied term of trust and confidence between the two parties. She resigned and subsequently brought a claim.

The County Court held the school had reasonable and proper cause for suspending the Claimant and dismissed the claim. On appeal to the High Court, it was found that it had not been necessary to suspend the Claimant and on this basis the suspension was a breach of trust and confidence. The decision was 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 to apply was whether the Head Teacher had reasonable and proper cause to suspend, and the County Court was entitled to find that it did. The Court of Appeal held the High Court was wrong to adopt a test of whether it was necessary to suspend as this was setting the bar too high.  

Suspension is becoming an increasingly contentious issue and Employers should ensure all circumstances and options to have an employee remain in work are considered before a decision to suspend is taken. It is important that if a decision to suspend is made, the rationale and decision making process is clearly documented.

Read the full review of London Borough of Lambeth v Agoreyo [2019]

Kocur v Angard Staffing Solutions Limited

This case examined whether an agency worker was entitled to be offered the same number of working hours as those undertaken by permanent employees. It was found that whilst the Agency Workers Regulations entitle agency workers to the same conditions of work as permanent employees, this does not extend to an entitlement to be offered the same number of hours of work as performed by a permanent employee.

It was found that the purpose of the Regulations was to ensure the equal treatment of agency workers and permanent employees while at work and in respect of rights arising from their work; however the Regulations do not regulate the amount of wok which agency workers are entitled to be given.

This case emphasises the need to ensure equal treatment between agency workers and permanent employees but also highlights how the two different statuses differ.

There have been many more interesting cases throughout 2019 – if you would like to hear more about them and what steps your Company may need to make in light of decisions handed down throughout the year, we are holding our Employment Law Update on Thursday 12 December 2019 at 8:30am-10am. Elliot Duffy Garrett Solicitors will facilitate this breakfast briefing so please do email us for more information.

Read the full review of Kocur v Angard Staffing Solutions