Recruitment; Substituting Sickness Absence with Annual Leave; GDPR and Occupational Health; Bullying & Harassment Investigations

Posted in : 'Any Questions' Webinar Recordings on 6 April 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

'Employment Law at 11' is a new series of webinars from Legal-Island in conjunction with O'Reilly Stewart Solicitors. Scott Alexander, Head of Learning and Development at Legal-Island, dicussed questions on the following issues with Seamus McGranaghan, Director at O'Reilly Stewart:

 

Transcript

Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.

Scott: Good morning, everybody. Welcome to the latest webinar of our Employment Law series. I'm Scott Alexander. I'm from Legal-Island and with me is Seamus McGranaghan from O'Reilly Stewart Solicitors. Between us, we have around 50 years' experience dealing with employment law issues and we're here to discuss your employment-related matters. You have sent us in lots of questions so far. You can send in others. There's a little chat box on the right-hand side of your screen, so you can send it in there.

At the end of this broadcast, we promised that we would give you the names of those who have been selected to join Seamus and the team here on our special breakfast seminar on equality laws on the 25th of April to coincide with the Lee v Ashers gay cake case. We don't have a hat big enough for all the entries, so we're going to do the draw later this afternoon. Seamus will let us know who's going to be there. But there will be 12 places available and we will be in touch with some of you to let you know what's happening.

Recruitment and Integrity

So, let's deal with the first question, Seamus. It's I suppose a series of questions, actually. They involve recruitment and integrity. So, let's get to the first one.

Seamus: Okay.

Scott: Q1. I'd be grateful for your advice in respect of recruitment process and asking questions in relation to integrity. Below are the types of questions being considered for inclusion in the process and your advice would be much appreciated.

Seamus: Okay.

Scott: So, it's not quite clear from the questions whether these statements will be on the application forms or raised during or after recruitment process, but the first one is to do with rehabilitation of offenders.

Do you have any criminal convictions—this is the statement—do you have any criminal convictions which are not spent under the Rehabilitation of Offenders Act 1974, which applies to GB, or the Rehabilitation of Offenders, Northern Ireland order 1978, which applies in Northern Ireland. Motoring offences should not be included unless you will be driving a company car. And then it says, if yes, please provide details.

So, if somebody put that on their application form or asked somebody during the process, what's your view on that, Seamus?

Seamus: I think the first consideration that comes into my head is the justification for asking the question and making sure that for the job role that's applied, that this is a relevant piece of information that's required. You could imagine that in the likes of the teaching field or something along those lines this would be a very relevant question. Certainly, there may be follow up in terms of making sure there is a vetting procedure carried out. But I'd say to that, provided that it's justified, I don't have difficulty with the question being asked.

I think also it would be that we're looking at whether or not these convictions are spent or not. I suppose we are taking the person's word in relation to the question being posed and they're replying in relation to that. Maybe it's a difficult question for any applicant to reply to because they may not be aware and they may think their previous conviction is spent when in actual fact it isn't. The real true answer that would be whenever you go through your vetting procedures at that point, I suppose with any of these types of integrity questions, you need to be sure that you're not posing the question in a discriminative way or it's going to raise any issues for some indirect discrimination happening. You need to be careful.

I think justification is certainly an important aspect of it. I suppose the timing of whenever the question would be asked as well—is it necessary to have it on the application form or is it maybe more prudent to address no matter if there's a serious offer of employment going to be offered at that stage, then do you invoke the question at that point?

Scott: That might depend, I suppose, on your occupation. There are certain occupations such as education where the convictions never become spent, so there's a point in asking that question. Whether "Do you have any criminal convictions ever?" would be something that you could ask another matter. But there's nothing intrinsically wrong with asking that question there and there's nothing intrinsically wrong with an employee or potential employee not declaring something which has become spent, provided it's in an occupation where they can become spent.

Seamus: Exactly. Yes. The other consideration, I suppose, is just about the request for information and the impact that the GDPR will have upon that. Again, I suppose, it's always looking at the reasons for wanting to process the data and to have all the information and making sure that you're following down the line that it's legitimate and that it serves a purpose.

Scott: And, of course, criminal convictions would be special category data and therefore it's probably better that it's not on the application form or there's some kind of protection around it, only certain people can see it. The information that's on there is pretty personal if you declare it.

Seamus: Absolutely. It's not that everyone goes around telling people about their past convictions, whether spent or not. It's a very personal piece of information. So, I think you just need to give careful thought to that.


Scott:
Q2. Have you ever been subject to bankruptcy proceedings or court proceedings in the UK or any other country or are there any proceedings pending? If yes, please give details?

Seamus: That's an interesting one because it's one that you wouldn't necessarily come across as much as maybe the previous example there. But I can see it certainly being relevant. Certainly, within our practice as solicitors, there are difficulties there if you've been declared bankrupt. So, if you're going for a job or maybe if you're working in a bank or in a financial arena, that would be an important aspect as well. If you were applying for a role as an administrator or something on those lines and you had a bankruptcy, it would certainly raise concerns as far as yoursuitability to do the role. Again, for me, it's about the justification, making sure that it's a correct question to ask.

Scott: It might not be appropriate for a bricklayer or a joiner or something like that.

Seamus: Exactly.

Scott: But if you're in financial services or in a company director type thing, that would be more appropriate.

Seamus: Yeah, absolutely.


Scott:
Q3. Are you or have you ever been a director of a company or do you own more than 15% of any corporate body? And again, if yes, give details. 

That would be presumably something on the application form in the application process.

Seamus: Yeah. This is a strange one in the sense that I would imagine this is more a post-offer type question to be asked. I couldn't imagine how this would impede the offer of a role unless there's some sort of tight restrictive covenants contained within the agreement. Maybe a service agreement at high level where you're saying that the person has to devote their whole time and attention to the role and you're really looking around here as to can the person do that? Are they going to be doing the role but have a 15% interest in another company? That's the flavour I would see that at as well.

Certainly as well, I know within certain professions you have to make a declaration about the directorships that you hold and there may be some regulatory bodies that require that information. The other thought I had in terms of the element of a director of a company is that if you were going to be appointed as a director in the company, Companies House sometimes require to know what directorships you hold as well. Again, those, for me, lie on the outskirts of whenever you come to make an offer. I'm not sure how to make an offer in the relevant cases for that question to be asked. There's nothing problematic in asking the question.

Scott: I'm a governor in the Southern Regional College and I have to declare my interest every year at the start of the process to make sure there's no conflict there. It's a perfectly valid thing to ask.

Seamus: Absolutely.

Scott: They finish off by saying the form includes the declaration, "I declare the information given above is true and that any false, incomplete, or misleading information that I give may make me liable, if employed, to dismissal." So, what about that? Where people say, "If I told you any lies, I may get sacked. I accept that."

Seamus: I think there's no huge difficulty with that, other than using the word ‘dismissal’. I would prefer to say maybe ‘disciplinary proceedings’ because you wouldn't want—obviously, with any dismissal, there has to be careful consideration given to any penalty or outcome and you don't want anyone saying, "Well, you've pre-judged already. I'm going to be dismissive because you've written it down here and this is evidence of it."

So, I'd maybe prefer to say along the lines that you may be subject to disciplinary action. That's a trust and confidence issue and it's probably a dismissal on the basis of some other substantial reason and again, you'd have to make sure the dismissal is proportionate and reasonably.

Scott: You're listening to Employment Law at 11:00 with Scott Alexander from Legal-Island and Seamus McGranaghan from O'Reilly Stewart. We've received some questions. We have some via the Legal-Island website and we've also had them on a post-webinar survey that you replied to. So, quite a few of them came through there. I've had a few to my mailbox at scott@legal-island.com. Don't send them in now because my phone is off. I won't be able to see them. Use the chat box. You'll see it on your screen.

If you have any questions on any employment law issues, we'll try and get through them. If we can't, we'll hold them all until next month. I can see you sending in the questions, but I keep them anonymous. So, Seamus never sees them, nobody else hears them, but they're coming to me. So, send them in. The webinar will last 30 to 45 minutes. It depends on how many questions you send in and how many we can get through. But like I say, if we can get through them all today, we shall get through them all eventually.

Today's webinar will be recorded so you'll be able to screen it later on, about an hour or so from now on the Legal-Island website. We'll also have a searchable transcript of everything that's been said. We usually have that within a week or two. You can see all the previous ones. If you go into the resource section, you can see all the previous ones, you can listen or you can search the transcript.

We're also working at the moment on breaking down all the questions to make it easier to find stuff, but that will take us a little bit as well. We've got other questions that have been pre-submitted, recruitment questions we've had. We've got substituting sickness absence with annual leave. We'll deal with that in a moment. GDPR and occupational health will be coming up and we've got bullying and harassment, particularly investigations and third-party harassment.

Recording Conversations in the Workplace

Q4. We have an interesting problem this week where a member of staff had put their mobile phone on record and was recording conversations taking place in the office when he left the room. He was worried staff were talking about him. There is quite a bit of jurisprudence on the admissibility of covert recordings, but that's not the concern. In this scenario, the other staff members realised this was happening, the recordings, and have complained to management. It may result in a disciplinary hearing for the individual concerned for a breach of privacy and trust and confidence.

Seamus: This is an interesting one. So, essentially what we have, just to break that down a bit, is we have an employee who is taking recordings of colleagues after he or she leaves the room, probably concerned their colleagues are talking about them or making negative comments about them. The first protocol that comes to mind is is there a clear policy and procedure in place within the workplace about recordings? I certainly would see that come across when we're dealing with the likes of disciplinary investigations or disciplinary processes or grievances, whether it would be a clear policy to say that recordings are not permitted.

Scott: I've never seen a general policy that says you're not allowed to record your conversations or covertly record people because it's so obvious it's not what you do.

Seamus: There's clearly at the back of this a huge issue concerning relations between the colleagues if we're getting to the point where they're making recordings of each other. Where there isn't a clear policy, we are back to data protection at this point and what the Information Commissioner's Office has to say, which is you can't record unless there's consent to it.

I think that where there have been recordings taken place and there has not been consent provided, you are certainly at the point of looking at possible disciplinary proceedings against the employee who has taken those recordings, whether that's on the basis that there hasn't been consent or there's a breach of the workplace policy, again, I think it would depend on the nature of the recordings. The reason why the recordings were taken as to how far the employer could go with any penalty, but I think you're at a trust and confidence issue with an employee that would do that.

The other side of it then, just after some thought on this question, the other side and the more interesting aspect for me is really what does the employer do? We know that our audience is from an HR and mainly HR background. What does the HR officer do if an employee approaches them and says, "Here's a recording of my phone, I want you to listen to what these two people in the office have been saying about me. I find it's discriminatory, it's unfair. I feel I'm being bullied and harassed." There are all sorts of questions that arise there.

The question then is does the HR officer say, "Sorry, did you get consent? If you haven't got consent, I'm not listening to the recording, take it way?" Or does the HR officer say, "I'm in a quandary here. You're telling me there's something on the phone that's been said. You're coming to me with a grievance and complaint about that. Should I listen to it?" It produces an issue there, I think, for the employer as to what the employer should do.

Again, is there a policy and procedure in place in respect of that? I think the reality is where there is a complaint being made, it should be investigated. It may be that the HR advisor will listen to hear what exactly has been said. The outcome of that could be that there are disciplinary proceedings taken against the employee who recorded them, but also the employees who made the comments.

But it reminds me a tribunal case that I have that’s worthwhile flagging up because sometimes, there's an assumption that just because there's been a covert recording, when it comes to a tribunal hearing, that would be inadmissible. We've all had those cases where we stated at a disciplinary meeting or a grievance meeting and we said at the start of it there would be no recordings taken.

We actually record that in the minutes as well, just to make sure everybody's clear about it. And then when we get to the tribunal hearing, all of a sudden either through the discovery process or just before the hearing or at the hearing even, they'll produce recordings that have been taken. Where does that leave the parties and where does it leave the tribunal?

This case I had and the point I wanted to make on it is I had a client//claimant I acted for a in a tribunal case. It was a constructive dismissal case where he resigned from his employment. It was a tough case to win to start with. We went down the tribunal route in terms of the constructive dismissal. The basis of what happened as that the employee was off on long-term sick leave. He was required to attend his place of work to collect sick pay on a weekly basis and anytime he went there, he felt that he was being intimidated and threatened.

The last occasion that he went, he brought his phone and he recorded the conversation that happened. In actual fact, he had been threatened with assault at that meeting. He never disclosed the recording at all to me until we were close to the hearing and at that point, we got a transcript and we served it on the other side. They were very clear they were objecting to it and the transcript shouldn't be included within the hearing bundle.

So, we end up before the tribunal panel. We advised the panel that we have a recording of a meeting. The employment judge almost staged a mini-hearing within the hearing itself. The outcome was essentially that the employment judge decided that she would listen to the recording and she would make a decision whether or not the panel should hear it. She did that and decided the panel should hear the recording.

The threat was clearly recorded at the time. It was there for all to see even though it had been denied and continued to be denied as the case ran. We were successful with the case, but I have no doubt we wouldn't have been successful without the recording. So, the point is don't assume because it's a covert recording that the tribunal will not want to hear it.

Scott: Okay. Assuming there's nothing bad or horrible comments on the recording, you've still got an underlying issue of a lack of trust.

Seamus: Absolutely, yeah.

Scott: This employee felt so deeply about something that he felt he had to record. The other two, now that they've been recorded and they don't know what's happening, they're not going to trust—it will take an awful lot of mediation or something to put these people back together again. It's going to take some kind of acceptance on behalf of this employee that covertly recording your colleagues is not the way to go about repairing a broken relationship. Chatting about somebody behind their backs isn't the way to go about building a relationship either.

Seamus: No. Absolutely.

Scott: You've got long-term issues for certain on this question.

Seamus: There's a bigger issue here for the employer outside of how they deal with it on a disciplinary basis. Does it result in a decision to move one employee to another part of the business where they won't be with those two colleagues? Isn't it possible that we can mediate and get them back together, get them at least on some sort of civil terms, but there's a fundamental problem here, absolutely.

Scott: Okay. There's a couple of things to move on to, sickness absence and annual leave. I see there's a question on annual leave just come in there on the chat box. If anyone else has any questions on anything. Send them on the chat box and we'll try to get to them today

Requesting to Use Annual Leave Instead of Taking a Sick Day

Q5. As a small company, our sick pay benefits are currently not much more than a token gesture to add to the statutory sick paid benefits. When not sick, our employees are asking to use their annual leave to cover the loss of income. I have several reasons in HR as to why we don't want to do this, but what's the legal position?

Seamus: Yeah. I can certainly understand the difficulties this presents. Really, what you don't want to end up at is someone saying, "I'm going to take today off. I'll ring in sick, but tomorrow we'll treat it as a holiday," because, again, I suppose, getting back to the point that we just made, there's a bigger issue here in terms of why is the employee feeling the need to ring in sick or alternatively, if it's marked down as a holiday, do we lose sight of the fact that there's a sickness problem or there's an issue rising in respect to their employee and their ability to come to work.

So, it can be frustrating for an employer, absolutely, when the employee does that or makes a request for it, but it's within the gift of the employer to decide what to do there. Certainly, there are some equations where I can see it could be of benefit for the employee and the employer to use some holidays during a period of sickness. It gets the employee’s holidays used up. It means the employee is not coming back to work with a large number of holidays to take them out, maybe carrying them over to the following year. There are those sorts of arguments on both sides.

Scott: There's nothing legally stopping them.

Seamus: No.

Scott: It's just really not wise. If you're looking at a redundancy matrix and you're basing it on absence, then clearly this is going to skew the process. There's nothing intrinsically in law that says, "I want that day treated as a day's leave." If somebody wants to take a day's leave, they can.

Seamus: That's it. I suppose the other issue as well is you don't want this happening repeatedly to where you get to the point where the employee runs out of holidays or they don't have sufficient holidays later in the year in order to make sure they're recharged and capable of coming to work. The purpose of the holidays . . .

Scott: Is to make sure they're fit enough to continue.

Seamus: It can be very frustrating to an employer. I suppose you feel a loss of control. You feel concerned about an employee that's not playing by the rulebook in terms of holidays and it's that aspect of, "I'll just decide to ring in sick tomorrow and then I'll trade off as I can." There may be legitimate reasons why somebody will do that and say, "Look, I don't want to lose my bonus, my annual bonus every year because I get an attendance bonus if I don't take any sick leave. I prefer to treat that as a holiday." In some circumstances, I think it would be okay. In others, I can see how it can be hugely frustrating.

Holiday Entitlement: Accrued Holidays and Carrying Over

Scott: Q6. An employee's contract of employment states holiday entitlement as 25 days plus 8 recognised public holidays. He was absent from a date in May last year and returned to work in March this year. When calculating his accrued holiday entitlement on return to work might require to include the recognised public holidays—for example, Christmas—that were not taken in his total accrued holidays.

That question there, Seamus, the only requirement to carry forward leave where someone couldn't take it is only 20 days, is that right?

Seamus: Yes.

Scott: So, it's the working time, EU working time entitlement.

Seamus: That's it. Yes. You're looking at your basic entitlement in terms of your holidays [4 weeks’ or 20 days’ annual leave] but you're not obliged to carry over anything above and beyond that. I suppose the other issue is you're looking at what's the format of those holidays? Are they closure days for the workplace? Is the office actually open those days when other people are working? So, there's sorts of issues to consider too.

Scott: Q7. Another question here about trigger points - We also have staff wishing to use annual leave rather than being on sick leave. More often to avoid trigger points in the absence policy, some managers have approved this, others have not. Is there a risk that the lack of consistency applied by management may be deemed discriminatory?

Seamus: Yeah. I think we all aim for consistency across our policies and procedures and how they're applied. We can't be too stringent in that because there may be circumstances where things should be facilitated for other reasons. And exactly where maybe someone is suffering from a disability that you're looking carefully at your trigger points as well and looking at adjustments in those respects. But I think the idea would be if you can keep it consistent, then it's about having a written policy and adhering to that.

Scott: It makes it very difficult if you're going to discipline somebody because they've got absence issues and that person turns around and says, "Hold on, did you see the foreman over in that department over there. They let everybody get away with it," and changed the policy. Consistency is quite important. Whatever line you want to go down is really up to the employer, but to have some departments allowing it and other departments not is not very clever.

Seamus: No.

Scott: Whether it's discriminatory or not, it's not very clever.

Seamus: And it can give value to a claim of discrimination, whether it's inconsistency—that's my experience and probably takeaway point on that is that where there isn't—I'm not saying that it is discriminatory or there's a discriminatory practice going on, where someone can point to someone else and say, "I'm being treated differently. Here are the reasons I think why."

Health Records and the GDPR

Scott: Q8. How will the GDPR affect consent in obtaining an occupational health report about an employee?

Seamus: Well, we know that GDPR comes in around five, six weeks at this point.

Scott: 25th May.

Seamus: The 25th of May. So, we're not far off. In terms of the change that it makes, I don't think it will make a substantial amount of difference in terms of what we're doing at the occupational health level. A couple of aspects of occupational health, I suppose one is getting the employee to go. Second is getting the employee's consent in terms of the information that you're going to provide for occupational health. We all know that we can get those standard forms from occupational health where we tick the boxes and put a bit of information in. Sometimes we might send our own letter across to occupational health, but we are sending information and we are processing data in relation to the employee?

I think really, what we need to look at is this issue of consent. This is a big issue that has come in for GDPR. There's so much focus on consent. We tend to forget about the other ways that we can legitimately process data as well. To go through the first is, is there contractual necessity to process the data?

If we're thinking here in terms of occupational health and arranging appointments and sending information across, whether it's GP and medical records or whether it's just boxes ticked on the form, your contractual obligations with your employee and your employee's contractual obligations with you to be able, in fact, to attend the workplace. I think there's an argument there in terms of it being a contractual necessity.

Being due to the vital interest of your employee is another issue. If you're looking at things like reasonable adjustments for occupational health, getting that information from occupational health is vital to the employee maintaining their ability to work.

Scott: Effectively, don't rely on consent, but even if the doctor says, the OH person turns around and says, "I'm not going to send you that report unless this person consents to it," if they block consent, you're going to have to make your decision on the basis that you don't have the evidence available, you point that out to them and say, "You're not giving us the advice. We're going to have to make it based on the information that we have and it's not going to be in your interest."

So, the bottom line is that consent isn't the only thing in GDPR. We spoke about that with the covert recordings. People might not have consented to it, but tribunals will still listen to it.

Seamus: Yeah, exactly.

Scott: So, consent isn't the be all end all.

Absences Relating to Maternity or Disability

Q9. We have a quarterly bonus in place. One of the criteria is 100% attendance. Am I correct that absence related to maternity or disability should be excluded from this particular criterion?

Seamus: Well, we had a similar question to that.

Scott: We'll come back to that one. That's why I raised that just now, it's similar to another one we got in earlier.

Seamus: It sort of leads into it. I think you need to be careful in terms of those aspects of disability or whether it's maternity. Those aspects are generally protected in relation to treating the person differently. I think that you would need to tread carefully in terms of the loss of the person if it was on the basis of their inability to attend work through disability or a maternity period.

Scott: So, you make some kind of an adjustment. So, say that somebody's off on maternity-related absence during this quarterly bonus that they're getting here, then you would say they've got morning sickness or whatever, we're not going to count that as an absence day, but if they're off with the flu, we'll count that.

Seamus: Even if they're pregnant or not with the flu, if the reason for the absence is the flu, that's the reason and that can be discounted at that point.

Scott: Okay. Let's move on to one or two other questions and then I'll come back. I see some interesting ones coming on the chat box. Hopefully we'll get through some of those. We'll be going as usual to 11:45. If you have to leave early, you can listen back to the stream. It will be on the Legal-Island website on the resource section I would imagine in about an hour or so and we'll have the transcript in a week or two.

Bullying and Harassment

Q10. Could you please set out the laws and requirements relating to bullying and harassment investigations?

Seamus: The key document that I use whenever I'm advising in relation to this and I think it's a really helpful tool for any HR manager would be the Labour Relations Agency." There is a guide to bullying and harassment in the workplace that they have. I think it's tied into the equality commission as well.

Scott: Is this the blue one?

Seamus: Yes, the infamous blue document that they have there. It really sets out the process and the best practice for the employer to deal with it. The main issue is probably dealing with the complaint itself and the first step and that is meeting to discuss the complaint with the employee. So, I suppose whenever you receive the formal complaint, you would invite the employee to a meeting to discuss it and advise them they can be accompanied to that meeting because it's a formal meeting. It's a good idea to tell the employee the process will be treated confidentially. There won't be any problems or any release of information to anyone else at that point.

Obviously, that has to happen in terms of the investigation at a later stage. But you're taking your information from the person that's been in with the complaint and then you're really looking at any witnesses to the complaint as well that they're going to give you those names. You're going to go and investigate it with them as well. It will depend on the nature of the harassment. You may want to separate out the two individuals and you may say if there's an alleged harasser that they don't have any contact with the complainant until the investigation is completed. You may even think about suspension at that point, provided that it's warranted and it's necessary.

Scott: The difficulty here though, Seamus, is that each case has to be dealt with on its merits. It's all very well somebody making an allegation, but the organisation still has to function. You can't suspend everybody.

Seamus: No. I think probably for coming towards a decision to make a suspension, you're probably looking at the seriousness of the complaint. Is a severe disciplinary action going to be warranted if proven? Is there possibility of dismissal? If you're at a very high level in terms of that, it may be that suspension is warranted, but it will not be warranted in all cases and I would have thought in the majority of cases it won't be. But it's just some indication around that.

I think following the initial meeting with the complainant, the manager will then meet with the alleged harasser. You're going to have to outline the nature of the complaint made. That doesn't mean you're handing them a copy of a letter being provided, but you're maybe taking the apt points out as well because sometimes you're adding fuel to the fire here whenever you make full disclosure.

You're making sure that you're giving the harasser an opportunity, that they're clear what the allegations are against them and they've got an opportunity to answer the allegations. Again, are they giving you details of any witnesses? If they are, you'll need to go back and speak to any witnesses, making sure that it is properly investigated. Again, that person is entitled to—the alleged harasser--is entitled to be accompanied at those.

Then you're really into the proper investigation of the complaint. You want clear terms of reference in relation to the investigation and also to work out who in your organisation is going to deal with each step of the process here. I think a really sound point to make is to make sure you keep accurate and detailed records of any minutes you've had or any meetings you've had, whether that's in minute form or otherwise and what's happening all round in terms of meeting with the witnesses and also meeting with the alleged harasser and the complainant as well. I think at that point, you're really into gathering all your information together and reaching an outcome as to whether or not you are at a point where the investigation is going to give you an answer as to whether or not you feel as there's more to be warranted.

Scott: There's debate at the moment thanks to the wonderful Lady Hale about how reasonable an investigation has to be in terms of the Burchell test. Effectively, these still apply. It just says you've got to try to find out as much information as you can based on that information following a reasonable procedure, you may well take action. It's likely if it's bullying and harassment to be at the high end. Therefore, it could well lead to dismissal. That's all. You follow the usual one, two, three procedures that we all know about and don’t need to discuss here.

Seamus: That's it. There's two add-on points in relation to that. One is sometimes it might not be—it could be an allegation of bullying and harassment but it could be something that could be resolved between the parties and maybe you're looking at trying to deal with things informally in the first instance. It could be that the alleged harasser isn't aware even that what they're doing is considered bullying and harassment.

Then the other aspect is tying it all together, having a joined-up process and looking at if there is a disciplinary hearing, what the disciplinary outcome is going to be for the alleged harasser. Either way, if there is a disciplinary process or if there isn't, you're probably looking at some sort of mediation between the parties in order to resolve the situation.

Liability for Third Party Sexual Harassment of Employees

Scott: Q11. Can employers in Northern Ireland be held liable for third-party [non-employee] sexual harassment of employees? I believe they can, but not for other grounds of harassment. Is that really the case?

Seamus: That's it in a nutshell, yes. Those are the circumstances. The sex discrimination regulations were amended in 2008 at the time to bring that in. There's been a couple of interesting cases since then. We've previously talked about the Bernard Manning case. That was slightly different in terms of there was race involved in it. I think it was race and sex involved. Then more recently, this aspect of . . .

Scott: President's Club?

Seamus: Yes.

Scott: The laws changed in GB.

Seamus: It has.

Scott: The employer in the hotel would not be held liable for the actions of the people who attended the President's Club, for instance. But in Northern Ireland, an employer can be held liable if members of staff are sexually harassed by members of the public.

Seamus: Yes, that's it.

Scott: So, if it's on other [discrimination] grounds, they're not covered, or at least the employer would not be held liable under any legislation, as such.

Seamus: Yes, as the employer. We do have the Protection from Harassment Order, the 1997 order. There may be another avenue that the employee can go down, not necessarily be successful against its employer, but there is another avenue there, but essentially in Northern Ireland, be aware that we do have that distinction here.

Advice on Reasonable Adjustments

Scott: Q12. “Reasonable adjustments come up again. Should advice, i.e. a reasonable adjustment provided by occupational health specialist doctors be used or can it be disregarded? Is there any case law substantiated?” So, this is where an OH referral, we've heard that, and the occupational health person says, "You know what, Seamus, you've got to do something to accommodate this person." It would be silly to ignore it.

Seamus: I've had a similar case in the tribunal about two years ago where the employer didn't take the advice of the occupational health and we actually brought the occupational health doctor with us to the hearing. It's a bad mistake to make. I think it's different if you get a report to where you think that it's entirely unreasonable or where it's flawed in terms of its facts or something along those lines. I would say get a second opinion at that point, get another report from somebody else.

But where there are no such problems—the reason you're sending the employee to occupational health is for the employee to be independently reviewed and you're asking for advice from the occupational health doctor. Don't ask for advice that you're not going to take on board or accept is probably the issue there. You'll really have a struggle to justify in a tribunal as to why you hadn't implemented adjustments that have been suggested by occupational health. It may be that you might not be able to facilitate those adjustments, but you certainly have to give them serious consideration and it may be that they're not reasonable at that point.

Scott: So, the occupational health said you've got to put in a lift and you can't afford a lift or it's an old building and you're not allowed to change it, that would be fine. But if they were to bring them back some kind of part-time basis or something like that, you would be silly to ignore that.

Seamus: Absolutely. I think you'd be heavily criticised at a tribunal or a court process if that was what your view was.

Scott: Second question here—in regard to ceasing pay for non-attendance—this is similar to a question we had earlier, Q13. “Should maternity or maternity-related absence be used in regard to ceasing pay for non-attendance?” That could be sick leave or miscarriage and other issues around maternity-related issues. Is there any case law to substantiate this? We discussed the case of Carrabyne v Department for Work and Pensions. So, tell us about that, discounting the maternity-related things, not the flu-type things.

Seamus: That's a 2016 case. It's a fairly recent case. It doesn't involve pregnancy or maternity leave but it did relate to disability. I think the claimant, Mrs. Carrabyne had a problem with depression, which was characterised as a disability. To be fair to Mrs. Carrabyne, she'd done here best in order to manage her disability.

There had been periods of time off, but when everything was looked at and considered and certainly if you read through the judgement, it's put very well in terms of the fact that there were issues through all of the absences. Essentially, she was dismissed from her employment. We should make that a point, first of all, that she was dismissed on the basis of her level of absence. She was saying that her disability-related absences should have been disregarded.

When everything was looked at through examination and cross-examination, it actually turned out there was only four days where she had a stomach bug and wasn't able to attend work. All the other absences were to do with her disability. As I say, she'd done her best in terms of trying to manage that. The tribunal really were swayed by the fact that there were only four days that weren't related to the disability and the point was would you in normal circumstances dismiss someone for having four days' absence and I think that decision was held to be entirely unreasonable.

The shocking factor in a lot of ways to employers is there was £100,000 awarded to Mrs. Carrabyne. It wasn't that there wasn't a valid case for discrimination or anything. It was a serious flaw, £100,000, a big lesson there. I think if we take that and apply that to our miscarriage sick leave. I think if it's certainly a miscarriage, I would possibly characterise it as not being protected under pregnancy/equality legislation. But I would have thought that certainly if it was pregnancy-related or if it was disability-related, then there's protection there for the employee in that respect.

Returning from a Career Break

Scott: Q14. "Are companies obliged to accommodate staff returning from a career break? Is it a reasonableness test and how long should this take?"

Seamus: No reasonable test as far as I'm aware in terms of career breaks. My experience with career breaks tends to be that they need to be well-defined. There needs to be a policy in place for career breaks and there needs to be a clear agreement between the employee and employer when it comes to how the career break is going to operate. Most of my experience in and around career breaks has probably been through advising a number of grammar schools on applications by teachers to take career breaks.

Certainly, there are very clear policies issued by the Department of Education and the Education Authority in terms of how career breaks working in those circumstances, but I think there's a difference between someone having a career break, maybe looking for six months away or a year away, as to maybe an undefined period where someone is looking to take three or five years away.

I think the longer the period, the less reasonable it would be for the employee's expectations to come back into the job they were doing or even for the job to be held open for them. There certainly is a grey area, I think, when you look at our Employment Rights Order as to...

Scott: Continuity of employment.

Seamus: Absolutely. The thing is if you're made redundant while you're on a career break, if you've been on a career break for two years, do those two years still add to your redundancy? There's nothing in place legislation-wise to tell us that. So, really, you're probably looking to the guidance of the tribunal in terms of how that's figured out.

Conclusion

Scott: Okay. Thank you very much, Seamus. Thank you, everybody, for listening. Thanks to everybody at O'Reilly Stewart. This broadcast will be available in about an hour or so. If you go on to the resources pages, you'll find it there.

The next webinar we have is next week, actually. It's not with Seamus. It's with somebody else. It's immigration and Brexit. It's on the 12th. Again, if you go to the events pages, you can find that one there in ‘Forthcoming Webinars’.

I think we also have the next Employment Law at 11:00 webinar there that you can register. That's on the 4th of May. So, if you have any questions for Seamus at the next one, you can come along on the 4th of May and listen in and you can register on the events pages if you like right now. If you enjoyed the broadcast, don't forget to tell your colleagues and peers and if you didn't, keep it to yourself, and, hopefully, we will see you next time. Take care. Bye, bye.

This article is correct at 06/04/2018
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

View all articles by Seamus McGranaghan