Variation of Duties; Dismissal and Police Involvement; Grievances and Duty to Disclose; Compromise Agreements; Whistleblowing

Posted in : 'Any Questions' Webinar Recordings on 3 August 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

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

Topics include:

Transcription

Scott: We should start. This is Scott Alexander here from Legal-Island. I'm with Seamus McGranaghan from O'Reilly Stewart. Welcome to the Employment Law at 11. We're live in Belfast at O'Reilly Stewart's offices here. So, if you hear any noises, it may be a passing bus or one of us laughing or our stomachs grumbling, whatever. It is live.

As well as being live, you can send in any question you like. There's a little chat box on your window there if you send it through. We'll keep them anonymous. We'll ask Seamus today. If we don't get through them all today, we'll hold them over to the next broadcast, which is on the 7th of September. Seamus, our first question is on variation of duties.

Variation of Duties

Q: We are conducting a review of job descriptions (that include a flexibility clause) and wish to vary the duties of an employee. Do they have any legal challenge to this variation?

Seamus: Okay.

Scott: It's quite a complex one, so bear with me, everybody. "My organisation is commencing a review of the job descriptions of a small department due to two vacancies becoming available, as we wish to ensure that we have the right skills to provide the best services," which is laudable indeed. "This review may include amending job descriptions by either removing some duties or including other duties commensurate with grade. We will be carrying out the review in conjunction with the staff. One member of staff is starting to make noises about breach of contract. Now, we have a clause in our job descriptions which states: 'It is important to note that the responsibilities may change to meet the evolving needs of the organisation.’

"This person is a member of a union, although we have no union presence or recognition in our organisation. In fact, there are only two employees here who are union members. The other employee's job is not being reviewed, as they work in a different department. I believe that we are not in breach of contract in this instance as we do have this flexibility clause in the job descriptions. However, should I approach the union to advise of this review, and could the employee have any legal challenge when the job description is amended?"

Seamus: Okay. Well, this is a lengthy question. It has a number of components to it. The basics here, just to sort of recap on it, are that change or amend responsibilities within the role on the basis that it's dependent on the evolving needs of the organisation, which would appear to be sensible because in every business, things do evolve.

We can see here at the start of this question that two vacancies have arisen within the department, which has probably prompted a review of the available resources within the department and they'll be looking at a reorganisation. In essence, essentially, the legal question comes down to whether or not, if you have such a clause in a contract, that enables you then to amend the terms and conditions of the employee.

Scott: For this one, it's not so much the terms and conditions as the duties . . .

Seamus: Responsibilities, yes.

Scott: We'll come to terms and conditions in a minute. But on this one here, they have the clause, "It's important to note that the responsibilities may change to meet the evolving needs of the organisation."

Seamus: Yes.

Scott: They're saying, as time moves on, you may have started as a typist, but you may move on to become a word processor operator, you may bee working on laptops or some other kind of software-type thing. Is that really what that is getting at here?

Seamus: Yeah, I think that it is. Naturally, within any job, there could be parts of the business, due to technology, that will cease and a new element will be created. I think it really is about bringing the staff along with that. Most employees will have an understanding of that, and most of them will want to get on board with if it was a new technology or something like that, to get involved.

But the key thing here really is it's all about consultation with the employee. I mean, I think that if you were just to simply go to the employee and say from Monday morning, you're no longer doing this task and you will be doing this task, you're going to have the employee's back up straightaway.

So it is about consulting and informing the employee about the various things that are happening. I suppose just run through a list of what that might look like, because people often say to me, "Well, what is consultation? What does that mean?" I don't think that it means you have to take the employee into your arms and rock them like a baby through the whole process. But I think it's important that you notify the employee of the proposed changes. You want to do that in advance and well in advance of the changes taking place.

Scott: You mentioned proposed, so if it's a fait accompli, there's little consultation there really.

Seamus: Yes.

Scott: You should be saying, "This is what we're thinking of doing." At the end of the day, they may well have the right to change the duties to some extent, because of this flexibility clause gives the right.

Seamus: Yes.

Scott: But it still has to be enacted reasonably, and that means listening to people, because the employee might have a better idea.

Seamus: Exactly. After the notification, I think that there should be an explanation to the employee as to why the amendments are required and give them an understanding of what's necessary and why it is necessary. My view would always be that it's important to back that up with written notification as well, that it's not just something that's happening orally, that if problems do arise and if the wheels come off and the person goes ahead and resigns and claims breach of contract, at least you've got notes written down and you've got a letter that you've provided or a memorandum provided to the employee or the employees that are affected.

I think also it's important for the employer to have an understanding of what the implications of the change might be for the employee. If it is a technology issue, the employee may have a fear of, "I'm not going to be able to cope with this. I'm not going to be able to do this." They may be very hesitant to get involved in it at all. So have an appreciation of that as well.

Scott: They may need training. It could be a number of things that would stop you being able to implement the change straightaway anyway as an employer.

Seamus: Absolutely. I think then importantly, as you said, you have to listen to what the employee has to say and any representations that they're going to make to you as well. Take those on board. It may be that they're very good ideas. If they're working within the department, they may have the best knowledge as to what would be the most efficient way or the best way of going forward. I think also just work with the employee to address any concerns that they have. So you're trying to bring them along the tracks.

Importantly in this question, there is this aspect of the contract and what it says. It does provide for the employer to make these amendments to the responsibilities. There is a difference, in my eyes, as I see it as a change in your duties and responsibilities and then an overall change to your terms and conditions of employment.

Scott: So if we take the I suppose the more serious, the one that impacts on not just on how you do jobs or little tweaks to your job, but actually could vary your terms and conditions, could be your hours of work, could be your location, it could be your salary, it could be a number of things, you're really looking at variations of terms. We discussed prior to broadcast a couple of cases that we're looking at. One of them was Bateman and others v Asda.

Seamus: Yes.

Scott: That is quite an old case. It had quite a broad and it's something along the lines of the company reserves the right to review, revise, and amend or replace the content of this handbook. That was deemed at the time . . . that's an Employment Appeal Tribunal case in England.

Seamus: It is, yes. That's right.

Scott; So it wouldn't set precedent here. But at the time, that was deemed to be sufficiently flexible to allow Asda to vary the terms and conditions of the few remaining employees who had not accepted the change.

Seamus: Yes. It's going back to 2009. It's a 2009 case. So that's almost 10 years at this point. But it was a very broad-brush approach by the EAT in respect of it. Specifically, what this was about was in relation to the introduction of a new pay regime. I think there was some background that Asda had purchased stores and there might have been TUPE transfers and things like that, and they were trying to align terms and conditions. But the EAT were essentially condoning it and saying if you have a clear and unambiguous contract that allows you to do this, then it's permissible. Things did move on from that. The feeling is things have . . .

Scott: Rolled back a little bit.

Seamus: Absolutely, yeah. There are two cases. There is a case of Sparks and others v Department of Transport. That's a more recent case. Essentially, that's a good case in the sense it was the Court of Appeal. They said that the changes resulted in a detriment to the employee and, therefore, it was unfair and specifically that it wasn't clear within the contract itself, that it wasn't sufficiently clear for the employer to take the step.

There was a prior case as well, Hart v St. Mary's School (Colchester), which was an EAT case. Again, it stepped back from the process of saying, just because you have a clause within the contract, that you can willy-nilly do what you like. They weren't keen on it either. They said that the initial employment tribunal had wrongly interpreted the contract of employment.

As confirmed, a unilateral power of variation on the employer at the stage, and they said that the variation clause contained within the contract — this was a school contract — that it wasn't sufficiently clear or unambiguous to allow for unilateral variation. So there has been a rollback certainly from 2009 in relation to it.

It seems to me that you would need to tread very carefully in relation to these clauses, which I see all the time in terms of employer's contracts that are provided to me to review. You'll often get the call and they'll say, "Well, it allows us to do that in the contract." I just don't think it's as straightforward as that.

Scott: If you're allowed, I suppose the lessons on this one here, even if you are allowed, you're only allowed if it's totally unambiguous. But even if you are allowed and it's totally unambiguous, you still have to act reasonably when you're implementing it. You still have to look at the change and the way it might be, and you have to bear in mind that some of those cases do not set precedent in Northern Ireland.

Seamus: Exactly. I mean I think like ultimately the commentary is saying that, from the Asda store cases, that it's no longer safe for employers to rely on variation clauses. I think that if you have an employee that is unhappy, if they're approached in the wrong way, if they're told that this has happened without the consultation, you're going to have a difficult process with the employee, and ultimately that could result in the employee resigning, claiming breach of contract or constructive dismissal. You end up at a tribunal here.

The first thing that a tribunal will say to you is, "Well, let's look at the consultation process here," because if you've acted as fairly and as reasonably and you've done your best with an employee and the employee is still saying no, the chances are that the tribunal is going to have some compassion for the employer if it has taken all the reasonable steps that it should have done. So the consultation, there's really no getting away from that. Again, consultation is all about presentation. Usually, there's a bit of give and take that has to happen in terms of it.

Dismissal and Police Involvement

Q: "In terms of doing an investigation, what should we be concerned about? What is the ideal timing for this, and how will the police investigation impact on this?"

Scott: Okay. We have another question here on dismissals. That last question might have resulted in dismissal ultimately if the employees refused to vary terms or duties. This one here is on dismissal. "An employee had only been with the company for a few days, met a non-employee on a site. The two had some history and an unresolved dispute, which has no relevance to the current employment. Words were exchanged, and it became a physical altercation."

"It's unclear who threw the first punch, but both parties did attempt to hit the other. One employee is believed to have seen the first strike being made against our employee. Another employee found the injured non-employee and helped him. In the process, he heard the non-employee's version of events, which was that our employee had made the first move."

"The following day, the police subsequently arrested and charged our employee, then released him on bail pending either charges or a determination on whether charges are warranted. There has been no subsequent contact from the police to the best of our knowledge."

So here are the questions. Now, keeping in mind he's only been with the company a few days, Seamus, that might change your answers.

Seamus: Yes.

Scott: "In terms of doing an investigation, what should we be concerned about? What is the ideal timing for this, and how will the police investigation impact on this?"

Seamus: The first apparent point . . . Well, there's two things. First of all, this is a fairly fresh employee. He's joined the company only a few days, a bit of a red flag in the first few days that there's fisticuffs that take place. But in saying that, we don't know the circumstances to this. This doesn't appear to have been a work-related matter. This is a non-employee that has come on to the employer's site.

The second important point for me is that this has taken place on the employer's site, so it's the employer and the company's issue now that it has taken place during company time and on their site itself. So it would seem to me that an investigation does need to take place. I think that there is certainly some cognizance needs to take place in the fact that there's police involvement in it. That should alert the company that this is a serious issue, and also the question here is asking what implications does that have upon the company.

My view would be that the police investigation is one matter and the company's investigation is a second matter altogether. It would be my view that there shouldn't be any delay in investigating this matter, that it needs to take place. Just because you're investigating doesn't necessarily mean that it's going to automatically go to a disciplinary or the disciplinary action is going to be warranted. But certainly, where this incident has happened on company time and on the company site, it should be investigated.

I think that it's unlikely that the police investigation really should have any impact upon the employer's investigation. The employer is not tasked in the same way that the police is tasked in terms of . . . I mean the police are coming at it from a criminal level. They are looking at it from an investigatory process whereby they have particular powers and they have to give warnings in terms of criminal sanctions and everything else that can happen in terms of that.

Scott: And they need proof beyond reasonable doubt in order to process the case.

Seamus: Absolutely.

Scott: So if they don't think they can do that, that might be dropped.

Seamus: Yes.

Scott; That doesn't mean to say there wasn't an altercation. That doesn't mean to say that, rightly or wrongly, this new employee punched somebody. So taking that line, if it's a new employee, you'd probably say just sack them, following as much an investigation as you possibly can.

Seamus: Yes. I mean I think that it would be the safest to do the investigation, first of all, if it's a new employee. I think the standard position for most employers would be 'just dismiss'. My advice always is, whenever any dismissal has taken place, even if the employee is just within the couple of days, is to adopt the statutory procedure.

Probably my advice on this one would be if the investigation has proven that there has been an assault by the employee, and whether that's because he threw the punch or whatever it is, you can adopt the modified disciplinary procedure, where such a sanction of summary dismissal is evident from the investigation there, you can do that and put it in writing and offer their pay subsequent to that. That's one way of keeping yourself right but maybe also dealing with the issue at the same time.

It's not something that you would recommend on every single potential summary dismissal case, but in circumstances where they're just in the door, because ultimately, if you got to a tribunal, you would be saying it's the employee's own fault here. They entirely contributed to their own dismissal.

Scott: So assuming that the person had longer service, of over a year's service or they've got some kind of good employment history behind them, it becomes a lot more dangerous to dismiss. So let's move this along. You know something has happened. You have to investigate. The police are involved, to some extent. How that might impact on it is that the employee might say, "I'm saying nothing because I might get sent down for whatever reason."

Q: What if our investigation notes are subpoenaed? Do we have to release them if asked for by the police?

It's very difficult to investigate and gather all that information. But one of the follow-up questions here is: Should we give consideration to the fact that our investigation notes could be subpoenaed, and do we have to release them if asked for by the police? Well, you have to, if there's a subpoena, but not if they're just asking.

Seamus: Certainly, I've had lots of cases where the police have approached employers and said, "Can we have your notes, please?" And the employer for maybe one or another reason might not be comfortable with that. Certainly in other cases that I've dealt with, my advice has been no. If the police wish to get these notes, they'll need to go to court and they'll need to get an order from the judge in order to do so and to keep yourself entirely safe and protect yourself from any breaches of data protection or any claims under GDPR for fines and things like that. You might be saying to the police, "It's not that I'm unwilling to provide them to you, but I will need a court order in order to do so."

My view would be that I don't think that if you're investigating the matter, that it really should be. If you're investigating it fairly and you're doing your best in respect of the investigation, you shouldn't really have any concerns about whether the notes are going to be subpoenaed or not or whether that's going to have an impact upon the criminal case.

I'll also just point out there's not an expectation that the employer will act in an investigation the same way that the police will do. It's not a no stone unturned type of investigation. It does need to be a reasonable investigation. If we go back to the LRA Code of Practice, it will give us the guidance in terms of saying what is a reasonable investigation, but it's not a matter where the manager is going to have to interview 12 people, whether they came across the incident or didn't. It just has to be a reasonable investigation and within the realms of that. It's not a police investigation. I'd let the police do their job in terms of that.

As an employer aspect, complete the investigation in a fair manner, give the employee the opportunity during the investigation to tell you what has happened from their point of view. If you decide that disciplinary action is warranted after that, then it may be that you're taking a decision at that point as to whether or not you're going to proceed with your disciplinary action, or you're maybe going to wait until the outcome of the police investigation and maybe a court hearing. But that could be 18 months down the line.

Q: Must we pay an employee whilst they are in custody pending trial or should we suspend them?

Scott: That reaches the final question really that was raised by this person here. We have mixed reports on the company's obligation to someone who's been arrested. "Can we have clarity on whether we must pay an employee whilst they are either in custody pending a trial or even if we suspend them?" So, presumably, if there's an investigation and they're suspended, that would be on full pay . . .

Seamus: Yes.

Scott: . . . because it's not a disciplinary sanction. But if this goes on for 18 months, whether they're in jail or they're not in jail and you're awaiting the criminal trial because you don't want to prejudice it or whatever, you're stuck with paying this employee, aren't you?

Seamus: Well, that's it. I mean, I think that you would have to take a . . .

Scott: Not if they're in jail. They're not available for work.

Seamus: Well, if they're not available for work because they're in jail, then you don't have to pay them, and I think that you could possibly look at various ways of terminating the employment fairly if the employee is incarcerated and unable to attend work because there could be frustration of the contract in relation to that aspect of it.

But just going back to the prior issue there, in respect of where you suspend an employee, I've advised on this before. If you suspend, you have to suspend on full pay. You would need to have a clear reason for bringing about the suspension. I don't think it would be fair enough just to say, "There was an incident that happened. We're going to suspend you now because there's a criminal aspect to it, and we don't want that around our place of work." To me, that's not satisfactory. That's not enough.

You would also be giving the advice to the employer to say the likelihood is that the person might be, it could be 6 months, it could be 12 months, it could be longer. Are you really going to pay them their full pay for that length of time? I would have thought that the smarter thing . . . we talked about this previously in terms of what a tribunal's view might be. There would be nothing if the person was available to go ahead and proceed with your disciplinary process, whether or not the court case has come to hearing.

Now, the game has two different thresholds, two different levels of how it's dealt with. If you ultimately dismissed and the case went to court and the person was found to be not guilty of the crime, that doesn't necessarily mean that the dismissal has been unfair. Again, it's two different processes. It's looking at how fairly you applied the disciplinary process and how your sanction, whether or not that's proportionate or not to the outcome, but the interesting part of all of that really is that you get to the tribunal.

The tribunal might say, "Well, why didn't you wait? Why didn't you hold off?" And your reason might be because we weren't going to pay them for 18 months. I think that there would be maybe a bit of understanding from the tribunal's point on that. I think it's fair enough in the business world to think that way. But there might be a bit of legal unfairness in terms of looking at it.

Scott: I suppose it just depends on which chair you have or which judge to some extent.

Seamus: Yes.

Scott: The bottom line is that criminal law trumps civil law.

Seamus: It does.

Scott: If somebody's got this terrible thing hanging over them, then they may not be as open with you as an employer, and that would be understandable. There may be some also . . . there are some contracts, I think the PSNI contracts include that you have to be paid, but there may be something in the contract that says that during a criminal investigation, you have to be paid or you cannot take action until it's finished. Remember you have to look at the specific contracts.

Seamus: I'm aware of certain contracts as well that will say, for instance, in teaching contracts, often it will say that there shouldn't be any delay, but if there's a safeguarding issue and the police have been involved, that you should delay it and it may be that the employee may be out for 18 months, perhaps longer in terms of getting an outcome to the process before you move forward with it, and actually it's just about being just and fair to the employee.

Grievances

Q: Do I have a duty to address a conversation that took place at a colleague's leaving do under company policies or can it be kept private?

Scott: Moving to the other side of the equation, we're going to look at grievances now. If you want to follow up on any of the things that we've been chatting about today, Seamus and myself, we will stream it within an hour or so on the Legal-Island website and we'll have a transcript online within a week or two, once we've had a chance to check it.

What we usually do is try and put in some of the references as well. The case law that we've been chatting about today, we'll slot those into the transcript as well, and we break them up so that if there are specific questions you want to hunt out and there are several hundred now that we've dealt with over the months, you can check those out on the website as well. Just go to the Resources section and you will find it on the Legal-Island.com website.

Now, grievances and duty to disclose and such. "I am an HR manager in a small organisation and have attended a colleague's leaving do one evening. During the course of the evening, another employee became particularly upset and disclosed information to me about her personal life and a grievance which she had a formerly raised. Do I have a duty to address this conversation under company policies, or can it be kept private?"

Seamus: So there's two aspects here. There is the information disclosed about her personal life and, second of all, this grievance which she had formerly raised. We're not sure whether or not the grievance was completed or if there was an outcome in respect of the grievance or what the situation is, but it's clearly still an issue that is annoying the employee.

My view on this would be say that this happened on a Friday night, there may have been a few drinks taken, and maybe it's opened the person up more than what they would normally do. But I think your best practice in this scenario would be where there's concerning issues that an employee has and as an HR manager you're aware of those, my feeling would be that there should be some follow-up with the employee about that.

Now, the level of follow-up, I think that you have to take a sensible view, and I think that you have to take a careful view. And maybe if there are personal issues that the employee has raised, they may be very embarrassed and don't want to discuss that with you. So the approach could be something along the lines of, "We were talking on Friday evening. You made some comments. If there's anything further that you want to talk to me or if you want a friendly ear, don't hesitate to do that. If you don't want to talk to me about it, that's completely fine. But I'm just opening the door for you there if there is anything."

In terms of the grievance, I think that's a slightly different matter. It's a work-related matter. Again, it may be that a formal approach is made to the employee to ask the background to the grievance. Was it dealt with? Was there an outcome? Was there an appeal in respect to the grievance? Is it still something that's vexing the employee? Is it still something that's going on? Is there new evidence? those sorts of issues. Again, the employee may back off and say, "I shouldn't have raised that. It's a closed matter, but it does still annoy me, but I don't feel that I'm prepared to take anything or to do anything further about it."

Scott: The HR manager can't unlearn it.

Seamus: No. They know about it.

Scott: So you still have to make a value judgement about whether you go along with the employee's wishes and do nothing, or whether you say like what you said is if it were a criminal activity or something, you would be pretty much duty-bound to go through that. If it's a safeguarding thing, you were in education, you would be duty-bound to do that. So coaches have certain rules and such like, but they still have a duty to report things that are breaches.

So assuming this is a personal thing, assuming that the person doesn't want to go ahead with it, would you advise that the HR person says to them, "Look, if you really don't want me to deal with it, that's fine, but I want you to put something in writing," or even just record it somewhere in their diary and say, "I spoke to X and they insisted I do nothing about this."

Seamus: I think just in order to keep the HR manager right, that's the appropriate thing to do. It may be that the employee just will want to bury their head in the sand and not have any conversation or not get involved in it further at all. In that sense, then I think it's important that a written note is made by putting on the personnel file or, as you say, kept in the HR diary, just to record that the issue was raised but the employee doesn't want to do anything further.

Q: An employee has raised a complaint on their last day. Is this a grievance and how do we handle it?

Scott: Okay. We've got a couple of questions that have come in on the chat desk or chat box, whatever you want to call it. "Can you advise on an employee who has left employment raising a complaint on their last day of employment?" Does that count as a grievance and how should we handle this?

Seamus: Well, it may well as a grievance. It may not be something that's related at all to their personal working issues. It may be that they have a grievance just about the company's policy and procedure on the matter. So those should be viewed carefully. It used to be in the old statutory grievance procedure that you had the modified grievance procedure, which was specifically set up for someone that had left and was raised in the agreement and was raised in the grievance post-termination.

It may be that there's a grievance or a concern that you ask them and you have a discussion with them about, "How would you like this dealt with?" It may be that they'll say, "Well, I don't care. I'm just bringing it to your attention. I'm leaving." It may have wider implications for the company and a proper investigation follows. Or it may be that they're unhappy and they are getting it in the exit interview dealt with.

Certainly, one way of dealing with it would be to possibly look at adopting that kind of modified procedure and maybe giving a written response back to their grievance that they've put in and offer them a right of appeal if that's the way to deal with it and to proceed with it. But it's unlikely in most circumstances that the employee is going to want to do anything further if they're leaving.

I think that you do need to be careful that if it's an aggrieved employee and they're leaving and there's a chance or a likelihood they're going to bring a claim for constructive dismissal or breach of contract, that you do deal with it in a formal capacity, and it may be that you're writing to the employee and inviting them into a meeting or else giving them the option to say, "If you don't want to come in and meet with us because you've left, we're happy to investigate and provide you with our response in that respect."

Q: An employee goes off sick with stress on initiation of disciplinary proceedings. Can we proceed anyway?

Scott: Another question as well, "If we suspend someone pending a disciplinary or if they go home at the start of an investigation and claim the whole business has stressed them and they obtain a medical certificate for work-related stress, how long before we can force the issue and proceed anyway?" That's typical. Somebody does a runner at the start. What would you recommend there, Seamus?

Seamus: Usually, the concern for employers will always be that the employee goes out on sick and you have lost control of how to deal with the matter. The best way is contact the employee, and you can say to them, "I appreciate that you're sick, but can you confirm if you're able to attend meetings to discuss this?" They may say, "No, I'm not because the whole thing stresses me out, and I don't want to do that."

The next protocol really for me is that you would send them to occupational health, and specifically within your request to occupational health, you would ask the occupational health to give an opinion as to whether the person is fit or not to attend investigatory or disciplinary meetings.

Scott: Yeah. It's fit to attend. It's not fit to do the job. It's fit to attend those particular meetings. That's different from whatever job they're doing.

Seamus: Exactly. In my experiences, I wouldn't say the majority of times, but certainly there's a good record of the occupational health doctors saying they're unfit for work, but they are fit to attend meetings. You often see it's recorded in the reports to say that the work issue is causing the stress, and the stress won't be relieved or worked through until the employment issue is resolved. The only way to resolve that . . .

Scott: Is by having the investigation and the disciplinaries or whatever it happens to be, a grievance in this case.

Seamus: Exactly. So you want to avoid that going around in circles. And certainly where the occupational health comes back and says they're not fit to attend meetings, then I think you want a time frame of when they're going to be able to attend meetings.

Scott: It could turn into how long is a piece of string?

Seamus: Absolutely.

Scott: But the bottom line is that if you've been doing any kind of return to work-type interviews, so there's no record on the personnel file that the person has been stressed, then it's quite valid to point out you aren't stressed or there is no evidence you were stressed until this issue came up. Now, it will be stressful. Most of us have never been disciplined at work. So, if anything like that happens, it will be incredibly stressful. But I think you do have to point out to the individual, look, if you want it resolved, you have to come in at some stage.

Seamus: Exactly.

Scott: But I don't know that we can get answers about how long that is going to be. It will depend on the circumstances of the case. If you push it too quickly and if it's seen to be management bullying, then you're not going to come off well in a tribunal if you go ahead and dismiss anyway.

Seamus: No. Just from my own experience, I had a case a number of years ago where the occupational health doctor . . . My client was the claimant in the case. The occupational said that the employee wasn't fit to attend the meetings and had given a time frame of when there was to be a period of review and expected that at the period of review that he might have improved sufficiently in order to attend meetings, but still wasn't fit to return back to work. And the employee proceeded on with the meetings in his absence.

They did give alternatives. They did suggest that the trade union rep attend or that he could put in written representations to the meetings, but the client just wasn't fit enough to do written representations. The tribunal did take a dim view of it and it's in the judgement.

Compromise Agreements and Non-ET1

Q: What is a compromise agreement and what are the benefits?

Scott: Moving on to other issues I suppose about termination and such, there's a couple of things. We'll run them together. "What requirements must be adhered to for a compromise agreement to be viewed as a legally binding document, and what are the advantages of such agreements?" The second question, which is related, is, "Can you explain non-ET1 agreements and what are the main features or benefits of conciliation?" So that's two sides to the termination coin, if you like. The first one is when it's done privately between the parties. That's a compromise agreement. So explain that one.

Seamus: So compromise agreements are essentially an agreement between the employer and the employee. The compromise agreement will generally provide for the termination of the employee's employment. The basis of the compromise agreement is that the employee would be signing a legally binding agreement confirming that the employee won't bring any claims in respect of their employment against the employer.

So, if you look at it on a two-handed basis, the employer is normally paying some sort of compensation to the employee under the compromise agreement. Some sort of consideration doesn't necessarily always mean monetary, but what the employee is getting is a compensation payment usually, and what the employer is getting is an agreement to say that that's the end of the matter and the employee won't be bringing any claims in the Industrial Tribunal or in the courts against the employer. What it does, it provides for a clean and clear exit for both parties.

Scott: In a compromise agreement, the employee has to be legally represented or they have to have some kind of representation …

Seamus: There has to be some form of incentive within the agreement for the employee to sign. So usually you will see the ex-gratia payments be made sometimes. Payment in lieu of notice is paid as well. There's various tax implications that specific advice should be obtained on.

The compromise agreement is only legally binding when the employee has obtained independent legal advice in relation to the terms and conditions of the agreement and that the independent legal advisor has provided a schedule or a document to confirm that they've provided the independent legal advice.

So, in general, Article 245 of the Employment Northern Ireland Order 1996 provides they are something that is legally binding. They're committed to do it. If you give that employee a compromise agreement, or, in some circumstances, sometimes employers will get the employee to write down and sign a piece of paper saying, "I won't bring any claims against the employer. I'm resigning of my own free will."

Even if they get a compromise agreement and they sign it and they bring it back to you, it's absolutely worthless unless it comes with the schedule signed by the independent advisor to say that they've given the independent advice and that the employee has signed the agreement on foot of that.

Scott: A compromise agreement, I think it's still the case, you've got to list all of the things that you’re compromising.

Seamus: Yes. The claims themselves that you're compromising the employee out of must be contained within the agreement.

Q: Can you explain non-ET1 agreements and what are the main features of conciliation?

The usual process is that you would contact the Labour Relations Agency, and you would advise them that you're at the stage where you're wanting to enter into a non-ET1 agreement. The Labour Relations Agency will, in general, take some details down.

They will make sure that there is some form of consideration passing between the parties. They will facilitate a meeting normally where both parties attend with the Labour Relations Agency. There will be a document produced, which is very similar to the conciliated agreement. But instead, it's called a non-ET1 because it's in advance of any proceedings being issued.

Scott: And the ET1 is the claim form that you use in a tribunal hearing.

Seamus: Yes. That kicks the proceedings off. The Labour Relations Agency will assist, but don't expect them to turn something around for you within 24 or 48 hours. You do need to give them notice. You need to be fair to them. They have a lot on. Usually within a week, 7 to 10 days, they'll have you down. They will provide advice. So they act as the advisor almost. They do provide advice to the employee. If the employee is happy to sign the agreement after that, then both parties sign the agreement, and it's legally binding as well.

Scott: And the employee loses all their rights to continue with their claim in return for whatever they've agreed to...

Seamus: Whatever the consideration is, yes.

Scott: I believe there's been some problems with the sound here. So we'll listen back to the recording and find out what we can do. We may have to do something extra for those listeners who have lost a bit of the sound there. I think it's to do with the Wi-Fi connection, but we'll see what we can do.

Whistleblowing

Q: Does a whistleblowing complaint need to be in writing?

Our final question, I think, anyway, is about whistleblowing. So we'll take those for Seamus as well. We're going to just a few minutes longer, given that I think we've lost three or four minutes' worth of sound. "Is there anything in law that a whistleblowing complaint must be in writing or that an employer need not investigate a complaint unless it's in writing. Secondly, I know that whistleblowing should not be the method of reporting a personal complaint of harassment, but what are your thoughts on ethics online reporting system, whereby employees can report, for example, harassment anonymously?"

So if we take that first one there, whistleblowing doesn't have to be or does it have to be in writing. That person who left on the last day and threw in a complaint, that could be well be a whistleblowing complaint, or somebody puts in a sick claim, that could be a whistleblowing complaint. But there's nothing in law that says that it has to specifically be in writing. It has to be about some kind of breach of law.

Seamus: Yes, that's it. I think my position would be that if anyone puts a call through to me and says, "I've got wind of this, or I've been made aware of it, or an employee has approached me and told me this, what am I do to do about it?" my advice is always, well, when you know about it, you know about it. You should investigate it. You can't, as you said earlier on, un-know about it now that you do. It's very difficult whenever whistleblowing complaints or notice is given of them anonymously, because you have no one to revert back to. You have no way of confirming what it is that they're saying. But just because that's the position, it doesn't mean that you shouldn't investigate it. Similarly, just because it's not in writing doesn't mean that you can ignore it.

There is a mechanism within the tribunal process that you can bring a claim because you've raised a whistleblowing, you've blown the whistle and maybe that there's been a detriment that has happened after that. From my knowledge, you don't necessarily have to prove that you put that in writing to anyone. Yes, it will help your case. But if you have evidence that you did tell someone, maybe a manager or what is up the line, and, as you know, there's no formal requirement for a year's service to bring a claim for detriment under whistleblowing. So it is something that employers should take seriously.

Scott: There's no service requirement as there would be for unfair dismissal and there's no limit to the award the person can get either.

Seamus: That's the very important point. Also, what they may bringing to you is information that is of a criminal nature. You may be duty bound within your own policies and procedures, within your organisation to investigate and/or report those matters that have come to your attention. So I don't think that it's acceptable just because it isn't in writing that you don't do anything about it. I think where it's brought to your attention, you should be taking steps.

You can look at those other things in terms of is the employee that's reported this, maybe they're leaving, they're walking out the door. Are they being vexatious? Is there a genuine belief in terms of what has happened? Is there a legitimate interest? All those sorts of things, the nitty-gritty you can get into it. But on first blush, where there's a whistleblowing issue that that has arisen and if it's not writing, I would proceed.

Scott: It's in your interest to find out about it and nip it in the bud. There are a number of things that would happen if it gets out into the public arena alone, never mind the fact that you're losing money potentially. You don’t want to risk it.

Seamus: Someone could take to social media, to Twitter, and they could sully the reputation of the organisation, where you've been given information and you ignore it, there's no real shoulder to cry on there in terms of what you do about it if it does go into the public domain afterward.

Scott: Okay. There's another couple of questions that have come in, specifically there's one there I see about between a grievance and a protected disclosure. We're maybe going to have to hold it there. If you want — I can see it in front of me — if you want to drop Seamus a line or Hannah a line or even me a line after this, we'll endeavour to get back to you individually if you do that.

I will assume, Seamus, that you're not going to chat about ethics online reporting and anonymous harassment-type things. These are things that you do not look on favourably. So we'll look at that. There's been a number of teachers, I think, that have been the victims of RateMyTeacher and things like that.

Seamus: Yes. Absolutely.

Scott: You don't want to go down that road. I don't think it's very good for employment relations.

Apologies, folks, for the break in sound. I'm not quite sure what's happened. We'll listen back to the broadcast. We'll see if we can get it streamed properly. It may well have recorded properly here if it didn't broadcast correctly, so we'll see about that, and hopefully, we won't have any issues the next time.

Our next webinar will be on the 7th of September. If you have any other questions, send them into me, scott@legal-island.com, or use the little survey afterwards there on the chat box and we will try and deal with them next time. If we don't see you next time, hopefully we'll also hear from the Annual Review of Employment Law conferences, which are up in November. I believe the early bird discount is about to end so you might want to do that, just finish on a little ad.

Thank you, Seamus, very much.

Seamus: Thank you.

Scott: Thank you to O'Reilly Stewart. We'll see you next time. Thanks everyone. Bye-bye.

 

This article is correct at 03/08/2018
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

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