Employment Law at 11 - January 2022

Posted in : 'Any Questions' Webinar Recordings on 7 January 2022
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Statutory Sick Pay, Covid-19, Contacts of Employment

In the first Employment Law at 11 webinar of 2022, Seamus McGranaghan of O’Reilly Stewart Solicitors will join Christine Quinn of Legal Island to discuss:

  • The new statutory sick pay rules – did skiving just get harder to police?
  • Covid rules and abuse of staff – how to ensure a safe working environment while still complying with the ever-changing rules.
  • What standards of behaviour can be inferred into a contract of employment? Did you see the story about the postman in Scotland who was dismissed because he didn’t help a householder who had fallen in the snow and needed help? He argued he was too tired and parted with his employer some months later. Where is line between being altruistic/decent and being required to help others or it becomes a disciplinary issue?

The Recording


Christine: Good morning, everyone, and welcome to our first Employment Law at 11 of 2022. You're very welcome on this very cold Friday morning. I'm sure everyone's got their hot water bottle stashed and their multiple layers on because I certainly do. So, yes, welcome and let may do some introductions. First of all, as you know, I'm Christine Quinn. I work here at Legal Island. I'm one of the learning and development officers here. I'm legally qualified in employment law over in England and Wales. I'm also here in Northern Ireland. And we've got our regular contributor, Seamus McGranaghan of O'Reilly Stewart Solicitors, employment law specialist. 

So before we get into, I just got a little bit to tell you about a new eLearning course that Legal Island has. So we've created an HR toolkit that aims to provide comprehensive training to assist HR professionals in Northern Ireland and supporting line managers and employees throughout the employee journey. This suite of courses will offer practical advice to assist you in updating your processes and procedures and help you understand your legal obligations. So topics covered within this toolkit are "Recruitment in the Modern Workplace," "Managing Performance," "Tackling Sensitive Workplace Conversations," and "Dealing with Difficult People." So we're delighted to announce the toolkit is to launch next week, Thursday the 13th of January. And we'd like to invite you guys to register your interest now to receive priority access to purchase this course in advance of the official launch. So look out for the email that follows this webinar. All the details are in there and you'll be able to register your interest there. 

So let me get you guys to do a little bit of work. First of all, we've got some polls to take you through on our topics today. So, Katie, if you could bring up the first poll for me, we'll get to see what the audience thinks. 


Poll Results  

So really just for a bit of interest, do you have an enhanced sick pay scheme in your organisation? If you could click yes or no there. We'll see what y'all think. 

Okay, looks like the majority of you have voted and if we take a quick look at the results there. There we are. So 69% said yes. So I think I'm fairly surprised by that, Seamus. I didn't think it would be quite so high. What is your take on that? 

Seamus: Yeah, I agree. I wasn't expecting it to be almost at 70%. That's almost right up near the top end. And be interesting to see, I mean, obviously there's various different types of enhanced sick pay schemes that you can have. There might be some that are we're just giving a few extra days per year. There may be right up to maybe giving six months for the pay and six months half pay. But that's interesting. I wonder just is that a reflection of the circumstances that we are in with problems across the board everybody seems to have in relation to recruitment. And I just wonder is this a bit of a run on one from employers trying to enhance the terms and conditions in order to either entice staff or to encourage them to stay within the organisation. And so be interesting to know actually if this is a recent step that employers have taken to enhance their sick pay scheme or if this is something that has always been there. 

Christine: Yeah, next poll question we're just going to dig a wee bit into just to see how generous these sick pay schemes are. So if we can have a look at that one, Katie, and we'll see what everyone thinks. So if you said yes, if you could select, we pay up to five days a year, 10 days a year, 20 days a year, or more than 20 days a year. And we'll see. We'll see how generous or otherwise the schemes are. 

Wow, okay. Everybody looks like they voted. Let's bring up the results because I find these really surprising indeed. Everybody on the webinar today has extremely generous sick pay schemes. Were you expecting that, Seamus? 

Seamus: Yeah, I can see there, what, so it's 78% pay more than 20 days per year in enhanced sick pay. So yeah, I mean, I think it is a sort of general direction the things are traveling in at presence. Again, I sort of think it does come down to employers' responsibility and certainly through this whole pandemic and issues arising with COVID, I think employers have had to look out and revise even if it's just on a temporary basis their sick pay schemes that they have. But I mean, that is very encouraging. I think absolutely 78% of more than 20 days is not what I was expecting to see, but am pleased to see it. 

Christine: Yeah. That's great. Okay, let's have a wee look at the next question then. Just on one of our other topics, have you noticed an increase in abusive behaviour towards your staff since the beginning of COVID-19? I'd say this is going to be very much dependent on the demographic of the audience today. If we've got a lot of customer facing roles, maybe hospitality, medical type roles and today we're going to see that skew the figures, I would say. 

Okay, looks like everyone's voted there. Let's have a look at the results. So there we go. We've got . . . it's good to hear that 74% are saying no. Maybe that is reflective of the audience we have today. What's your take, Seamus? 

Seamus: Yeah. I think that's probably right in the sense that it depends on your business. And if you are a forward-facing business dealing with the public, if you're in hospitality, retail, medical settings, certainly it does seem to be that there has been a significant issue arising in and around how staff are feeling abused. And when I say staff, the other thing occurs to me as well, Christine, is that HR managers are taking a battering as well through this whole process because they're the ones that are having to challenge their own stuff also about adhering to the various pieces of guidance that we have and mask wearing and things like that as well. It is creating a lot of issues internally for businesses. And certainly, what I read is that there is issues here in Northern Ireland since the introduction of the COVID passports in terms of accessing restaurants and bars and other hospitality places, and that that has created an issue for staff and certainly that sort of abusive factor coming from sort of aggravated members of the public. 

Christine: Yeah. Great. Thanks for that, Seamus. So final question for you guys today relating to our final topic that we'll talk about later, have you disciplined someone for not being an inverted commas "kind"? So this really goes down to something that you can really cater for in a contract of employment, but it's very important in a workplace setting. So let's see what the votes are for this. Looks like everyone has voted. So let's have a look. Massive no. So I know we've got lots of people with extremely kind staff or it's just not something that's on the radar and maybe when we talked it through today, it might come more onto the radar. Seamus, are you surprised by that result? 

Seamus: Yeah, I mean, I think, the issue of being kind in the workplace, those issues will probably come in and around types of the bullying and harassment that we regularly see arising. Maybe just when we get into discussing the specific aspect in the case that we're going to talk about, and maybe bring a different light to it. But in general, good to see that that there aren't those sorts of issues around. And it'd be interesting to know just what the position would be for organisations and if a standards policy, how they communicate and make known to their employees what standards they are expected, what the expectations are and how they are expecting their staff to behave not just internally within the workplace, but externally, and specifically if their employees have a public role or involved in public and of those space and things like that. 

Christine: Brilliant. Thanks very much for that, Seamus. So let's get into the webinar proper now. Let's have a quick look at our first question.  


Changes to Statutory Sick Pay   

So we've got the new statutory sick pay rules. And our question is, did skiving just get harder to police? We were being very cynical this morning. And so, Seamus, what are these new rules? It seems to be there's a new rule every other week, but what are they at present, the sick pay rules? What can we expect? 

Seamus: Well, certainly I was interested whenever I noticed the word skiving in relation to when it was getting easier or harder to police and I think that that probably is a fair enough comment when it comes to certain individuals within any organisation. But as you know at the minute that the current circumstances have changed, but if we just maybe recap in relation to what the general position is around statutory sick pay. So in general, employees who are unable to work because they're ill and they may be able to get statutory sick pay. Now, there are certain conditions in relation to the employee's ability to obtain statutory sick pay, but in general, that keeps it on the basis of they may be able to obtain statutory sick pay. 

And we talked about in the poll there, employers may have an enhanced statutory sick pay scheme, the basis of enhanced sick pay scheme means that it has to be better than what the statutory scheme is. Really important point when it comes to sick pay schemes is that you need to be clear in your contract of employment exactly what the sick pay scheme is. If there isn't a company statutory sick pay scheme, you need to say that in the contract. Employees do need to be clear within the contract, what exactly their entitlement is if they're unable to attend work through illness. So you should be detailing out in the contract whether it's just statutory sick pay or whether and what the rules are in and around the enhanced statutory sick pay. And often, we'll see the absence policy and procedure will detail out how the employee should notify the employer of a period of absence and what the company policy is, or the organisation's policy is on when they have to report when they need to get fit notes, things like that. 

So statutory sick pay is pay by the employer. It can be paid up to a maximum of 28 weeks, and it pays the employees for the days that they would normally work and the current amount is £96.35 a week. But if you go on to NI Direct, it will detail out there how that go down into a daily rate also. 

The rule had been that statutory sick pay wasn't paid for the first three days of absence. And that's unless the employee had already been paid statutory sick pay within the previous eight-week period, and that they then become eligible again for statutory sick pay. So generally, day four you become eligible for the payment. And but recently because as a result of the pandemic there have been amendments made to the statutory sick pay scheme. This was done in England initially, and then it was followed up in Northern Ireland. So the regulations that we're talking about are the statutory sick pay, medical evidence modification regulations, Northern Ireland 2021. A bit of a mouthful. They're very short and sweet, I have to say. You can look at them, and they meet the position very clear. 

The reason for that for the change in the regulations has been because the government have made clear that the GPs need to spend the next period of time working through the booster program, so they're trying to alleviate the pressure off the GPs in terms of providing fit notes because the current position is that you can self-certify for a period of seven days. That was the position. And under the amended regulations we have a situation now where you can essentially self-certify to a maximum of 28 days. So basically what that means, Christine, is that as it stands at the minute, and if you look at NI Direct website, what they're saying is that from the 10th of December, an employee will not be required to provide medical information in respect of the first 28 days of any spell of incapacity for work, so we've got a period from the 10th of December running to the 26th of January. That's a period of time that the modification applies for. 

I will point out that it does provide within the regulations that there can be an extension of that period. And I would assume that what we'll need to see is how well the booster program is going. And then potentially this aspect of if there is a lot of backlog happening because there is a situation where the numbers are so high at the minute, we're obviously having a spike in relation to the Omicron variant. I think we're sitting at around 7000 cases a day at the minute. I think yesterday they said that was maybe going to peak over the next 7 to 10 days. Going to take lot of people out of the workforce and luckily it seems to be that it is mild. For the majority of people, it's mild anyway. But there's people that will be seeking medical treatment from their GP as well during this period. And if those numbers keep high, there's a possibility that it might extend this beyond the 26th of January, but the current position is from the 10th of December, anybody that has been sick from the 10th of December, they can self-certify now for that longer period, that 28 days where they don't need to get a doctor's line after what would have been the seven days. Previously, you could self-cert for the seven days. 

And it's back to your question. Does it make it easier to skive? I think that the reality is . . . 

Christine: Yes, it does. 

Seamus: . . . it probably does, but there's ways and means to try and deal with that. But just to mention, I think it's an important point to mention that this extension of the self-certification period doesn't just apply for circumstances that relate to COVID. It's for all work options, okay? Because that seems to be some confusion there that it has to relate the COVID. It doesn't. It's a general clearance of that period from the seven days out to the 28 days. And during that period, you cannot ask your employee to provide a fit note and the only way that you could do that is if you have really serious concerns with the employee, the employee is not genuine and there's some sort of justification writing it. I think the reality is that we have to accept that it's going to be very difficult for an employee to obtain a fit note, whilst our GPs are tied up working through this booster program. 

Christine: So that's an interesting point, Seamus, because I had thought it had to relate to COVID. And I was like, well, how on earth do you work that out? So if I sprained my wrist and can't come into work next week, that it would apply to me? Is that right? 

Seamus: Yes, absolutely. 

Christine: So it doesn't have to be COVID related. And then, we've got the majority of our audience here have enhanced sick pay schemes, which you're going to have in the contract certain conditions tied to it. Normally, that would include a fit note. Can they ask for a fit note at this time, or is it just an absolute no-no? 

Seamus: Essentially, because the regulations are very clear about it, even if you have an enhanced statutory sick pay scheme, and under which you wouldn't . . . you might possibly have in the contract it says in order to get the enhancement, you have to provide a fit note. But that has been that has been temporarily stopped and as it stands at the minute, if the employee is unable to attend for work due to incapacity as a result of illness, they don't have to provide that fit note for 28 days. So even if there's an enhanced sick pay scheme, and even if your contract says you have to provide it after seven days, that should be parked. 

Now, one of the issues is that probably the straightforward aspect to do is to issue some form of memorandum to staff to notify them of the update and conscious of the fact that on the other side of that, that you might say, we don't want to alert the staff they can do this because they'll all do it. 

I think it's a balance to take and again, it'll depend on the different type of organisations in the business that you have also. I suspect, routinely as well, that we'll see it'll be sort of typical new employees that the employers want to watch out for that could take advantage of the situation. But it does make things difficult for the employer specifically at a time whenever you may have a depletion in your staff because of the high number of COVID cases and also the requirements in and around having to self-isolate, and all those other things as well. So it definitely will be a struggle. I suppose that the upside of it is that it is for a temporary limited period only at this stage. We'll have to see what develops.

Christine: Yeah. And you had mentioned parking your requirement for a fit note if you've got that enhanced sick pay scheme, but presumably that doesn't include parking the payment itself. You should still be paying the enhanced amount, or could you get away with just paying statutory? 

Seamus: No, I mean, the position would be that if there's a contractual entitlement to enhanced sick pay, then it should be paid as per the terms of the contract. I don't think that it would be reasonable to say, well, you haven't been able to provide me with a fit note specifically when the government have implemented these regulations. I don't see that as an order. 

But the other point I suppose is not just when you mentioned there the employer should still follow through on all of their other policies and procedures as they would normally do for a period of absence. And if this is for a maximum of 28 days, so it's potentially, you know, five working . . . well, up to just over four working weeks of somebody being absent and my view would be that you follow your normal policy and procedure in relation to that so that may be the aspect of telling the employee that they need to keep in regular contact with you. There is going to be additional work and pressure put on the likes of the HR managers or the line managers at this point in terms of managing the absence because all of the standard matters will apply whereby the employer needs to know when is the person likely to return to work? How many days do we need to have maybe an alternative member of staff covering the work or covering the shifts, and you can't have a situation where the employee just randomly turns back up again.

You need notice in relation to that. So the communication should be still very clear and good between the employee and the employer and again, hopefully that's set out within your absence policy and procedure and the employee should be reminded that even though they're not providing a fit note after the seven day absence that they still need to adhere to the various policies and procedures that apply to the absence. 

A couple of other thoughts that I had in and around that was the employer is always trying to take steps to assist the employee to return to work. We are thinking about our discrimination legislation in and around this and keeping that onus of the contact and what the employer can do to assist. Often the employer will look at a fit note to see what it says about the absence and that will help inform the view of how long the employee is going to be off, what alternative steps can we take, and even from the point of view of having discussions with an employee about a return to work. And I appreciate that this is only for a short period of time, but it may be that the employee says, well, I can come back to work but I need a phased return. And normally we would look at the look at the fit note to see what the doctor's recommendations are and if we don't have that now again, I know it's only for a short period of four weeks, and it's not going to be too disastrous, but it's just not having not available information also maybe from the fit note that we would normally have. 

And so I think employers do need to be careful at this moment that they're not taking any draconian steps or any not mad, unreasonable steps when it comes to dealing with the absence. I think the parties need to be sensible, but that applies on both sides of it. So I think you could still look at things like phased returns, alternative duties, and if somebody does a job or they need to move around a lot, you can maybe get them back in after the seven days. You can give them a desk job for the remaining couple of weeks until they're fit again. You know, those sorts of standard sensible things should still take place or the employer should be still adhering and following their policy and procedure even though they don't have a fit note from the GP. 

And the last thing that was on my mind about it as well was just the pressure that will come under employers at this time as well. I don't think and this has been raised with me this week, just this change now also that we have from we don't have a necessity to get a PCR test. If the employee has symptoms and tests positive on a lateral flow, and they should then self-isolate. And I know that a lot of employers and we've got used to this as well over the past year and a half really whenever we've had the system up and running of evidence in the positive test through the text message or through the email that the employee gets confirmed that they've tested positive. We're not going to have that by the signs for a lot of cases that are happening because it's just going to be on the basis of the lateral flow. And I know that you certainly been encouraged log your lateral flow. But I think we have to be realistic that a lot of people probably aren't going to take that step in terms of logging their lateral flow. I'm not quite sure, I don't know the system well enough to know if you log your lateral flow, you get an email back to confirm that, that you can show your employer but it's just that evidence, and your actual positive test could be another challenge for employers as well. 

Christine: Yeah, I think it's very tricky times for HR managers and the lateral flow system just isn't as robust. I think you probably will get people that, you know, you had people turning up at pubs carrying the lateral flows to get in for a pint. So you're probably going to get people to kind of send you a screenshots and, you know, photographs of lateral flow, so it does make things incredibly difficult for HR managers. And just to mention to everyone, please do drop in any questions you have. I forgot to mention that at the start. You've got the chat box there, drop them in and I can put them to, Seamus, as and when it's appropriate. 

Just conscious of the time, Seamus, I think one final point I suppose we should make on this is that over the Christmas period, snuck in under the radar there that the chancellor announced that small and medium firms can now claim back up to two weeks SSP for COVID-related absences. So that's just something to be aware of as well. If you are in a business at that size, it's kind of a wee bit of a helping hand there as well. 


Covid Rules and the Abuse of Staff Members  

And let's have a look at our next topic. Now this, Seamus, is something that you flagged as you're getting a lot of queries about so I think it's an interesting one to talk about. So the COVID rules and abuse of staff, how to ensure a safe working environment while still complying with the everchanging rules. So we mentioned it's going to be a lot of hospitality staff, retail staff, and medical staff that are going to be in this boat as well as you said HR managers, so I suppose there's a lot of questions around should these staff be the ones policing those rules? You know, a lot of them are younger people kind of student age working maybe in Tesco or whatever. They're the ones having to say put your mask on to people twice their age. Is it okay to put them in the line of fire like that? What duties do employers have and these circumstances, Seamus? 

Seamus: Yeah, well, I've had from the change of the regulations came in in relation to COVID passports and the government advice relating to the wearing of masks in public spaces and crowded spaces and things like that. I have had an uptick now definitely in employers contacted me for advice where staff have been suffering abuse essentially from members of the public. And I did just when I was doing some Christmas shopping, I went to a cinema to get a voucher. And I forgotten actually that you have to have the COVID pass to go to the cinema. Thankfully, I had it with me. I wasn't the one giving out about it but in the queue in the cinema, and there was a long queue just to get through that part. And it was a young member of staff that was asking for the site of the COVID passport. People seem to be not aware of it or maybe just didn't have anything to show but I witnessed it and a young member of staff couldn't see a manager around, couldn't see a supervisor, couldn't even see another colleague, what I could see was colleagues that were a distance away that were serving at the confectionery counter, and I was standing thinking this person completely exposed and was receiving abuse. It was nothing mad but definitely abusive in terms of what they were getting. I was thinking to myself that there is an obligation here on the employer. The employer does have to provide . . . has an obligation to provide so far as reasonably possible or practicable is the word and that they're under a duty to ensure the health, safety, and welfare at work of all of their employees. And that is really to see if system of work and the provision of information and training and supervision as is necessary to ensure that there is a proper scheme in place for health and safety. 

And so there is this aspect on whether there does need to be training provided for staff. There needs to be risk assessments that are in place and whether helping incidents or issues arising as a result of abuse, how that is dealt with. I mean, what I've noticed are that there is a fear amongst some staff that they don't want that flat frontline role. They don't want to be the person asking for the passport or reminding people of putting their mask on or spraying their hands with disinfectant as you go in and out of retail shops. And so there's an unwillingness for the employee to do that role because of the fact that there has been some abuse and there's also fear amongst staff members in having to do that role. 

What has arisen as a result of that is absence because they don't want to come to work as a result of it. And I have a case of resignation where the person has said, "I've had enough, I can't take this anymore." And I've had involvement of trade unions with the employers saying you're not doing enough here. You haven't trained sufficiently and you're not getting adequate supervision in respect to these matters. And then also I've had in addition to the loss of staff, staff that have raised grievances as a result of the abuse that they've encountered, so it's creating problems for the employer at a point where the employer is very stretched. And we'll be familiar with those sorts of incidents or those matters that have arisen for employers where they're saying, for me to put on an additional resource to even look at COVID passports is costing so much money that the business can't afford and then to have somebody else around in terms of managing and supervising that as well as is a whole nother issue. 

So it is a bit of, it's a difficult one. I wanted to flag up the backend and this was in October that this was done in England and this was just after the reintroduction of some of the restrictions that have been brought in. "HR Magazine" in England said that up to two thirds of workers were frightened to implement COVID-19 safety measures because of a threat of customer abuse or assault, and 50% of shop, transport, restaurant, and hotel workers had experienced abuse within the past six months and of those, 27% have been physically assaulted. 

So it's just to flag up it there that it is a matter of concern. As I say, it will not affect every business. It depends on your organisation, but it is a concern. The onus does fall on the employer to provide the health, safety, and welfare aspect of any employment environment. 

Christine: So is it really just about having a zero tolerance approach? I mean, in my local fish and chip shop, there's a sign up saying if you have a problem with wearing a mask, please tell Boris and not us. And so the employers really just have to have an absolute zero tolerance approach as a kind of start to raise issues with your staff and the customers out. But then how do you balance that with actually providing a business, you know? 

Seamus: Exactly. It is definitely a minefield. You know, what we do know is that employers have to adhere to the government instructions that are there. And the issue of the mask wearing is problematic because there's so many people that can't wear masks because of genuine medical reasons and there will be a part of that as well that will be just people that don't want to wear a mask. But like that's a difficult sensitive . . . It's a sensitive one for staff to handle. So the main thing really would be to make sure that there is training, appropriate training provided and that there is on-hand assistance for any employees that are going to get into difficulties. I think that is the aspect. I think we all have to realise that those issues are there. But it's about making the employees aware of that and having a process in place to work through that for them. 

Christine: I suppose it's about not leaving that young employee out on a limb on their own. Make sure there's another staff working near in the vicinity that can kind of moral support and backup if needed. And it's possible, I suppose, a more senior person that has that authority to kind of make a decision. 

Seamus: Yeah. Just to the other side of it is that if an employee is assaulted, there will be vicarious liability for an employer in relation to that. The employee will have an opportunity certainly to bring a claim for the personal injury against the employer and that will turn on whether or not the employer had a proper risk assessment. There was training done, that there was adequate supervision, all those sorts of things will feed into that. And so it's a difficult time. 


Contracted Standards of Behaviour

Christine: Yeah. So, Seamus, just on that we've been talking about members of the public not being kind to employees. We move on to our next topic, which is more about employees not being kind to members of the public. We kind of flipped it a bit. We're going to show you a short video of this particular incident. It's a gentleman, shall we call him, in Scotland who previously worked for the Royal Mail. You may have seen it circulating on social media. So we're asking the question, what standard of behaviour can be inferred in a contract of employment? So where's that line between just expecting people to be decent human beings? How can we . . . and dealing with something contractually, is it a disciplinary issue? So hopefully, Katie, you've got the video queued up and we can have a quick look at it. 

[silent video 00:34:19 - 00:35:06] 

So interesting one. Obviously, he's had a very long, hard morning, that particular postman, and the OAP lying in the snow is not a priority. So I suppose my first question, Seamus, is would this gentleman have been dismissed had it not been for social media, and also just the high profile nature of his employer. We're talking Royal Mail here. It's a household name. So what's your take on that? 

Seamus: So background to this is we have the older lady that has slept in the snow and unable to move. Postman comes up delivers the post. She asks for help. And he says, I've had a long day, I'm tired, I can't help you. And off he goes. I think subsequently to that there was maybe a DHL or one of those type companies that were doing a delivery that did subsequently help, but unfortunately for the individual and for Royal Mail, this was caught on camera and then shared. So the employee was subsequently sacked and dismissed and because he hadn't helped the lady whenever she'd fallen. 

We could all say, look, common acts of decency, kindness, but looking at it from an employer's perspective, I suspect, Christine, the issues that probably have arisen are that you're right, you're talking about Royal Mail. It is a household name. It's a well-known company to us all. The employee worked in a public space, and he was obviously a door to door delivering letters. He wore a uniform identifying his employer and probably he would have been known to the locals if he was delivering the mail to the same area every day. He would have been known. So the complaints follow through to Royal Mail. 

And I suppose the actions really around it when I look out from the private stance, we're looking at how would you discipline an employee in relation to this and dismiss them. We know of the various head, the limited heads in relation to when it comes to dismissal and the likes of conduct, capability, redundancy. This probably would fall under some other substantial reason. And really, what you're looking at here is the impact of the actions upon the employer's reputation. And we were talking briefly and I know just in your prior role, that you would have been advising a lot of employers and you were saying that they would have rang up a lot to say our reputation has been damaged. But you do need to be very careful when it comes to reputational damage. It's one that can often be thrown into disciplinary proceedings. And then when you get to the tribunal, the tribunal will say, well, how is this actually damage the reputation. We need proof of that. How do you establish that and what do you hold it out to be? 

So I think it's important that any organisation and I would anticipate probably that Royal Mail do you have some sort of ethos and document or some sort of policy in relation to expected standards for their employees. And certainly, I do think that the actions of the individual fell short of common decency in itself, and you can understand the impact that would have really in relation to the trust and confidence that the employer could have on the employee. Could you flip that over and say, "Well, if the employee is unwilling to do that, what other aspects of their job that they're contractually bound to do are they doing or not doing?" Don't want to be straying really into that aspect of it. But it's about the implied duty of trust and confidence and looking to see what those standards are. I think that it is important that there is something in writing, whether it's in the staff handbook, whether it's in the front page of the handbook that says these are our standards, these are our morals, these are our expectations, but certainly I do think that the employer needs to have that set out in writing so that when you come to a disciplinary that you can rely upon that. 

But I've no doubt that in this specific circumstance, that the fact that it was Royal Mail and the big factor that was on social media and it was picked up by various media outlets in Scotland further afield, that this has led to the employer taking serious action. 

Christine: Yeah. So I mean, I suppose what we're talking about is common decency and you can't possibly list everything that you expect. I mean, who would have thought left an old lady off the snow where she has fallen would come up. Is it kind of a mission statement almost that you need in your contract, or this is the values of our organisation? Is that how you would go about it, Seamus? 

Seamus: Yeah. I think that's right. Specifically, where you have a company. I mean, all organisations are providing some sort of service and that might not always be on a public basis, they might be on a on a private basis. But even from the point of view of a customer of your organisation, you'll have terms and conditions how the parties are going to interact. And it would be an entirely sensible and prudent step to have something written down to say how employees are going to react or, sorry, act in their role. And again, setting out what those expectations are so it just can't be limited to these are your hours of work. We expect you to work from this time to this time. You'll be given breaks and paid this amount. You know, it needs to be further than that. 

And I certainly think from a tribunal perspective, Christine, I would say the larger the organisation, the bigger the onus a tribunal would place on the organisation to have those sorts of things set out in writing. If you're a very small organisation with a couple of employees, the burden is not going to be the same if you are Royal Mail or Marks & Spencer, or one of the . . . or Tesco or one of the largest employers that we have. So it is about . . . what you can't do is you can apply that level of decency, certainly, and you can say what your expectation is, but you also need to let employees know what the standard of behaviour and professionalism is that's required within the role. And that's something that probably should be implied throughout the organisation from the top down to the bottom. And absolutely, and you do hear about certain employers that people say they're not good to work for it and their mission is just to make money and things like that. 

But it's things like even the corporate responsibility now that is built into organisations, where employers are prepared to spend time and money on that they should be very clear about what the expectations are that they have for their employees. 

Christine: Brilliant, Seamus. I'm just very mindful of the time here. I can see we're just coming up to the end of our webinar, and it's absolutely flowing in as usual. And so, everybody, thank you. 

Seamus: I'll maybe just mention, Christine, just for anyone, there's a fairly recent case there, Lafferty and Nuffield Health. It's a February 2020 case, slightly different to this aspect of kindness, but it does focus on reputational damage of the employer. It's an interesting read. This was a porter and coordinator within this private health care setting. And he was charged with a number of criminal offenses including attempted rape. He went to his employer, put his hands up and said, I I've been charged with these, but I deny them, and the employer ultimately dismissed the employee, even before there had been a court hearing or anything like that, on the basis that there was going to be reputational damage. 

I supposed to take away point ultimately, were backed the EAT have find that the dismissal was fair both the original tribunal and the EAT held that it was fair that the employer had acted reasonably and because they did perceive that there was a genuine risk of potential damage and they were able to set that out in detail, that out to the tribunal and show the tribunal and really importantly they carried out their proper investigation and the tribunal seem to have been swayed because they have investigated the matter clearly, and they had taken their decision on the basis of the investigation as to what happened and what the potential was in respect to the risk and the damage to the organisation. So it's slightly different in the sense of coming away from that kindness aspect, but ultimately, those cases will come down to I think, some other substantial reason and looking at the aspect of reputational damage so there's a case there if anybody wants to look at that. It is February 2020 case, Lafferty and Nuffield Health. 

Christine: Brilliant. Sorry. Apologies for cutting you off in your prime there. 

Seamus: No, sorry. It's a good case so I just wanted to flag it up. 

Christine: Yeah, I will pop a link in to email, post-webinar email. So have a look back for that if you're interested in taking a read. So yes, thank you very much, Seamus, for coming back this year to do Employment Law at 11. It's always great having a chat with you. Our details are up there if you'd like to contact us. The next webinar in this series is on Friday the 4th of February. If you'd like if you have anything in mind you want us to have a chat about, do drop us an email. There is also a really great free webinar coming up on the 20th of January. We've got Mark McAllister of the Labour Relations Agency and Emma McIlveen, barrister, coming to talk about what they think are the top 10 cases of last year, why they matter, and what you need to do to stay ahead of the law on that. So do subscribe to that and details are in the email as well. But thank you all very much for listening. And we'll hopefully see you again next month. Thanks very much.

This article is correct at 07/01/2022

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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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