Employment Law Monday Update - 22 September
Anyone who works in HR will know how quickly changes come about in Employment Law, and how hard it is to keep up with them all. With that in mind, the Michelmores Employment Team has created a weekly newsletter that encapsulates the most significant Employment Law developments of the last 7 days. The Weekly Update will be sent out around midday on Monday, so be sure to keep an eye out for it!
AB v A Chief Constable  EWHC 1065 (QB)
Providing Absence and Disciplinary Records to New Employer
The Claimant was a senior officer in the police force. Between 2011 and 2012 he had taken 168 days’ sickness absence.
The Claimant was subsequently alleged to have abused his position of influence and a disciplinary hearing was convened. However, the police received the Claimant’s letter of resignation 13 days before the disciplinary hearing was due to be held and the hearing was therefore cancelled.
Following the Claimant’s resignation from the police force, he was offered a position within a Regulatory Body (‘RB’), subject to his references being ‘entirely satisfactory’. RB contacted the police force and requested a reference including the Claimant’s absence record and any other information of significance. The police initially provided a basic reference stating that it was not the force's policy to provide further information or to accept any responsibility for loss or damage caused as a result of the reference. However, concerned that they had not provided enough information, the police then notified the Claimant that they wished to send RB a more extensive reference, including details of his sickness absence and disciplinary proceedings. The Claimant applied to the High Court for an injunction preventing the police from sending the second reference to RB.
The Judge found that there was a tension between the police force's public law duty of honesty and integrity and the applicability of the Data Protection Act (‘DPA’).
Firstly, sickness absence falls under the DPA as 'sensitive information' and is not to be disclosed freely. Therefore, it was held that the disclosure would be in breach if the DPA.
Secondly, the Judge considered that disclosure of the information about the disciplinary proceedings would be unfair. The Judge emphasised that ‘the focus must be on fairness in the immediate decision to disclose the data’ such that ‘…assessing fairness involves a balancing of the interests of the data subject in non-disclosure and the public interest in disclosure.’
Tips for Employers
This case highlights the importance of considering the DPA when providing a reference for a former employee, and assessing the fairness of including or excluding certain information. Employers who implement and maintain a policy with regard to the provision of references will place themselves in a safer position than those who do not.
Hendy v Ministry of Justice  EWHC 2535 (Ch)
The Claimant, a senior Court of Appeal lawyer, was suspended in 2011 on full pay from the Ministry of Justice (‘MoJ’) after complaints from two colleagues about his behaviour. In 2013, a finding of gross misconduct was made and he was summarily dismissed.
However, on appeal, the Claimant's dismissal was overturned, on the grounds that his version of events had not been put to the complainants, and therefore his defence had not been tested. The Appeal Chair made recommendations to make the investigation more thorough and a new Investigating Officer was appointed. As a result, some of the Claimant’s complaints were put to the complainants and witnesses but, after this process had been concluded, a disciplinary hearing was still deemed to be necessary.
The Claimant applied to the High Court for an interim injunction to prevent the hearing from going ahead. He submitted that the extent of the investigation was still insufficient. Further, he contended that the recommendations of the Appeal Chair should be considered to be contractual and, by not fully adhering to these, the investigation was still in breach.
The Judge found that the recommendations of the Appeal Chair were not contractual; however, it was held that a general duty of fairness may apply.
With regard to the sufficiency of the investigation, the Judge examined the recommendation that ‘each and every part of the Claimant’s case, including his reasoning on credibility’ needed to be ‘put to each and every relevant witness’. However, it was held that the necessary degree to which complainants or witnesses need to be consulted was simply ‘enough to enable a reasonable view to be reached’. The Judge found that the investigation had satisfied this criterion. The Claimant had not established that there had been a sufficiently serious level of unfairness to justify the suspension of proceedings.
Tips for Employers
This scenario is rare. However, it does shed some light on the degree of detail that a disciplinary investigation must contain. Employers will need to have gathered enough information to enable a reasonable view to be reached. The investigation will not be regarded as invalid if it contains minor gaps, provided careful and targeted efforts have been made to produce a largely accurate and complete report on the matter.
Mardner v Gardner and others [UKEAT/0483/13]
Claimant Entitled to Costs despite having Insurance Cover and not Paying for Fees Herself
The Claimant won her case in the Employment Tribunal and subsequently applied for costs.
However, the Tribunal Judge refused to award costs to the Claimant on the ground that she was not personally out of pocket as her case was funded by her legal expenses insurers.
The Claimant appealed to the Employment Appeal Tribunal (‘EAT’).
The EAT overturned the Tribunal’s decision, applying the reasoning set out in the case of Parry v Cleaver  AC 1. Public policy dictates that a party should not avoid the costs consequences of their unreasonable conduct merely because their opponent prudently entered into an insurance contract. This would allow the erring party to benefit from their opponent’s insurance, which would be wrong.
Tips for Employers
This case highlights that the risk of costs awards will not be avoided even where the Claimant is not personally paying for their legal expenses.
BIS Guidance: Right to Accompany Pregnant Women to Ante-Natal Appointments
From 1 October 2014, employees and agency workers will have a right to take unpaid time off to accompany a pregnant woman with whom they have a ‘qualifying relationship’ to up to two antenatal appointments.
The Department for Business, Innovation and Skills (‘BIS’) has published a brief guide for employers. The guide provides information on eligibility and verification of entitlement, as well as the protections that exist for those seeking to exercise the right.
A copy of the guide can be found here.