February 2013 case updates

case updatesWhistle-blowing – protection for ex-worker disclosures

Summary: Can disclosure of information after employment ends be a protected disclosure under the whistle-blowing provisions? Yes says the EAT in Onyango v Berkeley (t/a Berkeley Solicitors). The case can be found here.

Facts: Mr Onyango, a solicitor, was employed by Berkeley Solicitors until 15 June 2010. On 13 August 2010 Mr Onyango wrote a letter to Berkeley Solicitors threatening Tribunal proceedings. On 17 September he wrote a letter to the Legal Complaints Service about Berkeley Solicitors. Subsequently, Berkeley Solicitors reported Mr Onyango to the Solicitors Regulation Authority (SRA), citing allegations of forgery and dishonesty, which led the SRA to investigate him.

Mr Onyango alleged that his letters of 13 August and 17 September amounted to protected disclosures, and that Berkeley solicitors had subjected him to a detriment by reporting him to the SRA.

A Tribunal dismissed Mr Onyango’s claim and held that a disclosure after termination of employment could not be a protected disclosure. Mr Onyango appealed that decision.

In a short judgment, the EAT disagreed with the Tribunal’s original view. It held that it was already established law that an individual could claim in respect of detriments which occurred after employment ended, and that, as the “workers” who were given protection included former workers, there was no reason not to say that protected disclosures also could be made after employment ended.

Implications: This is an important decision, which extends the protection for whistle-blowers and adds to previous decisions to the extent that a qualifying disclosure can now be protected whether it was made:

  • during employment with the respondent employer;
  • during employment with a previous employer;
  • after employment with the respondent employer has terminated; or
  • before the whistleblowing legislation came into force.

Employers should review their policies to make clear that members of staff will not be victimised if they make protected disclosures not just while they are working for the organisation, but also after the relationship has ended. This should be communicated to all staff but, most importantly, to those in positions which provide an opportunity to victimise a current or former member of staff because a protected disclosure has been made. The most likely scenarios in which a worker would argue that s/he has suffered a detriment for a post-termination protected disclosure is where the employer refuses to provide a reference or refuses to consider him/her in a future recruitment exercise.

The case is also important in the context of post-termination confidentiality clauses, which are often included in compromise agreements. This is because the Employment Rights Act makes any agreement void where it prevents a protected disclosure, including an agreement not to institute proceedings under the ERA or for breach of contract. Since a disclosure made after employment ends can be a protected disclosure, this calls into question the extent to which such clauses are enforceable where the purpose or effect of the clause is to silence a would-be whistle-blower.

The decision may well raise important issues in the case of the former chief executive of United Lincolnshire Hospitals Trust, Mr Walker, who has been in the press recently for reportedly breaching a post-termination confidentiality clause settling his whistleblowing unfair dismissal claim (BBC News – NHS chief ‘stopped from speaking on patient safety’).

The agreement sought to prevent Mr Walker from making any “detrimental or derogatory statements about [his] employment, its termination, the Trust or any of its associated persons”, or disclosing the terms of the agreement itself. Mr Walker recently gave an interview to the BBC, alleging that he was dismissed for expressing concerns over patient safety and had no choice but to sign a ‘gagging clause’. The Trust’s solicitors have apparently argued that Mr Walker breached the terms of the confidentiality clause in his compromise agreement by blowing the whistle on the Trust in an interview to the press.

Following the Onyango decision that a disclosure made after employment ends can be a protected disclosure, there is now an argument against the Trust that the ‘gagging clause’ that attempted to silence him is unenforceable.

If you have any queries in light of the above decision on post termination confidentiality clauses then please do not hesitate to contact Luke Menzies, at , or another member of the team for further assistance.

Appeals against dismissal – careful how you handle it

Summary: When, after an internal appeal against dismissal, a lesser penalty was imposed, did that expunge the earlier dismissal?

No, says the EAT in Piper v Maidstone & Tunbridge NHS Trust, (on the facts of that case). The case is available here.

Facts: The Reverend Piper (P) was employed as a Chaplain by Maidstone and Tunbridge Wells NHS Trust. The Trust’s disciplinary policy formed part of P’s contractual terms and conditions of employment. The policy provided that, in respect of disciplinary hearings, in exceptional circumstances management could take the view that even though a proven disciplinary offence might warrant dismissal, the organisation and the employee would be best served by ‘action short of dismissal’; namely, demotion or transfer to another role without pay protection. However, it stated: “If the employee does not agree with this course of action, dismissal is the only alternative.” The policy provided the right to appeal against dismissal.

An incident occurred between P and his manager, for which P was dismissed for gross misconduct and was informed of his right to appeal. P exercised this right and was invited to an appeal hearing.

Following the appeal, the Trust decided to substitute the initial sanction of dismissal, and instead (1) impose a final formal warning which was to remain on his file for 18 months; (2) downgrade him; (3) reduce his pay accordingly; and (4) transfer him from his previous base at Maidstone Hospital to the Trust’s hospital at Tunbridge Wells.

P lodged a claim in the Tribunal for unfair dismissal. In addition, he emailed the Trust and stated that his demotion and downgrading to a lower role was unacceptable. The Trust treated this letter as a resignation and resisted the claim on the grounds that the dismissal was overturned on appeal; therefore P had not been dismissed.

The Tribunal agreed with the Trust. P appealed. The EAT overturned the Tribunal’s decision. The EAT found that under the Trust’s appeal procedure the Trust was not entitled to impose a lesser penalty without the consent of P. As P had not agreed to the alternative sanction, the dismissal stood, and his claim for unfair dismissal was allowed to proceed.

Implications:

This case is good reminder that overturning a decision to dismiss does not always avoid an unfair dismissal claim. Do check your disciplinary policy to make sure that you do have the right to impose a lesser sanction and whether you have to agree this with your employees. In this current case, the position would have been different had the policy not required the employee’s consent to the lesser penalty: the dismissal would have probably been treated as if it had ‘vanished’ when the new penalty was imposed. It also makes sense to have a wide range of sanctions available to you in the policy as it will provide flexibility when dealing with staff.

Disability discrimination – beware relying on lack of knowledge

Summary: Does an employer have “imputed knowledge” of an employee’s disability even if the wrong diagnosis has been attached to it at the time? Yes, says the EAT.

The case, Jennings v Barts and The London NHS Trust, is available here.

Facts:

Mr Jennings worked in IT support for the employer (‘the Trust’) for nine years until his dismissal in January 2008 on grounds of poor attendance due to ill health. Throughout his employment he had intermittent ill-health absences, initially due to back problems and then due to angina and a stress-related psychiatric condition apparently caused by a road traffic accident in February 2006.

An Occupational Health (OH) report in November 2007 diagnosed post-traumatic stress disorder (PTSD) as a result of the 2006 accident, and suggested a phased return starting in four to six weeks. The PTSD manifested itself in various ways including anxiety, panic attacks and sleep disorders. Mr Jennings started cognitive behavioural therapy, and was also asked to complete a “stress at work” questionnaire. He never completed the questionnaire, despite a reminder to do so.

Following a further meeting under the long-term absence procedure, and a further OH assessment, Mr Jennings was dismissed in January 2008 at a final stage meeting under the long-term absence procedure. Mr Jennings’s manager took the view that the continued absence was unfair to colleagues, the department was under pressure, and there was a possibility Mr Jennings might not in fact return to work (despite a report saying he may have been able to return in March 2008). Mr Jennings’ appeal was unsuccessful.

Mr Jennings brought Tribunal proceedings for unfair dismissal and disability discrimination (failure to make reasonable adjustments). The Tribunal rejected both claims. In respect of the disability discrimination claim, the Trust accepted that Mr Jennings had been suffering from a mental impairment amounting to a disability and the medical evidence before the Tribunal confirmed a diagnosis of paranoid personality disorder and major depression. However, the Trust argued it had not known (nor could reasonably be expected to have known) the true position at the time and therefore had no duty to make reasonable adjustments. The Tribunal disagreed, and held that the Trust had ‘imputed knowledge’ of the disability.

Mr Jennings appealed to the EAT and the Trust cross-appealed in respect of the Tribunal’s above finding of ‘imputed knowledge’. The Trust argued that the Tribunal had been applying a “hindsight” test and that knowledge of a major personality disorder could not be ascribed to an employer simply “as a result of witnessing a random collection of symptoms and diagnoses”.

The EAT upheld the Tribunal’s decision in respect of Mr Jennings’ appeal and the Trust’s cross-appeal. Of particular interest is the EAT’s finding that if a wrong label is attached to a mental impairment then a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight; it is giving the same mental impairment a different name and, given that, the issue of whether or not an employer knows or should have known there is a disability is essentially a question of fact. In this case the Trust knew of the symptoms and must be taken to have known that the nature of their cause was some sort of mental impairment.

It was of particular significance that the Trust had an Occupational Health department which had access to details of Mr Jennings’ medical conditions. In this context, the Tribunal had referred to the Equality and Human Rights Commission’s Code of Practice on disability discrimination which points out that if any agent of the employer (such as an occupational health adviser or HR officer) knows, in that capacity, of an employee’s disability, the employer will not usually be able to claim that it does not have the required knowledge. The Code goes on to say that employers need to ensure that where information can come through a number of channels, there is a confidential means for bringing that evidence together.

Implications:

Employers should note from this case that, where there is sufficient information for it to know that the employee has some form of mental impairment that is long-lasting and has a substantial effect on day-to-day activities, it does not matter if the precise diagnosis at the time turns out to be mistaken. Further, if the employer has access to details or knowledge of an employee’s medical condition (whether through an Occupational Health department or otherwise), then do make sure that there is a (confidential) process in place to ensure that the knowledge can be shared.