Whose lie is it anyway? Not for employer to decide if whistleblowing disclosure is protected

For a whistleblower to benefit from the statutory protections, his disclosure must be protected, i.e., be (usually) about the breach of a legal obligation and reasonably believed by him to be true and in the public interest.  If he deliberately lies or makes his disclosure only to advance his own interests or prejudice somebody else’s, he may lose that protection.  While he may still be able to claim unfair dismissal, he cannot get to the uncapped compensation available to ‘proper’ whistleblowers.

But who decides whether he is lying or whether he reasonably believes he is acting in the interests of the public.  Is it the employer or the Employment Tribunal?

Beatt –v– Croydon Health Services NHS Trust was a long story.  A very long story. The Employment Tribunal judgment ran to over 200 pages, an “immense labour” said the Court of Appeal, clearly damning with faint praise.  However, it was also somewhat randomly paragraphed and rather repetitive, and “not a model I would encourage others to follow” said the Judge shortly afterwards, so abandoning the “faint praise” bit of that almost immediately.

Dr Beatt made disclosures about his employer’s decision to suspend one of his key assistants more or less mid-surgery.  He alleged, and the Coroner later accepted, that this had potentially contributed to the death of a patient.  He also made a related series of complaints about other members of his surgery team which the Trust eventually decided had been made out of personal malice rather than any objective and genuine concern about patient safety at the Trust.  Therefore it dismissed Dr Beatt for misconduct, accepting entirely that it was because of his disclosures, but denying liability because (in its view) those disclosures were “unsubstantiated and unproven” and in part aimed at discrediting and destabilising others.

The ET was critical of the Trust taking 9 months to investigate the charges against Dr Beatt, but it was not until close on five years later that the case staggered wearily into the Court of Appeal, reduced essentially to a single question – at the point in the legislation where it says that whistleblowing protections are engaged “if the reason for the dismissal is that the employee made a protected disclosure”(section 43 ERA 1996), is it the employer’s reason which matters or the actual reason?

That is not as obvious as it sounds.  Remember that in most cases the fairness of a dismissal is based on the employer’s reasonable belief at the time, so a termination for misconduct could be fair even if the Employment Tribunal later found that there had been none.

The Court of Appeal was clear – the employer’s belief in whether the disclosure was genuinely made in the public interest or with any real belief in its truth is not the determining question.  If it were, it would be too tempting for employers to argue that they saw some element of malice or self-advancement in the disclosure, that whistleblowing protection was therefore forfeited and that the subsequent dismissal was fair.  After all, it is well recognised that protected disclosures are not always factually well-founded, that they are sometimes intemperate in tone and that they will often necessitate damaging criticisms of other employees.  Such arguments would be easy to make. No, the question of the employee’s reasonable belief that his disclosure was true and in the public interest was for the Employment Tribunal to decide as an issue of fact, and not for the employer as a matter of its perception at the time.

Lessons for Employers:

1          The Trust said that even if Dr Beatt’s conduct in making his complaints had not been found to be misconduct, it was still a “breach of trust and confidence” meaning that he had to go anyway.  The Court of Appeal agreed that in the right circumstances a valid distinction could indeed be made between dismissal for the fact of making a disclosure and dismissal for the manner in which it is made, which could potentially be fair.  However, to get home on the manner point, the employee’s conduct had to be really seriously unreasonable, rather than merely ordinarily so.  If you retaliate against ordinary unreasonableness you will be treated as retaliating against the disclosure itself, and will therefore be sunk.

2          If you are going to rely on a lack of reasonable belief by the employee in the truth or public interest element of his disclosure, do be very sure (i) you are right; and (ii) even more so, you can prove it.  The Trust’s witnesses were kicked all around the ET’s park in credibility terms because they were largely unable to explain why they had reached the conclusions they had about Dr Beatt’s motives.

3          Last, do remember that nailing your pleaded colours to the mast of the disclosure being unprotected is a high-risk play – you have just freely admitted that your dismissal was in retaliation for the disclosure, so if it turns out to be protected after all, you are in a lot of trouble.

How to make time fly – HR preparation for the GDPR

Exactly one year from today, Brexit notwithstanding, the EU General Data Protection Regulation comes into effect. This is aimed primarily at commercial progressing of customer data but still has significant ramifications for HR’s handling of employee data. Compliance with the Data Protection Act as it stands will not be enough to protect against breaches of the GDPR, and the new law will represent fertile ground for employees looking to blow the whistle on something.   The numbers being waved around as possible fines are enormous, but even though we think they will be the tiny exception rather than the rule, this isn’t an area for HR to treat casually.

To mark the occasion of just a year to go, our Global IP and Privacy blog has today posted the first in a series of pieces on the GDPR, written with an employer focus. A year may seem an eternity away but ensuring that you are squeaky clean by next May can entail a lot of work before then. So click here to read today’s piece on subject access requests and the position under the GDPR and please do keep an eye on Employment Law Worldview and the IP & Privacy Blog for future posts in this series.  These which will include guidance on your employees’ new rights to access personal data, rights to data portability, to rectify and delete data and to restrict processing.

If you have any questions about what your organisation should be doing to ensure compliance with the GDPR, please speak to your usual Labour & Employment contact or a member of our global Data Privacy & Cybersecurity team.

The Senior Managers Regime in 2018 … a brave new world of regulation

Andrew Pullman explores the serious people challenges for all financial institutions facing the new senior management rules and regulations in 2018

 

A New World

From 2018, the Conduct Rules laid out in the Senior Managers Regime will apply to all financial institutions – we are expecting further details in June 2017. This is an expansion of the current regime for the banks and insurance companies to which it currently applies. The introduction of a culture of individual responsibility is a significant change and it presents a major challenge to the businesses it will affect.

When the responsibility is placed on people, businesses need to ensure that all their staff are appropriately informed and involved (or they run the risk of breaching rules and triggering disciplinary and regulatory sanctions). It is vital that Senior Managers help the people they manage get to grips with the new rules by providing practical training and introducing systems and processes to help manage the process.

Providing a Guide

As the SMR was introduced throughout the banking and insurance industries, one common approach was to run workshops on “Culture, Values and Regulation” or similar designed to integrate the new regime into affected businesses and organisations and (equally importantly, to be seen to do so).

At the heart of the new culture are the core 5 rules themselves, which are as follows:

  • Rule1: You must act with integrity
  • Rule 2: You must act with due skill, care and diligence
  • Rule 3: You must be open and cooperative with the FCA, the PRA and other regulators
  • Rule 4: You must pay due regard to the interests of customers and treat them fairly
  • Rule 5: You must observe proper standards of market conduct

In order to fully understand the rules and the manner in which they are to be applied to everyday work, it is important to provide staff with an overview, not just explaining what the accountability regime is, but also why this is happening and what the intended purpose is. You can then use a series of scenarios to bring the rules to life for everyday work.

From a broad examination of the regime, participants are then able to identify the key features of the required culture as it will apply to them and, crucially, how these differ from the past.

Bespoke Direction

Rules are a framework designed to be rigid. However, the businesses and organisations they are to be adopted by will be varied, with subtle but important operational differences.  This is why it is vital to understand how the new regime will work at your organisation – firms will need to create a compliant system which will uphold the values and purpose of the rules within a familiar framework yet also not interfere with the smooth running of business.

One way to test these systems and ensure that participants are able to apply the rules in the real situations they will be facing is to use scenarios as part of the training – where possible, drawn from real-life case studies. The ultimate aim would be for delegates to use the understanding and experience of the session to create personalised action plans they can immediately implement when they return to their work.

The regulators have stated that their extended regime will be ‘clear, simple and proportionate’. The difficulty comes with the integration of these “clear and simple” rules into complex organisations and the scope for discovering at that time that the regulators’ after-the-event views of what would have been proportionate in any given case do not necessarily accord with yours.

 

Andrew Pullman is Managing Director of People Risk Solutions, a Human Resources consultancy specialising in culture, values and regulation in financial services.

Managing Political Speech In The Workplace

In the current political environment, employers and employees alike may be wondering – what, if any, political conversation in the workplace is acceptable or appropriate?  Tones of “freedom of speech,” “freedom of association,” on one hand, intersect with tenors of “workplace harassment” or simple annoyance, on the other.  Although like the political debates themselves, the rules governing politics in the workplace are not entirely black and white, here are some important guidelines.

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Unclear and present danger – incorrect use of “Independent Contractor” arrangements may have expensive consequences

The ever-vexed question of whether a worker is an employee or independent contractor has once again come before the Australian courts. The recent decision of Balemian v Mobilia Manufacturing Pty Ltd & Anor provides a reminder to employers of the potential financial ramifications of getting this wrong.

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Webinar: New Laws in Germany Regarding Agency Workers and Freelancers − What Employers Need to Know

Squire Patton Boggs presents a webinar to discuss the recently-introduced significant reform to the laws governing the leasing (temporary hire) of personnel in Germany, which significantly affects businesses working not only with agency workers, but freelancers as well. We will provide practical advice on how to deal with this new legislation and explain what companies should be aware of now as well as the steps they need to take.

On 14 June 2017 at 4.00 p.m. BST (UK) (5.00 p.m. CEST, 11.00 a.m. EDT, 8.00 a.m. PDT) Martin Falke and Laura Sparschuh will also discuss what is coming up in the legislation pipeline, including a new law relating to the transparency of remuneration, which is likely to come into effect later in 2017.

In addition, they will cover:

  • Recent Labour Court judgments that may have an impact on your day-to-day business
  • Best practice on granting stock/stock options of overseas parent companies

The webinar will be a 50-minute presentation in English, followed by a 10-minute online question and answer session.

Intended to help you manage labour and employment law risk across your international operations, the webinar will be of interest to both HR professionals and in-house counsel.

This webinar is part of our 2017 series focusing on key labour and employment issues in countries throughout Europe, the Middle East, Asia Pacific and the US.

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Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable”. Main parties’ employment manifestos reviewed

General Elections. Don’t they seem to come round more frequently than they used to? A tough call for voters, this particular one, not just because of economist JK Galbraith’s wise words above but also because the outcome won’t make the slightest difference to the biggest issue of the day, the terms on which we are allowed by the rest of the EU to come out of Europe.

So what does the committed voter get to choose between? From the high-level employment perspective, all the main manifesto documents look broadly the same – more rights and protections for workers and the equally laudable, but obviously entirely incompatible, less red tape for businesses. They agree, sometimes violently, in relation to the importance of filling skills gaps, increasing apprenticeships, payment of at least the minimum living wage, preservation of existing EU-derived employment laws and curbs on zero hours contracts. But as we know, election manifestos are much like new Thameslink timetables – launched with great fanfare but no real expectation on users’ part that any of it will actually be true. So before the nation pulls the duvet over its collective head on 8 June, let us take a brief look at the main parties’ employment manifestos to see if we can separate the disingenuous from the delusional from the outright dishonest.

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NLRB Rules That Barring A Former Hotel Employee Who Sued Her Employer From The Premises Is An Unfair Labor Practice

On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer. Continue Reading

Good news for employers facing holiday pay claims

Rumbling around at the less well-publicised end of the holiday pay saga is the question of just how far back such claims can go.  Changes to the Employment Rights Act 1996 limited this to two years for claims brought after 1 July 2015, but thanks to Bear Scotland Limited, the actual exposure may be very much less. Bear is a case where the outcome is far more interesting than the facts, so put briefly, it goes like this:

  1. Underpaying holidays, in particular through the exclusion from the calculation of something which ought to be in it (e.g. overtime or commission earnings) is an unlawful deduction from wages.
  2. Under Section 23 ERA, any claim to the Employment Tribunal for unlawful deductions must be made within 3 months of the deduction or of the last of a series of deductions;
  3. “Series” requires a chain of underpayments to be linked by both time and cause. If they are for different reasons or too far apart, they will no longer count as a series and so any of them falling more than three months before the referral to Acas will be out of time and (subject to a “not reasonably practicable” discretion on the part of the Tribunal), not recoverable;
  4. “Too far apart” for these purposes was determined in the original version of Bear Scotland as anything over three months. Following a hearing in December last year, this has just been upheld by the Employment Appeal Tribunal in that same case.

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Industrial Commission of Arizona Issues Long-Awaited Proposed Rulemaking Regarding Arizona’s Paid Sick Leave Statute

We previously reported that all Arizona employers will be required to make paid sick leave available to their employees beginning on July 1, 2017. The law requires that businesses with 14 or fewer employees provide at least 24 hours of leave annually, and businesses with 15 or more employees provide at least 40 hours of leave annually, to employees to treat their their own illness or obtain preventive care, to care for a family member who is ill or needs preventive care, for certain circumstances associated with sexual or domestic violence, and for business closures precipitated by outbreaks or threatened outbreaks of communicable disease.

On May 10, 2017, over six months after the election, the Industrial Commission submitted a Notice of Proposed Rulemaking to the Arizona Secretary of State. The proposed rules answer a few open questions commonly held by Arizona employers, leave many other questions unanswered, and raise some new issues. We have prepared an alert for Arizona employers detailing their obligations under the Arizona statute, addressing the questions answered in part by the new proposed rules, and explaining what steps employers can take if they wish to submit further comment before the rules are finally adopted on June 5, 2017.

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