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Employment Law Worldview

Driving Miss crazy – Polish bus driver suffers loss of perspective

Posted in Health & Safety, Stress

Yet another employment law dilemma in Poland has popped up in the media as we trudge towards the end of 2014. Not only Church vs State laws were stirring emotions (Church –v- State in Polish pregnancy dismissal claim) but also Saving Life – vs – Parking Properly was hot on the media agenda at the beginning of December.   

A 23 year old bus driver was just starting her early morning shift when she noted the only passenger in the bus collapse and fall on the floor. After calling for an ambulance, she started CPR immediately in an effort to save his life until the ambulance arrived to take over. The passenger may consider himself very lucky that while doing her bus licence the driver decided to take also a first aid course, and even luckier that she was courageous and determined enough to apply this knowledge in practice. Not that many of us would.   

The whole situation was recorded by the CCTV cameras in the bus.  You can see a small woman in a very narrow bus aisle giving CPR to an unconscious passenger. According to Wikipedia effective CPR involves chest compressions at least 5 cm (2 in) deep and at a rate of at least 100 per minute in an effort to create artificial circulation by manually pumping blood through the heart and thus the body. And imagine doing it for 15 minutes as the bus driver did! Those who have tried this (whether in health and safety training or in real life) will know that 15 minutes is more than most people could handle without requiring immediate medical assistance themselves – usually only 2-3 minutes calls for a change of life-saver.    

Whether thanks to the first aid training, the adrenaline pumping through her veins or simply her motivation not to have a man die on her, the driver saved the passenger’s life.  She was publically rewarded by the City Mayor and thanked by many ordinary passengers and city inhabitants as a credit to her job. Surprisingly, we have also learnt that she received a shouted warning from her line manager that after what happened she had been so traumatised that she had failed to take the bus to its regular parking place and park it where it belonged.    

Trade unions came to her defence. In this Public Transportation Authority, however, one rule is known to all – in order to protect passengers and other persons’ life, no driver is to drive a bus immediately after an accident as driving under such stress poses significant risks (not only in public transportation). Probably there is no express internal rule stating: “Do not drive a bus after giving 15 minutes life-saving CPR to a passenger” even though the shock and trauma could be at least as bad.  However, even in the absence of such a rule, you would hope that those who know how to save a life and actually do it will not be punished afterwards for not taking up their job duties immediately, for being human and feeling possibly more than slightly emotional and shaky afterwards.    

The Public Transportation Authority has promised to investigate the matter and take appropriate action against those guilty of such inconsiderate behaviour. Now that is called living under stress. Maybe there is another employee who should consider not driving…!  The consolation for the Authority is that this is far from the first time (nor will it be the last) that a transport official has so spectacularly lost sight of the bigger picture in favour of matters of procedure.  How about this example http://www.employmentlawworldview.com/poor-platform-for-employee-suspension-points-to-derailed-hr-training/ from Britain’s railways? 

Mediation practice – when sorry seems to be the hardest word

Posted in Mediation

Last week I read a good post by US mediator Jan Schau about the power of a genuine apology in a mediation.  She said, quite rightly, that an apology which is not perceived as genuine can do more harm than good.  Anybody who has listened to the pre-recorded message of “regret” for yet another delayed commuter train will know exactly how this feels!

So what makes an apology genuine?  Or maybe more importantly, what will help it be perceived as genuine, whether it strictly is or not.  I do not advance for a moment the theory that since in an apology sincerity is everything, you should concentrate on faking that convincingly.  However, the fact remains that if you do not come across as genuine in your mediation, whether you actually are or not will not matter.  

Ms Schau set out five pointers to making your apology genuine:

(i)         A verbal acknowledgement – the actual words “I am sorry“;

(ii)        an acceptance of responsibility without disclaimer or excuse;

(iii)       some offer of restitution (“I am going to make this right by …”);

(iv)       evidence of your learning from the experience; and

(v)        a request for forgiveness in some shape or form.

As Ms Schau accepts, however, this is much harder to get to than one might hope.  The words have to be said, but they are little or nothing without the appropriate body language and, as importantly, the correct timing.  In a mediation, for example, it may be very important to the aggrieved party to have his say and he may regard too early an apology as a deliberate attempt to pull the rug on this, to deny him the chance (but not the need) to get his views off his chest.  This will particularly be the case if, once the apology has been given, the other party clearly considers that nothing more need be said. 

It must also be noted that apologies “without disclaimers or excuses” are tough to expect, especially in workplace disputes where there are potentially many layers of legal and moral responsibility. The person tendering the apology may feel very strongly that he/she is entitled to one also, and/or that the receiving party’s upset is invented or over-stated or shows him/her to be wildly over-sensitive.   There may have been some provocation which explained the out-of-character response, at least in part, and the person offering the apology is bound to want to rely on this.  In those cases there is little chance also of a meaningful offer of restitution and a mediator who pushes a party too far on this may risk losing that person’s buy-in to the principle of some form of acknowledgement and maybe to the mediation altogether.  Especially in workplace mediations, one party may regret causing the other unhappiness but that does not mean at all that he/she would not do the same again next time.  The phrase “I am sorry if I upset you” contains in the “if” some in-built scepticism, so it will rarely be as effective as “I am sorry that I upset you“.  However, the acknowledgement of the distress as a fact will stick in the teeth of someone who believes the distress to be untrue or unnecessary or who fears being sued for it.  An offer of restitution, even if it is genuinely warranted, will always feel like an admission, and despite the privileged bubble in which the mediation takes place, that is often a step too far. 

Ms Schau queries whether an apology must be spontaneous to be effective at a mediation, or whether the parties can usefully be coached and brought together specifically for that purpose.  I don’t think it matters too much.  Spontaneous won’t work if the apology is made without sincerity or in an overt attempt to brush away a difficult conversation.  Equally, a slower coaching approach, though superficially less convincing (“why are you only telling me this now?”), may be effective if it helps one or both parties realise that an apology might be appropriate in the circumstances, or where one party initially lacks the skills or words to say sorry in a manner which does not look forced or grudging.

I am less convinced by the requirement of a request for forgiveness.  To some extent this is implicit in any apology, but I would be very hesitant to encourage or coach any party to a mediation to make it express.  The problem is two-fold.  First, a request for forgiveness is even harder to make convincingly than an apology when you don’t mean it.  Second, it is to some extent a further imposition on the person wronged – “not only did I upset you in the first place, but now I want you to help me feel better about that”.  Forgiveness may or may not come over time, but I do not think it can be done “to order” and would not recommend that it be sought.

So I think the position is at the same time both simpler and more complex than Ms Schau’s five points.  More complex because perceived genuineness is only part of the picture.  Simpler because it takes some courage to express a real apology face-to-face in a mediation and we should perhaps not examine the form of the thing too closely.  If it feels right, it probably is.   

And finally from me for 2014, thinking of delayed commuter trains, my personal congratulations to London’s Thameslink for the sheer time and effort it must have invested in order to take a service like First Capital Connect and replace it with something worse.   Well done, chaps.  Now if you could just work on (ii), (iii) and (iv) above, we might be getting somewhere.

Another early holiday gift to labor from the NLRB: Board implements final “ambush” election rule

Posted in NLRB, Union

On the heels of its decision requiring employers to permit employees with access to employer email systems to use those systems to send emails concerning non-business related matters, including union organizing and other communications concerning terms and conditions of employment (for example, soliciting support for wage and hour class actions) – see our post here on the issue – the National Labor Relations Board has delivered organized labor another gift by implementing its controversial final rule on union elections.  Claiming that they will “modernize and streamline the process for representation disputes,” the rules represent a giant shift in how private sector US employees exercise their right to vote whether to be represented by a labor union.  Although certain to be challenged in the courts, some of the key changes – effective April 14, 2015 – are:

  • employers will be required to identify all legal issues prior to an initial hearing (to be held as early as 8 days after the filing of the representation petition, which now can be filed electronically); failure to raise an issue in an initial statement of issues constitutes a waiver of any later-raised issue;
  • employers must provide a list of prospective voters prior to the initial hearing to the NLRB and the petitioning union; under the former rule, such a list was not required until after an election had been directed;
  • certain election eligibility issues, such as supervisory status, which previously could be litigated in the pre-election hearing, now are deferred to post-election procedures, where the right to raise them is no longer guaranteed;
  • the final pre-election list of voters (referred to as the Excelsior list), previously required 7 days after direction of the election, will now be required 2 days after direction of the election; and
  • employers will have to provide the petitioning union not only the home mailing address, but also the personal phone number and personal email address (if known) of voters appearing on the pre-election voter list.

By far, however, the most substantial impact of the changes is that under the new and so-called “modernized and streamlined” rules, union elections, which previously would take place no sooner than 42 to 45 days after the filing of a petition, could now be ordered in as few as 10 days after petition filing.  No surprise, therefore, that these rules have been labeled the “ambush” election rules, as employers likely will now have far less notice and far less opportunity to communicate their message to employees prior to a union election. More information about the rules is set forth in a fact sheet posted on the NLRB’s website here.

Given these changes, it is imperative that employers have a plan of action ready to go in the event of union organizing activity.  With the accelerated timeframes imposed by the new rules, and the serious consequences that may follow in the event an employer does not raise all possible issues at the earliest opportunity, taking a “we’ll figure it out as we go” approach no longer is a viable or business-sensible option.

As we mentioned in our prior post, the publication of this rule, along with the decision concerning employee access to employer email systems, may just be the beginning in a string of pro-union/pro-employee decisions to be issued by the National Labor Relations Board prior to the new year.  Stay tuned for decisions to issue next week in the joint employer case (Browning-Ferris Industries) and scholarship football player case (Northwestern University), and possibly others.

NLRB Grants Employees the Right to Use Employer Email Systems for Non-Business Purposes

Posted in Employment Policies, NLRB, Union

Today, the National Labor Relations Board reversed its 2007 decision in Register-Guard [pdf] and held in Purple Communications, Inc. [pdf] that employers that provide employees with access to employer email systems for business-related purposes must permit employees to also use those email systems for non-business related communications, such as union organizing and other communications protected under the National Labor Relations Act, as long as it occurs during non-working time.   Although the decision does not require that employers provide employees with access to email if they presently do not have such access, and allows employers to impose a total or partial ban on non-work related emails if special circumstances exist making such a ban necessary for discipline or production reasons, the decision provides a broad right to employees to use employer property – its computers and email servers – for non-work related purposes, including purposes that may be directly against the employer’s interests.

The NLRB’s decision here likely is a harbinger of things to come over the next week, as the term of one of the current Board members, Nancy Schiffer, will expire on December 16.  It is anticipated that prior to the end of her term, the Democrat-majority Board will issue a number of other decisions involving controversial topics, including the pending Browning-Ferris Industries case involving the joint employer standard under the Act and the Northwestern University football player case, which involves the issue of whether scholarship athletes are employees under the National Labor Relations Act and therefore have the right to unionize.

Now is the time for all good men to come to the aid of the Christmas party

Posted in Uncategorized

Santa stared with scarcely-concealed loathing at the young barrister elf across the desk from him in the Tribunal room.  Sharp suit, shiny shoes and a knot in his nasty nylon tie almost as big as his head.  David Beckham had a lot to answer for, Santa thought grimly.

“Yes, Mr, er, Claus?”  The Employment Judge’s prompting interrupted his thoughts.  Yes what?  His mind blank in an instant, Santa scrabbled in vain for the question he had been asked.  God, it was hot in here.  The relentless probing of the elfin representative was bad enough, but he did think suddenly that turning up to Tribunal fully red-suited and booted, fur trim, the works, had perhaps been a mistake.  The hope that surely no-one could dislike Father Christmas had already withered under the baleful gaze of the Tribunal panel, especially after he had tried to enter the room via the chimney and brought down part of the ceiling.  Indeed, they seemed to be having trouble enough just with his name.

“So why was the Christmas party abandoned at the last minute, Mr, er, Claus?” repeated the Judge.  “Why did you wilfully dash the legitimate party expectations of your loyal workforce?”  Something told Santa this was not going well.

Suddenly it all came back to him.  In the run-up to 25th December Santa had received not only the usual millions of Christmas lists, but also around the same number again of fliers from law firms offering free seminars on how to enjoy the Christmas party safely.    Conscious of the smirking ranks of Little Helpers packing the back of the Tribunal room, their eyes boring malevolently into him as he spoke, Santa told the Tribunal of the seminar he had attended.  It had been an eye-opener.  Everything he had assumed the Christmas do was about (drink, sausage rolls, those Frozen girls in Goods Inward) was either inadvisable or actively unlawful.  What would be left was not a party at all in any sense he understood, but just some ghastly Chekhovian wake as MC’d by Voldemort. He had eaten all the canapés he could hold, pocketed all the free pens and left the lawyers’ offices a broken man.

That night, Santa told the Tribunal, he had slept badly, haunted by dreams.  He had done what the lawyers had said, he thought, pointing out in advance some of the particular hazards of the evening.  In hindsight, perhaps identifying the elves in question by name had not been wise, but it had still been well intended.  In his fevered dreams it had all gone so horribly wrong.  The food had been scorned as discriminatory because some of it was not vegetarian, because some of it was vegetarian, because it contained pork, dairy products or non-organic beef and because (Snow White had dropped by with some of her staff) it was on too high a table.  The carol singers had been booed off stage as insufficiently inclusive of other religions.  His karaoke selection of songs with actual tunes was shouted down as only fit for older people. 

As he had tossed and turned fitfully, it had got worse.  Opening a door in search of fresh air he had blundered instead into a cupboard.  There had he found Barbie and Ken, years of suppressed longing finally cast aside, each stripped naked and staring aghast at the other’s lack of genitalia.  Even months later in Tribunal, Barbie’s shrill screams still echoed in his ears.  Fuelled by drink and noise, the Lego crowd had just gone to pieces and those Playmobil chaps had lost their heads altogether.  Outside in the crisp Arctic air two Little Helpers being led away from the wreckage of the sleigh in novelty handcuffs shouted slurred abuse at him for letting them drive while under the influence of too many liqueur chocolates.  It had been a bad night.  No wonder that the very next day he had cancelled the Christmas party, Santa concluded limply.  It was for their own good. 

There was a moment’s silence.  A solitary glass bauble flung from the back of the Tribunal room smashed at his feet.  The barrister elf looked up briefly from its Candy Crush but offered no further questions.  Pausing briefly to tinkle the bells in each others’ hats, the Tribunal panel conferred.  Then the Employment Judge leant forward and Santa flinched, his mouth dry.  This was it.   This is what came of trying to protect the finer feelings of his employees. Wretched little ingrates, the lot of them.   Done his best and now here he was, about to be strung up in red tape, pelted with mince pies and glitter and left to twist in the wind as a lesson to other employers.  After this he would have to go back to the dayshift for the appearance money, being mauled by poisonous little proles in ghastly local shopping centres and trying not to think about Operation Yewtree.  Santa reached into his mental stationery cupboard for some asterisks.  B******s, he thought, b******s to the season of goodwill and everyone in it. 

“Mr, er, Claus, we do find unanimously that you paid far more attention to the lawyers’ transparent attempts to drum up business than is at all proper for the time of year, and therefore that you are totally and utterly guilty of killing the Christmas Spirit.  We also find, for reasons which we are not remotely able to explain, that you are at some stage almost bound to be in breach of the statutory Shared Parental Leave Regulations.  As a result, it is our decision” – the Judge paused to place a black handkerchief on his head and continued – “our decision that you should be taken from here to a place of exec– “.  

Suddenly a loud crack rang in Santa’s ear.  He started, sitting bolt upright, covered in sweat and his heart pounding.  The Tribunal room vanished before him and he was back in his grotto study, slumped in his armchair.  The whole thing had just been a terrible nightmare.  The charred remains of his Christmas tree crackled and popped in the grotto fireplace along with those unwanted One Direction calendars.  It was all over, another Christmas survived.  Santa relaxed, at peace for the first time in months.

A happy Festive Season from all on the Squire Patton Boggs Labour & Employment team.

Church –v- State in Polish pregnancy dismissal claim

Posted in Religious Discrimination, Sex Discrimination, Termination, Unfair Dismissal

In November in Poland the story of a dismissed Religious Studies teacher hit the news. What made this story of interest?   

The Polish State requires schools to run Religious Studies (RS) classes. The teaching syllabus and text books are decided by the Church authorities and RS teachers must be issued a license (missio canonica) by the relevant Bishop. Withdrawal of that licence means loss of the right to teach RS. Further, the Poland-Vatican Concordat specifies that as regards teaching content and religious education RS teachers are subjected to the Church’s rules and regulations, while in all other matters they are subjected to the general law.  It is this division, or rather the consequences of it, which have caused a stir in Polish media, throwing sex discrimination and religious ordinances into direct conflict with each other.   

The employee and mother of two was a primary school RS teacher.  The school employed her, as any other teacher, based on the qualifications she presented (in this case the missio canonica).  It was not a “faith” school.   

The teacher was then reported by the newspapers to have got divorced and to be living with a partner to whom she was not married. She became pregnant by the partner but continued working in the school. After some time that came to be perceived as against the principles of the Catholic religion and as not setting a good example to pupils and their parents.  The Church alleged that parents (and others) were “appalled” by such conduct. For that reason the Church decided to withdraw her teaching licence.    

And this is where the one of the many problems in this case started. As she had lost the qualifications necessary to perform her job, the teacher was dismissed by the school during her pregnancy. Dismissal of a pregnant woman is not generally permissible under Polish law and this rule applies to teachers as well. However, the Teachers’ Act (the legislation regulating the rights and obligations of teachers) specifies that withdrawal of an RS teaching licence constitutes grounds for the dismissal of a teacher at the end of the month when the licence is lost, and the school relied on that.   

Did the employee know the teachings of Catholicism? Yes. Did she walk the talk? Strictly, no. Was she aware of the possible consequences of breaching the “rules”? Most likely, yes. Had she anticipated such a decision? Not really.  Is it right legally or morally that she would lose her job because she became pregnant out of wedlock?  There is the real debate.  

Interestingly enough, the Church (as the Polish media like to think, under their pressure) decided to offer her another job as a school counselor in their Catholic Education Center until the delivery date so that she could still get all the social security benefits related to the pregnancy and maternity. And here surprisingly it seems her pregnancy will not be disturbing, despite that role still involving dealing with pupils in relation to their education.  Whether this is the product of belated embarrassment, worthy charity or rank hypocrisy also remains open for argument.  After all, the role of the RS teacher is to educate children about religion, not to preach it – that is up to the relevant church or synagogue or mosque, etc.  You can’t teach maths if you are not numerate, but you do not need to live the principles of Catholicism (or any other religion) in order to teach them, surely?   

There are certainly other questions one may ask. Who terminated her employment actually? Where does any legal liability lie? Which values should take precedence? Should the Church be influenced by the realities of 21st century life in Poland in its decisions on the licence of an RS teacher on the grounds of her unmarried pregnancy?  Even if there was public resistance to her staying in her job, is that a good reason to withdraw her livelihood?  Could or should the employer – the school – have declined to apply the Teacher’s Act where the teacher’s pregnancy (albeit outside marriage) is the direct cause of the loss of her licence to teach?    

There are, as I say, only limited instances when a pregnant woman may legally be dismissed.  Whether this is one of them remains to be seen, as the employee has filed an unfair dismissal case with the Employment Tribunal and is saying that she is not going to withdraw it despite the alternative employment offer she received.  If this case gets as far as the Tribunal (our bet is a settlement and robust confidentiality wording), it will pose some new and challenging questions for the Poland-Vatican Concordat – in particular, is it right that treatment which would be blatantly unfair and discriminatory at the hands of any other employer is legitimised because it is the Catholic Church which is making the decisions?

Performing at your peak – grounds for compulsory retirement in the UK?

Posted in Age Discrimination, Discrimination, Recent Cases

Imagine trying to justify your compulsory retirement age on the basis that it represented roughly the point where your employees were performing at their best. Impossible, right?  

Not so, said the London Central Employment Tribunal last month in White –v- Ministry of Justice. Hearing the claim of a Circuit Judge that his compulsory retirement at 70 was age discrimination, the Tribunal had to consider whether the obligation to go at that age (clearly discriminatory in its effect) could be justified and so lawful.  The objectives relied upon by the Ministry of Justice in support of the fixed retirement age included “maintaining public confidence in the capacity of the judiciary”.    

Mr White agreed that this was a legitimate objective, but argued that since it would be served equally well by a retirement age of 72 or 75, compulsory retirement at 70 was not justifiable.  As arguments go this was pretty much doomed from the start by the final decision in Seldon http://www.employmentlawworldview.com/age-shall-not-weary-him-seldon-age-discrimination-claim-marches-on/ that any year in a reasonable range would be justifiable, and was put beyond retrieval by statistics showing that some 90% of Judges retired voluntarily before they reached 70 anyway.   Nonetheless, the Tribunal went further, shining a bright light into some of the darker corners of the judicial removal process, and liking what it saw.   

A Circuit Judge can only be removed pre-70 on grounds of misconduct or incapacity due to health, it found.  There is no mechanism for removing him/her on performance grounds falling short of that, not even the ability which an ordinary employer would have to dismiss unfairly an employee who had gone off the boil intellectually in some important but intangible way.  Any attempt to remove Judges on those limited grounds, successful or not, would surely be a gift to those considering appeals against their recent decisions.   

In addition, by reason of a catastrophically unfortunate typographical error in the decision, the Tribunal found that it was very much in the “pubic interestthat Judges should not be perceived by the public as “past it” because of mere antiquity, nor to be still in post while actually being “past it” but declining to acknowledge the fact”.  

So there you have it – 70 is enforceable as a retirement age precisely because at that age the great majority of Judges are still performing at their peak.   

This decision was obviously fact-specific to a large extent but is nonetheless relevant on a broader basis for its reinforcement of the Seldon principle that it will not be discriminatory to pick one from a band of ages which serve your objectives in having a fixed retirement age merely because a later one would do so just as well.

What Does the President’s Executive Order on Immigration Mean for Your Company?

Posted in Immigration

On November 20, 2014, President Obama announced the signing of an executive order that will have significant implications for the country’s immigration system. As a result, employers need to begin to consider how changes in employment eligibility verification and worksite enforcement, immigrant and nonimmigrant visas, and employment-based immigration provisions will impact their businesses. Squire Patton Boggs hosted a webinar panel comprised of policy and legal experts to help employers prepare for the coming changes in immigration law and also explain the inner workings of the implementation of the Executive Order that would be of interest to federal vendors. For a recording of the webinar, please click here.

In a recent development, seventeen states filed a lawsuit on December 3, 2014 in the Federal District Court, Brownsville, Texas, challenging the President’s executive actions and arguing that he violated his constitutional duty to enforce the laws and illegally placed new burdens on state budgets. Attorney General and Governor-Elect, Greg Abbot of Texas filed the suit on behalf of Texas and the states of Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, Mississippi and Maine. The suit seeks declaratory and injunctive relief preventing the implementation of the Deferred Action programs discussed in our recent publication, Executive Immigration Reform and its Effect on Employers.

We will continue to monitor and provide insight into the President’s Executive Order. If you have any questions, need further guidance, or would like to explore ways to affect and influence the rule making process, please reach out to any of our Squire Patton Boggs speakers or your contact.

UK Autumn Budget Statement 2014 – salary sacrifice

Posted in Legislation, Pensions, Tax

Within the detail of the Autumn Statement yesterday, George Osborne said measures would be taken to prevent, “payments of benefits in lieu of salary”. HM Treasury also said that tax relief would be prevented on reimbursed business expenses where they are paid in conjunction with a salary sacrifice scheme.

Not unusually, it is unclear at this stage exactly what this will mean or how it will work. Obviously it will be a very fundamental change if salary sacrifice is prevented completely and it is difficult to see how this would be achieved given that it is essentially a matter of employment law and contracts. One of the Government’s concerns is likely to be that under the new pension freedoms an employee over 55 could sacrifice salary into his pension scheme and then immediately draw it back out from his pension. This would provide large potential tax and NI savings for employees over 55 and their employers and create a corresponding financial hole for the Government. More information on this can be found on the Parliament website. The issue is whether in trying to stop this specific problem the Government will take blunt-instrument steps which affect salary sacrifice more generally.

It is also not yet clear whether we will see draft legislation in the Finance Bill next week which sheds any useful light on what is proposed. Abolishing salary sacrifice would seem to be counter-intuitive given recent measures to increase the level of pensions savings, not to mention a most unlikely vote winner in the lead-up to an election but it is obviously one to watch as it would potentially affect a large number of businesses and individuals.

Please contact me or another member of the Squire Patton Boggs Tax team if you would like any further information in respect of the above.

Interested in issues relating to compensation, benefits or the governance of those issues for executives, directors and other staff? Then to sign up for our Global Insights blog.

Carry On up the Consulate – UK Court of Appeal bottoms out foreseeability rules

Posted in Health & Wellbeing, Recent Cases

If an employee is unfairly treated in the course of an internal investigation, grievance or disciplinary procedure and suffers depression as a result, will the employer be liable?  Only if the depression were a foreseeable result of the unfair treatment, said the Court of Appeal last month in Yapp -v- Foreign & Commonwealth Office.  That is not in any way a new point but in answering that question, Yapp has laid down a number of clear (and for employers, very helpful) principles concerning the foreseeability of psychiatric injury arising from the employer’s mishandling of internal procedures of this sort. 

Mr Yapp was in a senior diplomatic position at the British Embassy in Belize.  He was accused of bullying local Embassy staff and, more significantly, of touching inappropriately (is there an appropriate way?) the backside of a local politician’s wife.  Images of Kenneth Williams and Hattie Jacques in their pomp swim unbidden before you. 

Without any material investigation or indeed prior discussion with him, Mr Yapp was withdrawn immediately from the Belize post on a permanent basis and shipped back to the UK, ringing in his ears the FCO’s promise that if he turned out not to have done it, they would try to find him a similar post elsewhere.  As it turned out, on fuller investigation, the evidence of inappropriate touching was very weak.   The politician’s wife had not complained and reason arose to doubt the word of her husband.  Yapp was therefore acquitted of that charge. 

The allegation of bullying the Embassy’s local staff was found to have more legs to it but (perhaps we have learned little since the fall of the Empire), that was not by itself felt sufficient to prevent him continuing in or returning to a senior diplomatic role.  However, by that point, Mr Yapp had become clinically depressed as a result of his enforced withdrawal from Belize and in fact never returned to high office within the FCO. 

Bearing in mind that his recall from Belize would not have been necessary had the FCO not acted so precipitately, and that the unfair withdrawal had both made him ill and ultimately destroyed his career, the next question was whether the latter was a foreseeable result of the former?   Distress and anger, certainly, but psychiatric illness? 

Back in 2002, the Court of Appeal said in a case called Hatton that “an employer is unusually entitled to assume that the employee can withstand the normal pressures of the job unless [it] knows of some particular problem or vulnerability“.  But is a seriously botched investigation or disciplinary process a “normal pressure of the job”, or something over and above that?  The Court of Appeal provided the answer: “It is a normal characteristic of the employment relationship that employees may be criticised by the employer and sometimes face disciplinary action or other such procedures.  And in an imperfect world it is not uncommon for such criticism or disciplinary process to be flawed to some extent: there will be a spectrum from minor procedural flaws to gross unfairness.  The message of Croft is that it is not usually foreseeable that even disciplinary action which is quite seriously unfair will lead the employee to develop a psychiatric illness unless there are signs of pre-existing vulnerability“. 

So next time you receive a letter threatening a personal injuries claim arising from some allegedly questionable aspect of your conduct of a grievance, disciplinary or investigatory matter, the lessons of Yapp are:

(i)         did your employee show signs of any pre-existing vulnerability – recent time off with psychiatric illness, very poor past reaction to pressured situations at work, etc.?

(ii)        absent that, even a fairly comprehensively mucked-up internal procedure will not make any psychiatric illness foreseeable and so you will not be legally liable for it; and

(iii)       be careful who you talk to at Belize cocktail parties.