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Employment Law Worldview

A Busy Year at the National Labor Relations Board:  NLRB General Counsel Provides Charge, Petition, and Litigation Statistics for FY2014

Posted in NLRB, Union

At the March 4, 2015 session of the American Bar Association’s mid-winter meeting of the Committee on Development of the Law under the NLRA, National Labor Relations Board General Counsel Richard Griffin disclosed detailed statistics regarding his office’s handling of unfair labor practice charge, representation case, and litigation matters during the Board’s 2014 fiscal year:

Unfair Labor Practice Charge Activity

    • 20,514 charges filed
    • 35.2% merit factor (64.8% of charges filed were dismissed or withdrawn)
    • Of those charges determined to have merit, 93.4% were settled (about the same as 2013’s settlement rate of 93.2%)
    • 1,216 complaints issued
    • 85% litigation success rate for the General Counsel before NLRB Administrative Law Judges

Representation Case Activity

    • 2,677 petitions filed  (slightly up from 2013)
    • 1,687 elections conducted (first-time and rerun)

Litigation Activity

    • NLRB regions submitted 144 requests to the General Counsel for Section 10(j) injunction authorization
    • General Counsel submitted 38 of these 144 requests to the NLRB for approval
    • Approval granted by the NLRB in 37 of the 38 requests
    • 11 Section 10(j) cases litigated – 9 complete wins for the General Counsel; 2 partial wins
    • 5 pending Section 10(j) injunction cases at the end of FY2014 – since the end of the fiscal year, these were resolved with 3 wins for the GC, 1 loss, and 1 settlement
    • Noel Canning cases:  since the case was decided by the Supreme Court in June 2014, 103 cases were returned to the Board from the courts of appeals for reconsideration and issuance of a new decision.  The Board has re-decided 70 of these cases, and 4 were settled, leaving 29 cases still to be decided.

A busy year, indeed, and 2015 looks like it will be more of the same, if not even busier, with the new election rules slated to go into effect in April, a number of high profile decisions to be issued (such as Browning-Ferris Industries), and important cases going to hearing (i.e., the complaints brought against McDonald’s and certain of its franchisees).

Fishy goings-on at the aquarium – Japanese Court Upholds Penalties for Sexual Harassment

Posted in Discrimination, Harassment, Recent Cases

Last Thursday, the Japanese Supreme Court issued its ruling in the Osaka Aquarium sexual harassment case. The ruling made news across Japan and is particularly noteworthy on two points: that it upheld a relatively severe punishment (suspension and demotion) without a formal warning process in advance, and that it recognized purely verbal sexual harassment as a punishable offence.

Osaka Aquarium is run by a government-owned corporation. A majority of its staff and visitors are female, and the company took numerous measures to warn its employees off harassment in the workplace. It defined sexual harassment in its work rules to include “sexual jokes, teasing or questioning,” “other sexual speech or conduct that causes discomfort to others,” “unnecessary bodily contact” and “inhibiting other employees’ desire to work through sexual speech or conduct.” It further established a sexual harassment resolution procedure that considered the time, place, manner and extent of the behavior, as well as the “power relationship” (respective seniorities) of the parties involved, in determining appropriate penalties for offenders.

Two middle managers in the sales and service teams engaged in a string of sexual conversations over the course of a year, primarily directed at a younger female temporary employee. One of the managers, dubbed X1 by the Court, repeatedly engaged in inappropriate conversation with the female employee, A, while she was working alone in the Aquarium’s cash room, including topics such as his extramarital relations, his mistress’s relationship with her husband and his own sexual interest in a female visitor to the Aquarium. The other manager, unimaginatively called X2, repeatedly conversed with A about her age and her “need” to get married soon, and suggested that she take on a “night job” (by implication, prostitution) to supplement her income.

A left the Aquarium at the end of December 2011, citing harassment among other reasons for her resignation. It then conducted an internal review and decided in February 2012 to suspend the two managers without pay (shukkin teishi) for thirty days and ten days respectively. As a result of the suspension, they were demoted within the employer and had their monthly pay cut.

The managers took legal action against the employer to invalidate their suspensions and restore their pay to its previous level. They argued that the female employee had not clearly objected to the conduct and that they did not have adequate warning of the company’s policies on harassment.

In Japan, disciplinary action against employees must be in compliance with laid-down company rules, and even then can be subject to a form of equitable scrutiny by a court that places a major burden on the employer to prove the appropriateness of the punishment. Disciplinary dismissals are generally only upheld in cases of extreme misconduct, such as criminal activity. Suspension without pay and demotion are usually also reserved for extreme or repeated violations of the rules of employment; lesser violations are rarely dealt with by anything harsher than a stern warning in the first instance. Until this case, physical forms of sexual harassment were sometimes considered adequate grounds for stricter punishment, but verbal forms generally were not.

The lower courts had disagreed on the proper outcome of the case. At trial, the Osaka District Court upheld the suspension and demotion, citing the relative positions of the individuals involved and the fact that the managers had had adequate opportunities to defend themselves in the internal process. On appeal, the Osaka High Court sided with the managers, ruling that while the punishment was clearly implemented in compliance with company rules, it was still too extreme in light of the conduct in question, and thus constituted an “abuse of rights” by the employer.

The Supreme Court rejected the High Court’s view of the extremity of the conduct. It characterized X1’s statements about his extramarital affairs as “extremely lewd and dirty,” and X2’s statements about A’s age and marital status as “derogatory” and “vulgar,” concluding that both managers’ conduct was “extremely inappropriate,” “particularly harmful to the working environment” and “would lower employees’ desire to work and inhibit the demonstration of their abilities.” It characterized the suspension and demotion penalties as reasonable given these circumstances, and pointed out that the managers had knowledge of the Aquarium’s policies regarding sexual harassment.

The Supreme Court’s ruling may signal that Japanese jurisprudence is gradually taking a harder line on harassment in the workplace, but the procedural history of the case – almost two years of litigation with different outcomes at different levels – underscores the need for employers to be cautious. It should be noted that while the ruling provides an instructive precedent that will likely be followed in future cases, it does not have the force of law, and judges in other cases still have significant discretion in deciding whether or not a disciplinary action is appropriate.

The case also highlights the need for Japanese employers to train their management and to take care in drafting and enforcing their company rules. While the case opens up the potential to implement meaningful penalties for verbal harassment in the workplace, there is still a burden on employers to make their policies clear (in particular, given the managers’ defence, that overt objection by the victim is not a pre-requisite of unlawful harassment) and to follow the letter of their policies.

Kenichiro Kawada contributed to this post http://www.squirepattonboggs.com/professionals/k/kawada-kenichiro.

Amended D.C. Wage Theft Prevention Act Now In Effect

Posted in Legislation, Wage and Hour

Starting February 26, 2015, employers operating in the District of Columbia have a new regulation to contend with—the D.C. Amended Wage Theft Prevention Act (A20-426) (the “Act”).  The Act, which amends several existing D.C. wage and hour laws, including the Living Wage Act, Minimum Wage Revision Act, Wage Payment and Wage Collection Law, and Accrued Sick and Safe Leave Act, was originally signed into law last September (original here) [PDF].  However, on December 29, 2014, the mayor signed emergency amendments [PDF], which included clarifications and technical corrections. Then on February 3, the D.C. Council passed a resolution [PDF] and temporary amendments [PDF] to address several unintended consequences of the Act.

Because of the significant potential penalties and costs of non-compliance (employers are now subject to penalties for negligence, not just willful infractions), employers should act quickly to ensure they comply with the new law.  Below are three of the main provisions employers should be aware of:

1.  Expanded recordkeeping requirements

Previously, the Minimum Wage Revision Act required covered employers to keep records regarding, inter alia, the “hours worked” each day and each week by covered employees.  Under the Act, employers must now keep records of “precise time worked” by non-exempt employees. The Act does not specify what records would be sufficient to show precise time worked.  Additionally, the Act now requires employers to keep pay‑related records for three years, or longer if the federal government has a longer prevailing standard that is identified in regulations issued pursuant to the Act.

2.  Pay notice and posting requirements

Under the Act, employers are required to give D.C.-based employees written notice of their wages.  Notices must be provided to current employees within 90 days of the Act’s effective date (i.e., May 27, 2015), to new hires at the time of hiring (effective IMMEDIATELY), and to any employees at the time any information in the notice changes.  The notice must include: (1) the employer’s name, address, and telephone number; (2) the employee’s regular payday, rate of pay and basis of that rate; and (3) the employee’s overtime rate of pay and exemptions from overtime pay, as well as other information that the mayor may require.  Information required for temporary staffing agencies is slightly different.  Employers must retain a copy of the notice, signed and dated by the employer and the employee acknowledging receipt.  Template notices are available on the D.C. Department of Employment Services website).

Additionally, a summary of the Act will be made available within 60 days; once the summary is available employers must post it pursuant to D.C. Code section 32-1009.

3.  Expanded obligations with respect to contractors and temporary staffing firms

General contractors/subcontractors and temporary staffing agencies/client employers will now be jointly and severally liable for violations of the Wage Payment and Collection Law, the Living Wage Act, the Minimum Wage Revision Act and the Accrued Sick and Safe Leave Act, unless a contract between them that is already in effect provides otherwise.

In addition to these provisions, the Act expands available enforcement mechanisms and penalties and expands the prohibitions on retaliation against those claiming violations of the Act.  Employers should thus familiarize themselves with the Act (including the various amendments) and make sure they are in compliance.

 

Employee gets red card in Leeds United dismissal claim

Posted in Employment Contracts, Misconduct

Any skeletons in your workplace cupboards? Never too late to dust them down, it appears from the High Court’s decision in Williams -v- Leeds United Football Club earlier this month.

Mr Williams had a 12 month notice entitlement from Leeds and a basic salary of around £200,000.  On 23 July 2013 he was given notice by reason of redundancy, but just a week later he was then dismissed summarily without the balance of his notice period or any payment in lieu.  In the course of his resulting wrongful dismissal claim it became apparent that the Club was desperate to find ways of dismissing a number of staff (including Williams) without paying them notice if at all possible.  While Williams was being made redundant, and unknown to him, private investigators were already combing through his emails and expenses looking for something, anything, to hang him with.

Just a week into his notice period, the PIs struck what they thought was gold – a small number of pornographic emails sent from his LeedsUnited.com address on one day over 5 years earlier to friends at other clubs and a junior female employee within Leeds United itself.

Was that enough to deny Williams his notice entitlement? Surely not – the emails had been sent over 5 years ago, there was no evidence of any others of the same sort being sent before or since and none of the recipients (including the junior female) had made any complaint about their content.  Surely a summary dismissal 5 years later was excessive?

Had this been an unfair dismissal claim, possibly so.  Such conduct could certainly have justified a dismissal at the time but in the absence of any recurrence or fall-out from it in the intervening years, it might have been hard to dismiss Williams fairly.  However, the rules of contract law are different.  If it can be shown that misconduct pre-termination was repudiatory in nature (i.e. was “likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”) then it can be relied upon by the employer even if it is only discovered afterwards.  It can then be used to deny the employee pay in lieu of the balance of a notice period already given.  Mr Williams lost his claim.

The striking thing about the High Court’s decision here is that in looking at the question of whether the conduct was repudiatory, it paid no heed to the passage of time and to the variety of unpleasant consequences which, although they could have arisen, actually had not.  There had been no harassment claim, no adverse PR, no aggravation of sponsors, etc.  None of this mattered, said the High Court – it had been gross misconduct back in 2008 when the emails were sent, and so still was.  It is possible to conclude that any flexibility open to the High Court in reaching this conclusion was lost to Williams the moment he suggested in evidence that the junior female employee would take pictures of naked women  showering and simulating sex with each other as “a giggle”.  If defending the indefensible were an art form, that was definitely one for the Tate.

It was also held irrelevant that the Club had been actively searching for grounds to do Williams out of his notice entitlement. Again, this might potentially be relevant to an unfair dismissal claim but in the black and white world of contract, you are either guilty of repudiatory conduct or you are not.  How and why your employer comes across the evidence is immaterial if you were foolish enough to create it in the first place.

With apologies for how distasteful this no doubt sounds, therefore, if an employer is facing an extended notice pay claim and wants to get out of it, it could do worse than have a run through the employee’s emails and expenses.  Something you find there could save you a fortune, as here.  There is however a prospective downside – if it becomes known that you do this, then you can expect your employees to trust you as little as you clearly trust them.  Among the sort of senior executives who have the lengthy notice periods which would be worth the expense of the enquiry, this could be an employment relations disaster.

Freeman’s Background Check Win Has Little to Do with Background Checks, Everything to Do with EEOC Experts.

Posted in Equal treatment, Equality & Diversity

iStock_000015244698_MediumThe EEOC has pushed hard in recent years to curb employer use of background checks in hiring decisions (see our blog post here).  In 2009, the EEOC filed suit against Freeman, a national provider of integrated services, alleging that Freeman relied on credit and criminal background checks that caused a disparate impact on black and male job applicants.  A federal judge in Maryland granted summary judgment to Freeman, slamming the EEOC’s questionable use of shoddy expert reports (referring to the reports, with particular focus on expert Kevin Murphy’s work, as “unreliable,” “rife with analytical errors,” “mind-boggling,” and “laughable,”).  Within the thirty-page Memorandum Opinion, Judge Titus dedicated nearly the entire legal analysis section to criticizing the EEOC’s expert reports and data.

On February 20, 2015, the Fourth Circuit affirmed Judge Titus’ order of summary judgment.  The court called out Murphy’s expert report for its “alarming number of errors,” “analytical fallacies,” and “utterly unreliable analysis.”  Judge Agee wrote a separate concurring opinion with the apparent purpose of telling the EEOC he wasn’t mad, just disappointed (in the EEOC’s “litigation conduct”).  As with the district court, the Fourth Circuit focused almost exclusively on the shortcomings of Murphy’s expert report, and in doing so avoided the need to address the legal boundaries of permissible background checks.  Judge Agee explicitly referenced a recent Sixth Circuit case where the EEOC relied on Murphy and lost, noting that the expert is “no stranger to having courts reject his work for improper sampling.”  (EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749 (6th Cir. 2014))

Although Freeman and Kaplan provide employers with enough sound bites to discredit any future Murphy report, these cases hardly illustrate courts’ positions on whether background checks can cause a disparate impact.  Although the EEOC might see these losses as reason to focus on different employment practices, it could just as easily hire a different expert and keep pushing.  Employers should therefore continue to exercise caution when using background checks in the application process, avoiding blanket consideration for all positions.

EEOC Internal Memo Reveals LGBT Discrimination Remains Enforcement Priority

Posted in Discrimination, Equal treatment, Equality & Diversity, Harassment, Retaliation, Sex Discrimination

On February 3, 2015, the EEOC’s Director of the Office of Field Programs issued a memorandum to the agency’s district directors regarding the handling of LGBT-related discrimination claims. Although Title VII does not explicitly prohibit discrimination on the basis of an employee’s identification as gay, lesbian, bisexual or transgender, the memorandum states that the EEOC will accept charges filed alleging discrimination on these bases and consider whether they should be investigated as claims of sex discrimination.  This is consistent with EEOC’s 2012 Strategic Enforcement Plan, which designated “coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions” as a significant enforcement priority.

With respect to complaints of discrimination on the basis of transgendered status or gender-identity related discrimination, the memo instructs EEOC field offices to treat such complaints as potential claims of sex discrimination and investigate accordingly.  The memo outlines a number of federal decisions where disparage treatment of transgender individuals who did not conform to gender stereotypes was addressed as potential sex discrimination under Title VII and in which the EEOC has filed supporting amicus briefs.

In addition, the memo states that individuals who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges also should be investigated as potential claims of sex discrimination.  The EEOC has filed an amicus brief in one Seventh Circuit case, setting forth its position that individual discrimination based on an individual’s sexual orientation can be presumed to be grounded in sex-based norms, preferences, expectations, or stereotypes and thus violate Title VII’s prohibition on discrimination based on sex.  It also opined in a Fifth Circuit case its view that the use of epithets associated with sexual orientation constitutes evidence of discrimination on the basis of sex.  The memo further sets forth the EEOC’s position that employee complaints about sexual orientation discrimination can constitute protected activity for purposes of a retaliation claim, if the employee has an objectively reasonable (even if ultimately erroneous) belief that Title VII prohibits sexual orientation discrimination.

In addition to reiterating the agency’s stance on LGBT discrimination claims, the memo asks district directors to report all charges raising such issues to the EEOC’s headquarters for purposes of tracking claim processing and outcomes.

Employers should be mindful when handling internal complaints of sexual orientation or gender identity discrimination or harassment, and when responding to charges of discrimination, that the EEOC views such claims as potential sex discrimination issues and respond accordingly, rather than dismissing them as not covered by Title VII.  Employers should also be aware of state and municipal ordinances which may explicitly prevent sexual orientation and/or gender identity discrimination and update their policies and training accordingly.

Spouses of Certain H-1B Visa Holders Soon to Join the Ranks of the Lawfully Employable

Posted in Immigration

After a four year delay, the US Department of Homeland Security (DHS) has finally published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment based lawful permanent resident (LPR) status. This benefit will not pass down to children of H-1B holders and will be limited to those H-4 dependents married to H-1B visa holders that are:

  • Principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140), or
  • Have been granted H-1B status in the United States under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act .

The rule was published on February 25, 2015 and takes effect on May 26, 2015. For details please see our client alert.

On a related note, we remind employers that H-1B season is upon us. On Wednesday, April 1, 2015, USCIS will begin accepting filings of H-1B visa petitions for employment in the fiscal year 2016 (FY 2016). Employers should now be preparing H-1B petitions for new and existing employees eligible for a first-time H-1B visa to begin employment on or after October 1, 2015. The demand for FY 2016 H-1B visas is expected to exceed the supply and USCIS will likely conduct a “lottery” to randomly select petitions for adjudication. For more information, see our previously issued client alert.

FMLA: A Spouse Is A Spouse, No Matter Their Sex

Posted in FMLA, Leave

On February 25, 2015, the U.S. Department of Labor’s Wage and Hour Division issued a Final Rule revising the definition of spouse under the Family and Medical Leave Act (FMLA) so that eligible employees in legal same-sex marriages may take FMLA leave to care for their spouse or family member. Effective March 27, 2015, the term spouse will include a same-sex spouse, even if an employee is living in a state that doesn’t recognize same-sex marriages.

The FMLA allows eligible workers of covered employers to take 12 months of unpaid leave every 12 months to care for a newborn or for a spouse, child or parent with a serious health condition, among other things. The law covers private sector employers with 50 or more workers. Until now, spouse was defined with respect to an employee’s state of residence, which meant that an employee living in a state that does not recognize same-sex marriage would be treated differently than an employee living in a state that does recognize same-sex marriage. Under the Final Rule, spouse is defined with respect to the law of the “place of celebration”, or where the marriage was entered into. Thus, all legally married couples, whether opposite-sex or same-sex, will have consistent FMLA rights, no matter where they live.
The Final Rule was revised in light of the Supreme Court’s decision in United States v. Windsor, 133 S.Ct. 2675 (2013), that the portion of the Defense of Marriage Act that interpreted “spouse” to be limited to opposite-sex spouses was unconstitutional.

Companies should review their FMLA policies, procedures and related documents to ensure they are consistent with the Final Rule, and should educate those responsible for the administration and supervision of FMLA leave about the new rule. The Department of Labor’s FAQs regarding the Final Rule are available here.

Sick Leave: Tacoma and Philly Jump On The Bandwagon; Chicago Voters Join In

Posted in Health & Safety, Health & Wellbeing, Leave, Legislation, Sickness

Maybe we should start calling it ‘chic’ leave, since it’s all the rage right now. Tacoma and Philadelphia are the latest municipalities to require private employers to provide employees with sick leave. They join three states (California, Connecticut and Massachusetts) and fifteen other municipalities (D.C.; Oakland and San Francisco, CA; East Orange, Irvington, Jersey City, Montclair, Newark, Passaic, Paterson and Trenton, NJ; New York, NY; Eugene and Portland, OR; and Seattle, WA) that have passed sick leave laws. Dozens of other states and municipalities are looking to follow suit, as legislators across the country heed President Obama’s call to require employers to provide paid sick leave to employees. Chicago might be next in line—voters yesterday overwhelmingly approved a non-binding sick leave referendum to require employers there to provide employees with paid leave in the event of a personal or family illness, an incident of domestic or sexual violence, or a school or building closure due to a public health emergency.

As we have reported previously, in his State of the Union address last month, President Obama urged Congress to pass legislation providing paid sick leave for all employees. While some municipalities, such as San Francisco, Seattle, Washington, D.C. and Connecticut, have had paid sick leave laws on the books for years, 2014 saw a huge uptick in the number of sick leave laws that were passed, either by voters or by legislators. Companies operating in multiple jurisdictions are left scrambling to stay abreast of the new laws and implement the required changes, a task made more difficult by the fact that the laws can vary significantly between jurisdictions.

For example, the Philadelphia sick leave law requires private employers of ten or more employees to provide paid sick leave to all employees who work in Philadelphia for at least 40 hours in a year, while employers of nine or fewer employees must provide unpaid sick leave to employees meeting the 40 hour requirement. Notably, the Philadelphia law specifies that it does not extend to independent contractors, seasonal workers, adjunct professors, employees hired for a term of less than six months, interns or pool employees. Under the law, employees may accrue (and use) up to 40 hours of sick leave per year. The law also notes that any sick leave provided is in addition to any unpaid leave available under Philadelphia Code section 9-3200, which requires employers to give leave to employees who are victims of domestic violence, sexual assault or stalking. The Philadelphia sick leave law goes into effect on May 13, 2015.

The Tacoma law, on the other hand, requires that employers provide paid sick leave to all employees who work in the city of Tacoma for at least 80 hours in a year, but employees may only accrue (and use) up to 24 hours of paid sick leave per year. The Tacoma law is also the only sick leave law that allows employees to use their accrued paid sick leave for bereavement purposes. The Tacoma law goes into effect on February 1, 2016.

While employers have almost a year to prepare for the Tacoma law to go into effect, many of the laws passed by voters last fall have either already gone into effect, or will become effective shortly, so make sure your company is ready. Oakland’s law goes into effect on March 2, while Montclair and Trenton’s laws go into effect on March 5. They are followed by Philadelphia (May 13), then California, Massachusetts and Eugene (July 1, although the Eugene law’s effective date may be delayed if the state of Oregon passes a statewide sick leave measure).

Sick leave legislation is currently pending in about a dozen states and Montgomery County, MD. On the other side of the fence, Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Tennessee and Wisconsin have all passed laws that pre-empt any city’s ability to pass a local paid sick leave law, although state-wide legislation is still a possibility (as in Arizona).

Employer not driven to investigate all defences in UK disciplinary process

Posted in Misconduct, Recent Cases, Unfair Dismissal

Some reassuring guidance for employers on the conduct of disciplinary investigations from the Court of Appeal last week – not new law but a clear and helpful analysis of just how far you have to go to investigate an employee’s defence.

Mr Shrestha was employed by Genesis Housing Association as a support worker, a role which required driving around East London to see clients at their homes.  He used his own car and was entitled to a set figure by way of expenses for each mile driven.  An audit in 2011 revealed that Mr Shrestha’s claimed mileage between the office and certain addresses visited (in fact all the addresses visited) was generally nearly double the distance suggested by the AA or RAC online route-planners.

Disciplinary proceedings were convened at which Mr Shrestha sought gamely but unsuccessfully to explain the discrepancies by reference to difficulties parking at some addresses, one-way road systems and diversions caused by road-works.  He pursued his unfair dismissal claim as far as the Court of Appeal, making a number of criticisms of the investigation carried out by the Association.  In particular, he said that the Association’s disciplinary officer should have:-

(i)         driven the same journeys himself to understand his traffic issues;

(ii)        checked with the local council to see where there had been road works and diversions months earlier when the offending expenses had been claimed; and

(iii)       looked at each individual trip to determine the availability of public parking nearby.

The Association had done none of these things, taking its stated belief in Mr Shrestha’s dishonesty merely from the invariable and material excess of miles claimed over the route-finder distances for the same journeys.  This, said Mr Shrestha, failed the long-established unfair dismissal requirement that belief in an employee’s culpability should be based on “as much investigation into the matter as was reasonable in all the circumstances of the case”.

The Association said it had been reasonable.  After all:-

(i)         the dismissing officer could not realistically recreate the effect of road works and diversions which had long since been removed;

(ii)        missing a turn-off due to roadworks would add very little to the journey length (the only recorded exception to this being the A38 through Birmingham where even a moment’s inattention will see you flung helplessly out to Bromsgrove in no time at all);

(iii)       the extra distance claimed to arise from parking difficulties was such that if Mr Shrestha were telling the truth, he had regularly ended up parked further from the client’s address than when he had set out from the office; and

(iv)       the sheer number and regularity of over-claims ruled out any chance of their all being inadvertent or the product of random traffic issues.

The Court confirmed that Employment Tribunals should apply the “range of reasonable responses” test, meaning in practical terms that employers need not go down every investigative alley proposed by the employee where:-

(i)         to do so would add little or nothing to the existing weight of evidence;

(ii)        it would make no difference to the employee’s overall position even if he were telling the truth in that particular respect; or

(iii)       there are material practical difficulties in a meaningful investigation, e.g. due to the passage of time, the departure of prospective internal witnesses or the proposed involvement of external third parties.   Here the investigation may not have been totally comprehensive but it was nonetheless reasonable.  There was very little which the Association could have done by way of further investigation.  In addition, even if on some occasions Mr Shrestha had been telling the truth, it was beyond implausible that he was doing so every time.

A decent contemporaneous note of why the employer chose not to pursue any given avenue of enquiry will also stand it in very good stead.