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Looking into workplace investigations, Part 6 – preparing the statutory defence (UK)

Once you have done all the scoping out and refining of allegations you can before starting your investigation, there will come the point where you have to raise the allegations made with the people they are made against. If the allegations are false, those people will be very angry.  If they are true, they will … Continue Reading

Looking into workplace investigations, part 4 – respecting the rights of bullies and harrassers (UK)

When drawing up your preliminary note of what you need to know as the product of your investigation, remember that the people being investigated have rights too.  Some we will come to later in this series, including confidentiality and a fair process, but the first and most fundamental part of a fair “trial” is knowing … Continue Reading

Looking into workplace investigations, Part 1 – what are you talking about? (UK)

Today we start a new series of posts tackling the vexed area of workplace investigations.  We will look at the background law, of which there is very little, and at best practice guidance, of which there is more than can possibly all be useful.  We will offer some examples of investigations done badly and consider … Continue Reading

Grievances and punishment – Is it enough to succeed, or must others fail? (UK)

If you look for the statutory source of the ordinary right to bring a workplace grievance, you may be gone some time.  It arose initially as a by-product of the implied duty of trust and confidence, and formally bubbled to the surface in WA Gould (Pearmak) Limited – v – McConnell in 1995.  There the … Continue Reading

“There are only two ways of telling the complete truth – anonymously and posthumously” (UK)

That was according to a US economist, Thomas Sowell, but it also came up at a recent webinar we did on whistle-blowing and grievance investigations.  We were talking about limits on the employer’s ability to use evidence from witnesses whose identities would not be disclosed to the person accused.  The short point was that to … Continue Reading

Dancing to the EU’s tune – why its Whistleblowing Directive may still affect you (UK)

The 27 remaining EU member states have until 17 December this year in which to introduce domestic legislation implementing the Whistleblowing Directive from 2019.  With scarcely four months to go, how are things going? Very slowly in most cases, it seems.  No doubt Covid has taken parliamentary time and resource away from this issue across the … Continue Reading

Whistleblowing webinar questions, Part 2 – interim relief (UK)

In our webinar last week we touched on the existence of a largely unique remedy for whistleblowing dismissals, the concept of interim relief, more recently and lucidly known as a contract continuation order (“CCO”).  Time did not permit a full rehearsal of the ins and outs of this potentially devastating employee tool, so here is … Continue Reading

2020’s parting gift to UK employers – you really shouldn’t have

It is easy to dismiss some EAT decisions as a storm in a teacup, legally-speaking, all very traumatic for those bobbing about in them, but of little significance to the wider world of employment law or practice. Steer – v – Stormsure Limited earlier this month is not one of those decisions. It has the … Continue Reading

Post-lockdown working, Part 4 – whistleblowing for beginners (UK)

On top of the flexible working rules (see Parts 1-3), another piece of existing law likely to get a pandemic-related dusting-off in the months to come is our old friend whistleblowing. If you face what is otherwise a fairly clear redundancy situation because Covid-19 has gutted your employer’s market, what better way of upping the … Continue Reading

Careless talk, costs, lies: EAT upholds £170,000 costs award (UK)

It’s all about the numbers in Brooks -v- Nottingham University Hospitals NHS Trust, a new case on when an Employment Tribunal can order costs against an unsuccessful participant – 18 alleged protected disclosures, 40 detriments, a 27-day hearing, a witness statement of 214 pages and over a thousand paragraphs and a hearing bundle of well … Continue Reading

Supreme Court Narrows Scope of Dodd-Frank Whistleblower Protection (US)

In a decision issued on February 21, 2018, the United States Supreme Court substantially narrowed the class of employees who may claim whistleblower protection under the anti-retaliation provisions of the Dodd-Frank Act. The Sarbanes-Oxley Act of 2002 (“SOX”) was passed to protect investors from the possibility of fraudulent accounting activities by corporations. In 2010, Congress … Continue Reading

The form labor agreement that’s making headlines in Japan

Last week, Japanese newspapers reported that a national medical research center in the suburbs of Osaka had entered into a so-called “36 agreement” with its doctors and nurses in 2012, allowing these employees to work up to 300 hours of overtime per month and up to 2,070 hours of overtime per year. (To be clear, … Continue Reading

Staying in tune with whistleblowing law – just what is “the public interest”?

Back in 2015 we reported on the Employment Appeal Tribunal’s decision in Chestertons, a ruling which struck fear into the hearts of employers everywhere by the ease with which it suggested that employees could bring their personal complaints into the whistleblowing arena just by referring to other people who might be similarly affected. In brief, … Continue Reading

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, … Continue Reading

Ninth Circuit Expands Reach of Dodd-Frank Anti-Retaliation Protections

Adding to an existing split among the federal appeals courts, the US Court of Appeals for the Ninth Circuit ruled on March 8, 2017 that employees who make internal reports about suspected violations of the federal securities laws and other anti-fraud statutes are covered by the “whistleblower” protections of the Dodd-Frank Act (Dodd-Frank), even if … Continue Reading
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