Procedure: Interim Relief

When considering the postponement of an interim relief hearing, can counsel’s availability amount to “special circumstances”?

Yes, held the EAT in Lunn v Aston Derby.

Interim relief is obscure. It’s a special remedy that employment tribunals can grant if an ET1 is presented within seven days of dismissal, and the Claimant can prove (at a very swiftly arranged hearing, usually within days) that s/he will probably establish that the dismissal was on grounds of whistleblowing or trade union activities at a full hearing. When interim relief is granted, a ‘continuation of employment’ order is made, meaning they are guaranteed their salary up until the final hearing – even if they ultimately lose.

Mr and Mrs Lunn pursued whistleblowing claims and included applications for interim relief in their ET1s.

The interim relief applications were listed for hearing on a date the Claimants’ direct access barrister could not attend due to prior court commitments. Their barrister requested that the hearing be relisted and provided dates of availability as soon as five days later.

Pursuant to s128(5) Employment Rights Act 1996, the tribunal should not postpone such hearings “except where it is satisfied that special circumstances exist which justify it in doing so”. The tribunal refused the Claimants’ application for postponement on the basis that counsel’s convenience did not amount to special circumstances.

The EAT disagreed and held that, although not usually considered as such, counsel’s availability was a special circumstance in this case as the Claimants were faced with a real difficulty of finding alternative representation at such short notice. The special circumstances did not have to be ‘exceptional’.

The EAT found that the tribunal had fettered its discretion. It went further and found perversity on the basis that there was a lack of prejudice to the Respondents, a very short delay and the interests of justice so overwhelmingly fell in favour of granting the application.

Case Summary by Caroline Jennings.

Caroline is part of the Employment Group at No5 Barristers’ Chambers. 

The A to Z of conducting investigations

Have you been asked to conduct a disciplinary or grievance investigation in the work place?  Read the latest guidance from barrister Naomi Owen below.


ACAS

The first port of call for any investigating officer (“IO”) is the ACAS Code of Practice for both disciplinary and grievance procedures.  The Code sets out the minimum that is expected of an employer conducting such processes, and so is a good starting point and must be heeded.

Be prepared

Like all good boy scouts, the IO needs to have done their homework.  It is important for the IO to read all documentation available, including the employer’s disciplinary/grievance policy and any other policy relevant to the issue (e.g. bullying/harassment, social media etc).  Also, it is always wise to prepare a list of questions for each witness to be interviewed, so that the IO is confident they have covered all areas necessary.

Characters

An IO needs to consider who needs to be interviewed in order to gain the full picture of any specific scenario.  This will need to be kept under review; as and when individuals are interviewed, it may be necessary to reconsider whether the IO needs to speak to anyone else as the matter progresses.

Documents

The IO should ensure that all parties present at the investigation meeting have copies of all the relevant paperwork/documentary evidence.

Evidence

The IO will need to give careful thought to whether they require any further evidence not currently available.  For example, “is there any information from company databases that is needed?”, “what about previous performance appraisal notes?” or “have there been any prior complaints that need to be considered?”.

Fact-finding

This is the purpose of any investigation.  It is not for the IO to decide the guilt of any party, but to consider whether there is a case to answer.  An IO should probe for evidence that both supports and contradicts the allegations, as opposed to just trying to build a case against “the accused”.

Global view

A process will not be fair if an IO reaches a conclusion by “ignoring matters which he ought reasonably to have known and which would have shown that the reason [for dismissal] was insufficient”, as Viscount Dilhorne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314.  The IO should, for example, explore all defences or lines of enquiry proffered by an employee under investigation.  This is however caveated by the requirement that an employer need only do an investigation that is reasonable in all the circumstances: it has been accepted by the Court of Appeal that the British Home Stores Ltd v Burchell [1978] ICR 303 test does indeed apply to investigating defences in the round, but not necessarily each individual defence – see Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94

Honesty (or dishonesty)

In cases where the misconduct of which an employee is accused tips into the category of potentially criminal, dishonest or fraudulent behaviour, then the potential ramifications for that individual should impact the IO’s approach to their task.  As the EAT has said, “a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him” – A v B [2003] IRLR 405.

Independence

An IO needs to be independent.  Although it is perfectly acceptable for the IO to be a manager within the employer, if there is any hint of an allegation that the process is/may be tainted, then consideration could be given to bringing in an external person to act as IO.

Jurisdiction

IOs must be sure to define the scope of your investigation.  For example, sometimes a grievance will arise at the same time, or during, a disciplinary process.  It will be necessary to check the employer’s policy as to their guidelines in such a scenario.  For example, the IO may need to consider suspending a disciplinary process whilst the grievance takes place.

Keep everything

Even if handwritten notes are superseded by typed notes, it is important to keep the handwritten notes for a reasonable period of time just in case there is an issue with the typed version, particularly if they are not agreed by the employee.  This also applies to any “notes to self” or aide memoires produced by an IO.

Length of process

Any unreasonable delay may lead to a finding of unfairness, without the employee needing to demonstrate actual prejudice (although this will help his case) – RSPCA v Cruden [1986] IRLR 83 and A v B [2003] IRLR 405.  Again, it is important to check the timelines established in any applicable policies.

Minutes

It is vital to have an accurate note of all meetings undertaken during an investigation process.  Once witnesses have been interviewed and minutes have been prepared, these should be agreed and signed by all persons present.  This safe-guards against an employee challenging the accuracy of the minutes later down the line.

No5 Chambers

If in doubt, our barristers are able to offer advice, or undertake the role of IO for both disciplinary and grievance processes.

Offences

During the course of an investigation, it can be that the offences with which an employee is charged change.  This needs to be very clearly reflected in any investigation report.  If there is a change to the allegations, then the amended allegations need also to be investigated to a reasonable standard.

Probability

The IO will need to consider what is more likely to have happened.  In other words, the relevant burden of proof is the balance of probabilities.

Report

Having done all the leg-work, the IO will then need to prepare an investigation report.  It is generally wise to attach as appendices all notes and documentary evidence collated during the investigation process.  The report will contain a summary of charges and the IO’s findings.

Suspension

Where an employee has been suspended, the IO may need to be aware of the limitation that this places on the employee in terms of their ability to obtain information from the workplace.  For example, a generic suspension letter will prohibit an employee from talking to colleagues or stepping foot inside the workplace; the IO may therefore need to step in to obtain information/evidence that an employee cannot reach for themselves.

Training

If possible, ensure that your investigating officer has had some training specifically aimed at investigations, particularly where the allegation involves unlawful discrimination.  Again, No5 can help here.

Union representatives

There is no statutory right for employees to be accompanied to an investigation meeting by anyone, however it may be good practice to offer an employee the choice of bringing a colleague or union rep with them to a meeting.  Many disciplinary procedures provide for this.

Victim

In some investigations, there will be an alleged victim.  Although it is necessary to ensure that the process is not onerous on any such person, it is necessary that any defence/evidence from the alleged perpetrator is put to the alleged victim fully and comprehensively, in order that such lines of enquiry do not go unexplored.

Witness box

When conducting an investigation, it can be useful to consider how actions and decisions taken by the IO would be justified at an unfair dismissal hearing, giving evidence in the witness box.  By thinking of the (possible) end-game, it can help focus the mind on the task ahead.

X-reference

It is wise to cross-reference documentary evidence with that given by witnesses to ensure that conflicts are raised with witnesses and can be answered.  The same applies to conflicting evidence between two witnesses.  As above, it is only necessary for the investigation to be reasonable, but if there is a glaring inconsistency in evidence a witness should be given the opportunity to state their case.

Yes-men

IOs should be wary of falling foul of an accusation of paying lip-service to the process or being management’s puppet.  As the old adage goes, “justice must be seen to be done”.  Again, if this is a potential allegation that may be levelled at any internal staff, it may be sensible to appoint external support for the investigatory process.

Zeal

IOs sometimes run the risk of stepping into the role of prosecutor, as opposed to an investigator of fact.  IOs need to be careful to avoid being overzealous; any heavy-handed treatment could be seen as a breach of the implied term of trust and confidence.


Naomi Owen
Barrister
Employment Group
No5 Barristers’ Chambers
No5.com

Sexual Harassment in the Workplace. What does the law actually say?

sexual harassment
The news is currently awash with allegations of sexual harassment and sexual assault in the media and in politics. Commentators make the point that it is endemic and not confined to those sectors, but all places of work.

There is, of course, a wide range of conduct, ranging from inappropriate comments, to inappropriate physical contact, and ultimately to serious sexual assault and rape. Some conduct is one-off, whereas in other cases it is sustained. As an employment barrister, I’ve been involved in cases involving all these types of conduct. Sexual assault is a criminal offence, usually requiring a criminal investigation by the police. But what protections are there for victims from an employment law perspective? What should victims do? How should employers address these issues?

Legal Framework

In the employment law context, the Equality Act 2010 (“EA 2010”) makes it unlawful to sexually harass employees, workers and agency staff. In fact, it covers a wide range of harassment including on the grounds of age, race, sexual orientation and disability. Claims are brought in the Employment Tribunal and the victim of harassment can bring a claim against the employer and the individual named perpetrator.  There are strict time limits, with claims needing to be brought within 3 months of the last act of harassment, and after having contacted ACAS for Early Conciliation.

Under section 26 EA 2010, sexual harassment is defined as conduct related to sex which has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim, taking into account the victim’s perception, all other circumstances of the case, and whether it is reasonable for the conduct to have that effect. So, there is a subjective and objective element to it.

In Richmond Pharmacology v Dhaliwal [2009] IRLR 336, the Employment Appeal Tribunal clarified the law and stated that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue. The EAT observed that, in each context, “harassment” is now specifically defined in a way that focuses on these elements:

a.              unwanted conduct;

b.              having the purpose or effect of either:

i. violating the individual’s dignity; or

ii. creating an adverse environment for the victim;

c.              related to the prohibited grounds (i.e. of sex, race and so on).

What if the victim has engaged in “banter”?

It is quite common for perpetrators to argue that the victim participated in the conduct complained about because they engaged in “banter”. However, the fact that an employee engages in “banter” is not a defence. In the EAT case of Smith v Ideal Shopping Direct Ltd UKEAT/0590/12, the claimant was openly gay and would engage in a certain amount of banter, e.g. referring to himself as ‘Big gay Wayne’.  However, rather more pointed remarks about his homosexuality started to be used by other employees. One highlighted in the case was the reference to him with some regularity as ‘Val’s bitch’ (Val being his line manager). After his dismissal he brought tribunal proceedings for harassment. The tribunal rejected the harassment claim. They accepted that in isolation the words used would be homophobic, but held that this was outweighed by his own participation in the language used generally.  However, the EAT disagreed with the Tribunal on this point, holding that, although, in principle, a person may not be able to object to conduct that they have willingly participated in, there can still be a line to be drawn when the conduct (here language) goes beyond what that individual was agreeing to.

What if the conduct wasn’t directed at the victim?

Provided the other requirements are met, the conduct in question does not even have to be specifically directed at the complainant. In Moonsar v Fiveways Express Transport Ltd [2005] IRLR 9, EAT, the downloading of pornographic images by Ms Moonsar’s male colleagues, who viewed them in her presence, was held to be sufficient to amount to unwanted conduct, as the images were viewed on screens in a room where she worked and she was aware of what was happening, even though it was not directed at her. Therefore, although the “purpose” was not to violate her dignity, the “effect” of it did. This deals with the sort of behaviour sometime described as “locker room banter” where the victim is not specifically targeted.

What should the victim do?

In any case where someone has been harassed it is important that they raise this with the employer. Most reputable employers will have Grievance and Anti-Bullying and Harassment policies to investigate concerns.

The employee should consider speaking to any confidential advice lines. Many employers offer access to such services.

In cases involving sexual assault, they need to consider reporting matters to the Police.

Ultimately, they may wish to claim compensation in the Employment Tribunal. To do so, they must bring their claim within 3 months of the last act of harassment, and contact ACAS for Early Conciliation.

What should the employer do?

The first consideration should be to ensure that policies are up-to-date and fit for purpose to investigate concerns and deal with cases where harassment is found.

Employers should train their staff on equal opportunities, and in particular what constitutes unacceptable behaviour in the workplace.

Employers should also consider whether someone from the workforce should be appointed (perhaps with an HR background) as a “Anti-Harassment Guardian”, as a person that staff can go to if they have concerns or wish to raise a complaint.

Finally, employers need to investigate concerns and take appropriate action. There is no room for harassment in the workplace. Employers need to take proactive steps to ensure that any such behaviour is no longer tolerated

Mugni Islam-Choudhury
Barrister (specialising in Employment Law)

No5 Barristers’ Chambers
01.11.17