Category Archives: Insight Article

It is advisable, in any redundancy consultation, for an employer to make a reasonable search for suitable alternative employment, which employees at risk of redundancy could perform to avoid being made redundant.

Where alternative employment is offered, both the employer and the employee benefit from a trial period to assess the suitability of that role. Under the Employment Rights Act, the trial period starts when the employee’s employment under their existing contract ends and lasts for a period of four weeks.

In the recent case of East London NHS Foundation Trust v Mr David O’Connor, Mr O’Connor worked for the NHS. In 2017 he was made aware that he was at risk of redundancy. He was told that due to a reorganisation, his current role would be “deleted” on 3 July 2017 and he began a trial for a different role on that date.

The parties subsequently disagreed about whether this role was suitable and Mr O’Connor pursued a grievance which was unsuccessful. The NHS again offered Mr O’Connor the alternative role which he declined, and he was therefore dismissed in December 2017.

In dismissing Mr O’Connor, the NHS refused to make a redundancy payment to him, as it argued that the trial period had ended on 9 August 2017.

One of the first issues the Employment Tribunal had to consider was whether Mr O’Connor had been dismissed on 3 July 2017, prior to starting the trial of his new role. They concluded that he had not and, therefore, 3 July was not the start date of his trial period.

In a scenario such as this, legislation provides that an employee shall be taken to be dismissed by his employer if, amongst other things, the employer gives notice to the employee to terminate his existing contract of employment.

Whilst the NHS had informed Mr O’Connor that he was at risk of redundancy and made him aware that his role was being “deleted”, it did not, in law, constitute a notice of dismissal.

An employer must communicate to an employee that their employment is terminating and whilst Mr O’Connor knew that his then role was being “deleted”, the Employment Tribunal held that it was ambiguous as to whether Mr O’Connor would consequently know that his employment contract was being terminated.

Employers need to have a sound working knowledge of the redundancy process and the recommended practices surrounding it, so as not to fall foul of procedure. Employers that do not carry out a full and fair redundancy process could face claims for unfair dismissal.

For advice and information on any redundancy process, Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.

In the case of Herbai v Hungary, an HR manager, Mr Herbai, was dismissed following his two blog posts on HR strategy and tax rates. In his blog, Mr Herbai described himself as an HR expert in management at a large bank. When this came to his employer’s attention, he was dismissed on the grounds that his conduct had damaged the bank’s economic interests and breached its confidentiality standards.

The Hungarian Supreme Court upheld the bank’s decision to dismiss Mr Herbai on the grounds that his conduct had endangered the bank’s business interests.

Mr Herbai appealed the decision because the termination of his employment had breached his freedom of expression rights under Article 10 of the Human Rights Act.

Article 10 confirms an individual’s right to freedom of expression and information, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. This right includes the freedom to hold opinions and to receive and impart information and ideas.

The court considered four elements relevant to the restriction of free speech in the context of an employment relationship:

1. The nature of the speech
   The court rejected the bank’s argument that Article 10 did not apply as the published comments were addressed to HR professionals rather than the public.
2. The motives of the author
   The motive was simply to share knowledge with a professional readership.
3. The damage caused by the speech to the employer
   The bank made no attempt to demonstrate how the speech could have adversely affected its interests.
4. The severity of the sanction imposed.
   Clearly, Mr Herbai had suffered a severe penalty, as he had been dismissed without any lesser sanction being considered.

The European Court of Human Rights found that the Hungarian courts had failed to balance an individual’s right to freedom of expression and an employer’s right to protect its legitimate business interests. They, therefore, did not discharge their positive obligations under Article 10.

Employers need to be vigilant so as not to violate employees’ rights in relation to freedom of expression. It is always advisable to take legal advice before dismissing an employee.

If you have a query about the dismissal of an employee or any other employment enquiries, call Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.

The term ‘whistleblowers’ has in the past (rightly or wrongly) brought to mind negative connotations. A whistleblower might have a personal agenda or an axe to grind. They may be deliberately trying to sabotage a company or individual. Or they may revel in causing trouble. For many years, that was the public opinion of a whistleblower, primarily because those who felt compelled to speak out often did so behind a cloak of anonymity. This was because they feared for their future, their job, or, in some extreme cases, their well-being.

Today, we have a much more positive view of whistleblowers. They’re seen as people who are brave enough to speak out against corruption, wrongdoing, or unacceptable working conditions and practices. So, who do you talk to if you’ve reached your limit and need to speak out?

What is a whistleblower?

This is the term used to describe a worker who passes on information concerning certain types of wrongdoing. Such a report is known as making a ‘protected disclosure’. You could be a whistleblower if you see something at work affecting others (including the general public) and decide to speak out. It may be signs of malpractice, a risk or actual damage to the environment, a criminal offence or perhaps dangerous working conditions that could potentially put lives at risk.

Is my job at risk?

The Public Interest Disclosure Act 1998 (PIDA) protects whistleblowers. This means it’s against the law for anyone to be treated unfairly or dismissed because they have blown the whistle.

The law protects those who expose severe issues within the workplace. So no, you should not be concerned about losing your job because you’ve chosen to speak out, but understandably, you may be. If you’re a worker, for example, an employee in the NHS, a police officer or an office worker, your job security is protected, even if you decide to go public with your concerns.

Trainees and interns are also protected, as are agency workers.

The law holds that workers are protected against both victimisation and dismissal where a protected disclosure has been made.

What is a ‘gagging clause’?

A ‘gagging clause’ or confidentiality clause, as it’s more commonly referred to, is an agreement either within a contract of employment or drawn up separately between an employer and an employee. They commonly appear in settlement agreements and other forms of severance agreements. Such clauses prevent employees from disclosing information about the company or people they may work with.

The Employment Rights Act 1996 renders gagging clauses unenforceable if they prevent a worker from making a protected disclosure. Even if one has been signed, a whistleblower can still expose any wrongdoing as long as it’s in the public interest.

Care must be taken not to confuse these with reasonable non-disclosure agreements, which are generally included from the outset within a contract and cover things such as not disclosing to other potential rival companies the details of customers or clients.

Personal grievances

Suppose your issue may be regarded as a personal grievance rather than something that could affect others. In that case, you may not be covered by any legislation that protects whistleblowers. If you feel the issue is more of a personal grievance, you should refer to your employer’s grievance policy.

If you are uncertain, you should seek legal advice.

Who do I tell?

You can go directly to your employer personally or anonymously, but this may not have any real effect. Your employer may have a whistleblowing policy in a staff handbook that you should read before considering your next steps. Such a policy will explain what you should expect and should also direct you to external bodies if you cannot speak to your employer directly. However, regardless of their policy, you can still report your concern to them.

Alternatively, you can go to a ‘prescribed person’. The prescribed person will depend on what you are blowing the whistle on. Remember that once you pass on the information to your employer or your prescribed person, you won’t have any further influence on proceedings. You can find a list of prescribed persons defined by the Department for Business, Energy, and Industrial Strategy here. They include Ofcom, the Accounts Commission for Scotland, The Bank of England, HMRC, The Comptroller and Auditor General, the SFO, the FCA, and other bodies.

If you are dissatisfied with how your employer handled your concern, you can tell someone else (e.g., a more senior member of staff) or a prescribed person.

Your employment rights will be protected whether you report your concerns to your employer or to a prescribed person.

Wider disclosures than that may be permitted but are very fact-sensitive. For example, disclosure to the media will only be protected in limited circumstances. Where disclosure is not permitted, you will not retain the protection given by PIDA.

To bring a successful claim in the Employment Tribunal (ET) if you are dismissed (or suffer a detriment), you will need to show the following:

1. that you made a disclosure;
2. you followed the correct disclosure procedure, and
3. You were dismissed or suffered a detriment from making the disclosure.

It is worthwhile noting that since June 2013, when a case goes to the ET, and the ET thinks the disclosure was made in bad faith, it has the power to reduce compensation by up to 25%.

If you don’t get the response you think your situation merits, talk to employment lawyer Karen Cole today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.