Relationships between School Employees and those convicted of a serious offence

Highly Relevant to those who lead or work within Schools

This case is a timely reminder to all who work within Schools, and any other organisations that work with vulnerable groups, that full disclosure of any relationship with a person who may present a risk to vulnerable individuals must be made to the employer.

The Claimant was employed as head teacher of a primary school; it transpired that she had a link with a man who had been convicted of an offence involving indecent images of children.

Whilst Ms Reilly did not have a romantic link with the person in question, Mr Selwood, she co-owned an investment property with him and had witnessed his arrest in 2009 on suspicion of having downloaded images of children. This was a month after she had applied for employment at the School.

Ms Reilly made no disclosure to her employer about the arrest or her relationship with Mr Selwood. At first she considered him innocent but as time went by it became less and less reasonable for her to maintain that belief. Eventually Mr Selwood was convicted and yet still Ms Reilly made no disclosure of this.

The governors of the School learnt of these matters in 2010 and suspended Ms Reilly; she was later dismissed for her failure to disclose the relationship. Ms Reilly never conceded fault in this respect, which was relied upon by her employer as an aggravating factor justifying summary dismissal for gross misconduct.

Ms Reilly won her unfair dismissal claim on procedural grounds (the appeal process was defective), but the Tribunal considered fair dismissal a 90% certainty had a proper appeal process been followed, and reduced compensation accordingly. This is known as a ‘Polkey’ reduction and it is applied in a great many cases, often producing a Pyrrhic victory for claimants.

Ms Reilly pursued a series of appeals, culminating in an appearance in the Supreme Court (i.e. the ultimate court of appeal for domestic law issues, and in due course following Brexit for all matters).

Those who follow Supreme Court decisions will know that – despite what some newspapers would have you believe – when it comes to the independence, sophistication and insight to be found in the Judges of our ultimate appeal court, we in the UK can – and should – be very proud. Needless to say the appeal was dismissed.

The Supreme Court upheld the Tribunal’s (and the EAT’s and the Court of Appeal’s) finding that the failure to disclose the relationship, and the ongoing refusal to accept culpability for this, fully justified dismissal despite Ms Reilly’s otherwise exemplary employment record and the fact that she had committed no blameworthy act herself (the sin being one of omission).

Please feel free to refer to this link and share it wherever appropriate. There are very good reasons for the requirements of disclosure in these circumstances and our children need the best protection we can give them from predatory individuals.

Diabetes and disability issues

Diabetes is a hot potato issue these days; here’s what you need to know

There are an estimated 4.5 million people in the UK today with diabetes; this includes around 1 million people who have type 2 diabetes but don’t know yet because they have not been diagnosed!

Type 2 diabetes is the most common type: it accounts for around 90% of diabetes sufferers and is a long term metabolic disorder. The symptoms often appear slowly over a long period of time. If managed correctly with diet, weight control and exercise it is often possible to stave off type 2 diabetes indefinitely. I know people who have done this; they can often be seen wandering the isles in supermarkets checking the glycemic index on breakfast cereal packets.

Poor diet choices and a high stress / low exercise lifestyle are believed to be behind a significant increase in diabetes over the last 30 years. ‘Significant’ is an understatement unfortunately: the increase in diabetes worldwide has been more than ten fold since 1985.

So on average more than 1 in 10 of those employed in the UK has diabetes (diagnosed or undiagnosed) and all expectations are that this will continue to increase.

So what do UK employers need to be aware of?

From an employment law perspective the obvious issues relate to the Equality Act 2010 and whether or not 1/10th of our workforce is disabled.

As a general rule of thumb employers cannot lawfully treat employees less favourably because of something connected with a disability. Like for example: their attendance, or their work performance.

Then there is the employers’ duty to make reasonable adjustments to counter-act disadvantages caused by a disability (e.g. time off work to attend appointments, breaks for insulin injections, etc).

But here is the thing: usually a disability will involve a substantial effect to the employee’s ability to do normal day to day activities, so employers are more likely to be aware that there is an issue and that they need to consider ‘disability’ type issues.

However, a recent court decision highlights that diabetes, as a progressive condition, can qualify as a disability even if it does not yet have a substantial effect (as long as this is likely to be so in the future).

To further complicate matters, measures that reduce or avoid a substantial effect (i.e. medication or any other treatment) must be disregarded. The questions is: what would the effect be without the treatment? So even a crystal ball won’t always help employers know if they have these duties.

All of this means employers need to be much more vigilant when dealing with employees who have disclosed that they have diabetes, or who are displaying the common symptoms. Being overweight is not itself a disability: but it is increasingly going to be a strong indicator that diabetes is a high risk.

If someone has diabetes (or you have reason to believe they may have it), the safest route will be to assume they have a disability and treat them accordingly.

This means investigating the nature and effect of any condition (think: occupational health referral plus an ongoing dialogue with the employee in question) and being proactive about making adjustments.

Gay Rights vs Christian Beliefs

The Northern Ireland Court of Appeal has today decided an appeal in the litigation known as the ‘Gay Cake Case’.

A gay rights campaigner asked a christian baker to bake the cake pictured above. The baker refused and the campaigner claimed unlawful discrimination. Perhaps there were no other cake shops in town?

‘So how does that even work?’ you may ask. It goes like this: the campaigner is associated with the campaign to legalise gay marriage in Northern Ireland; the baker treated him less favourably because of that association and therefore on the grounds of gay/lesbian sexual orientation.

Most media attention has focused on the idea that the immovable object of religious belief was meeting the irresistible force of gay rights. Which would prevail in this modern incarnation of the ancient ‘spear / shield paradox’? ‘Roll up, roll up’, tickets for entry, edge of seat stuff. Even Patrick Stewart has commented. Please beam me up!

What they don’t tell you is this: associative discrimination is direct discrimination (i.e. less favourable treatment because of the protected characteristic itself, not something linked to it) and cannot be justified (by reference to religious belief, or anything for that matter).

So the baker was left to argue technical defence points, like freedom of speech (or if you think about, a kind of inverted freedom not to speak / write in icing).

Unsurprisingly it did not work; the Court of Appeal ruled against the baker and the sound of teeth biting down onto rosary beads was almost palpable.

The bottom line: ‘you cannot legally refuse a service to someone because of sexual orientation (either their own, or that of others who are associated with them)’. Most UK employers know this already: now the bakers of Northern Ireland do too.

Settlement Discussions

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What effect do settlement negotiations have on the ongoing employment relationship?

A recent case involving Leeds United Football Club highlights the importance of treating possible settlement discussions separately from the ongoing employment relationship. It’s a trap employers often dance dangerously close to.

In the Leeds United case the assistant manager declined a promotion and entered into settlement discussions about agreeing termination to his employment. Whilst this process was underway he was given alternative and less responsible duties and resigned in response.

The High Court found that the Claimant’s willingness to negotiate a termination package did not preclude him from claiming constructive dismissal.

This case re-enforces advice we often give to clients about settlement negotiations. Essentially, the parties should treat ‘without prejudice’ discussions about settlement as both invisible and entirely separate from the ongoing employment relationship.

The employer, in particular, should behave as if settlement negotiations were not taking place right up until the ink on the Settlement Agreement is dry!

So the answer to the question posed above is: ‘none!’

Investigations and the Right to Privacy

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Is it a breach of human rights to monitor emails?

Article 8 of the European Convention on Human Rights protects employees’ right to privacy; this extends to the sanctity of private correspondence. Which makes sense of course: no reasonable employer would expect to have access to credit card statements, final demands and love letters!

However, things are less clear – much less clear – when the employee uses work email to send and receive personal emails. The nutshell answer is that employees’ private emails, even those sent from a work email account, are covered by Article 8 if:

  • the employee has a reasonable expectation of privacy
  • the emails do not impact on work related matters
  • the emails are not addressed to colleagues’ work email addresses

So, what to do? We advise that you should have a written policy that explains your approach to email and internet usage and which makes it clear that employees cannot expect emails sent using work systems to be kept private.

You could indicate that monitoring of emails will, where possible, avoid access to those whose subject line contains something like: ‘Private & Personal Email Not Relevant to Business Functions’. This will discourage the practice except in real emergencies, and make it very obvious when email systems are being abused.

Equal Treatment of Agency Staff

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Do Agency Staff need to be given equal opportunity to apply for permanent positions?

Agency workers must be informed of permanent vacancies and the Temporary Agency Worker Directive provides rights of equal treatment when compared to permanent staff, however: how far does this duty go?

The answer, according to the Employment Appeal Tribunal in the Coles v Ministry of Defence Case, is that for agency workers the principle of equal treatment is confined to working time and pay.

In this case Mr Coles, an agency worker, was displaced when his job was given to a permanent employee who was at risk of redundancy. The EAT decided that there was no requirement for him to be treated equally to permanent employees and given an opportunity to be interviewed.

Travel time is working time for peripatetic workers

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A question that often arises is whether, in the case of a worker who is not assigned to a place of work, journey time from home to the first customer and from the last customer back to home, counts as working time

Yves Bot, the Advocate General of the Court of Justice of the European Union (CJEU) has stated his opinion in the Federacion de Services case, advising that time spent on these journeys is working time.

Whilst the CJEU does not have to follow the Advocate General’s recommendations it seldom decides not to, so it is almost certain that this will be upheld in by the court in due course.

This means that employers must include these journey times in the calculations of weekly working hours and pay, and factor this time when addressing workers’ rights to minimum break times.

Jewish Sabbath and Religious Discrimination

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A Manchester Tribunal awarded £16,000 in damages to an unsuccessful job applicant who was rejected because she could not work on Saturdays

The Jewish sabbath (‘shabbat’) prohibits work from sunset on Friday to sunset on Saturday, however, the Respondent is a travel agency and wanted an employee who could be more flexible with hours.

Employers who operate practices that disadvantage applicants or employees because of their religion or belief face indirect discrimination claims, however, this is not the end of the story.

Often indirect discrimination can be justified and if individual cases are handed sensibly and carefully, this kind of liability (and the associated negative publicity) can be avoided.

Flowing Jilbabs and Religious Discrimination

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The EAT has upheld a Tribunal’s decision that a limit on the length of a ‘jilbāb’ was not discrimination

A ‘jilbāb’ is any long and loose fitting coat or garment and is worn by some muslim women. The jilbāb covers the entire body, except for hands, face, and head. The head and neck are then covered by a scarf or wrap (khimar). Some women will also cover the hands and face (niqab).

This type of garment is worn to comply with the Quran’s stipulations about modesty, in both men’s and women’s ‘gaze, gait, garments, and genitalia’ (see the Encyclopaedia of Islam and Muslim World).

In the case of Begum v Pedagogy Auras UK Ltd Ms Begum applied for a job as a nursery assistant and was asked if she could wear a shorter jilbāb that was not a trip hazard. She said ‘no’: she felt obliged to wear a long, flowing jilbāb, and took a claim of indirect discrimination on grounds of religion or belief against the employer.

Ms Begum lost her claim on two grounds:

  • she had not shown that her faith required a jilbāb that went beyond ankle level.
  • even if her faith required such a garment the employer’s reason for requiring a shorter one was justified.

The EAT upheld the Tribunal’s decision, finding that there was no error of law in its approach and that its findings were not perverse.

Warnings issued in bad faith

Way v Spectrum Property Care

Warnings at work are a bit like stepping stones, each taking the employee a little closer to dismissal. But where it’s alleged that a warning should not have been issued, is the employer still entitled to rely on it in later disciplinary proceedings?

Mr Way was an Electrical Contracts Manager for Spectrum. He was on a final written warning and went on to be dismissed for unrelated misconduct. The company took account of the final written warning in reaching its decision to dismiss.

Mr Way had alleged bad faith on the part of the line manager who had issued the warning. The employment tribunal didn’t hear evidence about this at his unfair dismissal hearing; the dismissal was fair, the tribunal said. The Employment Appeal Tribunal held that, while Mr Way had done enough to raise a case of bad faith and the tribunal should have looked into this, it made no difference to the outcome.

But the Court of Appeal has sent the case back to a new tribunal. It will decide if the earlier warning was issued in good faith. If it wasn’t, it would have been unreasonable to rely on it when deciding if there was sufficient reason to dismiss Mr Way. And the fairness of the dismissal hinges on that.

So be clear about the significance of employees’ submissions on the motives behind warnings. Take any mention of bad faith seriously and be careful to not let it undermine the reasonableness of your disciplinary decisions. Ultimately, you have to disregard any past warning if, after investigation, you agree it was issued in bad faith.