Employment Essentials: October 2017's top 5

Gowling WLG's employment, labour & equalities experts bring you the latest top five employment law developments that may affect your business - what they are, and what you can do about them.

1. Whistleblowing: Manipulation of the decision-maker
2. Unfair dismissal: Can an investigation be too thorough?
3. Maternity: Risk assessments can be risky business
4. Tribunal fees: launch of reimbursement scheme
5. EU Posted Workers: proposed improved rights

1. Whistleblowing: Manipulation of the decision-maker

Where an employee is dismissed, it will be automatically unfair if the principal reason for the decision to dismiss was that they made a protected public interest disclosure. This month in Royal Mail Ltd v Jhuti, the Court of Appeal confirmed that even in the context of a whistleblowing unfair dismissal claim, it is only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss that is relevant.

Having said that, in cases of "manipulation" care is needed and the above principle may be subject to qualifications by reference to the status of the manipulator. The statutory right not to be unfairly dismissed depends on there being unfairness on the part of the employer. Unfair or even unlawful conduct on the part of individual colleagues or managers is immaterial unless it can properly be attributed to the employer:

1. Where a colleague with no relevant managerial responsibility for the victim procures his or her dismissal by presenting false evidence by which the decision-taker is innocently and reasonably misled - the employer will not have acted unfairly.
2. Where the manipulator is the victim's line manager but does not himself have responsibility for the dismissal - again the employer will not have acted unfairly as long as a fair and thorough investigation has been carried out.
3. Where the manipulator is "a manager with some responsibility for the investigation", albeit not the actual decision-taker - there may be an unfair dismissal. For example, manager A is given responsibility for investigating allegations of misconduct which are then presented in a misleading fashion to manager B as the factual basis for a disciplinary decision. In this scenario, there would be a strong case for attributing to the employer both the motivation and the knowledge of A even if the motivation is not shared by B. In such a case the conduct of the investigation is part of the decision.
4. Where someone at or near the top of the management hierarchy - for example, the CEO - procures a worker's dismissal by deliberately manipulating the evidence before the decision-taker - there may well be an argument for attributing to the employer both the motivation and the knowledge of such a senior individual.

In the case of Ms Jhuti, although her line manager supplied documents and responded to a query by the decision-maker that did not make him an investigator. As such he fell within scenario (2) and his motivation and knowledge was not attributable to the decision-maker.

In both scenarios (1) and (2), while the employee has no doubt suffered an injustice at the hands of a colleague, the employer has not acted unfairly in the decision to dismiss. But that is not the end of the story…

Not automatic unfair dismissal but possible vicarious liability for dismissal consequent on detriment

Whistleblowers have two levels of protection under the Employment Rights Act 1996: unfair dismissal (section 103A) and unlawful detriment (section 47B).

The Court of Appeal has confirmed that in principle, there is no obstacle to an employee such as Ms Jhuti recovering compensation for dismissal consequent on detriment via a claim under s47B(1A) with the employer being vicariously liable for actions of the line manager (subject to any reasonable steps defence).

Whether the statutory provisions allow a "detriment" claim to be brought where the detriment complained of is dismissal is controversial. The Court of Appeal rejected legal arguments where the detriment complained of is dismissal, any claim is restricted to an unfair dismissal claim. According to the Court of Appeal "dismissal consequent on detriment" claims are possible. This is in line with the Employment Appeal Tribunal decision in International Petroleum Ltd and ors v Osipov and ors (which came out in between the hearing and judgment in Jhuti - see Employment Essentials: July's top 5). As Osipov is currently on appeal and the factual scenario and arguments raised are very different the Court of Appeal refused to comment on Osipov at this stage. Further appeal to the Supreme Court appears likely whether in Jhuti or Osipov or indeed both.

Employers should ensure they have a well-publicised whistleblowing policy and take steps to prevent whistleblowers being harassed by colleagues. An employer will have a potential statutory defence to a whistleblowing vicarious liability detriment claim if it can show that it took all reasonable steps to prevent a fellow worker from doing the act in question or acts of that description. What amounts to 'all reasonable steps' will depend on the circumstances. So far there have been no cases considering what amounts to 'all reasonable steps'. However, by analogy with discrimination law, among the matters likely to be considered by a tribunal are:

• whether the employer has put in place a whistleblowing policy;
• whether the policy makes it clear that victimisation of whistleblowers will not be tolerated;
• whether the policy has been brought to the workforce's attention via training; and
• how the employer deals with complaints regarding detrimental treatment by whistleblowers.

2. Unfair dismissal: Can an investigation be too thorough?

In NHS 24 v Pillar, the Employment Appeals Tribunal (EAT) has overturned an employment tribunal's decision that a disciplinary investigation into an allegation of gross misconduct should not have included details of previous similar incidents involving the employee, which had been addressed through training rather than disciplinary action. Since the tribunal had gone on to find that the decision to dismiss, which had taken these previous incidents into account, was within the range of reasonable responses, it had been perverse to then find that the dismissal was nonetheless procedurally unfair because the investigation had been, in effect, too thorough.

In this case, a triage nurse was dismissed for gross misconduct following a Patient Safety Incident (PSI) in December 2013. She had been responsible for two earlier PSIs because of her triage decisions, one in August 2010 (very similar to the December 2013 PSI) and one in July 2012 (concerning a different medical condition). Neither of those earlier PSIs had led to disciplinary action. They were instead dealt with by providing a development plan and additional training.

In the EAT's view, the fact that the earlier incidents were addressed solely through training and development did not create any expectation that future incidents would not be regarded more seriously. Also, it was clear that the tribunal had been wrong to hold that information that was relevant to patient safety should have been withheld from the decision-maker. The EAT highlighted that it is for the investigator to put together all relevant information and for the decision-maker to decide what to do with it. It is the decision-maker's state of mind that should be considered when a tribunal is assessing whether dismissal was within the range of reasonable responses, and the reasonableness of an investigation is relevant only where it results in an absence of proper information being put forward to the decision-maker.

In this case, the nurse also argued that if an expired warning cannot be a determining factor in a decision to dismiss, then surely conduct not treated as a disciplinary matter at all could never be such a factor. The EAT acknowledged that the issue of fairness to an employee in taking into account past misconduct in the decision to dismiss is a contentious area. They acknowledged previous case law in which the expiry of a formal warning gave the employee a "false expectation" that it would no longer be a determining factor in future disciplinary action This "false expectation" made a subsequent dismissal in reliance on the expired warning unfair. However, in this case no expectation had been created as to whether the earlier PSIs would or would not be relevant to a future disciplinary investigation.

As regards expired warnings, the EAT also referred to the earlier Court of Appeal judgment in Airbus (UK) Ltd v Webb [2008]. In that case, the Court of Appeal confirmed that there is a difference in the situation where the expired warning tips the conduct into dismissal territory and a situation where the employee's conduct on its own is sufficient to justify the dismissal and the expired warning prompted the employer not to exercise good will towards the employee by replacing dismissal with a final written warning. An employer may take into account previous disciplinary records, including expired warnings, in deciding that the circumstances do not merit a lesser penalty.

NHS 24 is another example of the extent to which past conduct can be taken into account by an employer when deciding to dismiss.

3. Maternity: Risk assessments can be risky business

All employers are under a duty to protect the health and safety of their employees. There are special duties that apply in respect of new or expectant mothers in the workplace. The law requires employers to assess the potential workplace risks to the health and safety of pregnant or breastfeeding employees or their babies.

In Ramos v Servicio Galego de Saúde the Court of Justice of the European Union (CJEU) was asked whether, if a job performed by the worker is included in a list of risk-free jobs drawn up by the employer after consulting workers' representatives without reference to the individual worker does this: (a) meet the requirement to conduct a risk assessment in accordance with article 19 of the Equal Treatment Directive? and (b) if not, does it constitute direct sex discrimination?

This case concerned a nurse who informed her employer she was breastfeeding and that the tasks required by her job exposed her to health and safety risks due to factors including complex shift rotations, ionising radiation, infections and stress. She therefore requested adjustments to her working conditions. The employer hospital refused her request as her job was included in a generic list of risk-free jobs drawn up by the employer after consulting the workers' representatives. The nurse challenged the decision contending that her job did pose a risk and had a letter from her line manager who was a senior consultant in support.

The CJEU has held that where a risk assessment is carried out there must be an examination of the individual situation of the worker to establish whether the health and safety of her and her child is at risk. Failure to conduct such a risk assessment must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and constitutes direct discrimination on grounds of sex.

The CJEU also points out that the same working conditions may raise different health and safety issues for different women at various stages of pregnancy, and similarly on returning to work after childbirth or whilst breastfeeding. Some of these issues are predictable and apply generally; others will depend on individual circumstances and personal medical history.

What can employers learn from this?

A generic assessment of the workplace, jobs and the general state of health of the average female worker who is pregnant, recently given birth or who wishes to breastfeed is unlikely to amount to a satisfactory risk assessment. Employers should also remember a risk assessment for a worker who is pregnant will not inevitably have the same result for a worker who is breastfeeding.

If a risk assessment reveals any risk, the employer is required:

• Step 1: Take any reasonable measures to avoid the risk.

If that fails:

• Step 2: Alter the employee's working conditions or hours of work

If that fails or is not feasible:

• Step 3: Offer suitable alternative work

If that is not feasible:

• Step 4: Suspension on maternity grounds (paid*)

*An employee who has been suspended from work on maternity grounds is entitled to be paid remuneration during the period of suspension. However, if the employee unreasonably refuses an offer of suitable alternative work, she will lose the right to be paid during the suspension.

4. Tribunal fees: launch of reimbursement scheme

Following the historic Supreme Court ruling which declared employment tribunal fees unlawful, the Government has launched the opening stage of its employment tribunal fees reimbursement scheme.

There will be a phased implementation of the scheme, under which the Government is initially writing to around 1,000 eligible parties inviting them to apply for reimbursement. The Ministry of Justice and HM Court & Tribunal Service are also working with trade unions in relation to large multiple claims. The press release goes on to clarify that successful applicants will be paid interest of 0.5%, calculated from the date of the original fee payment up until the refund date.

Full roll-out of the scheme is expected in mid-November. Parties who have paid a fee but are not invited to take part in the initial stage can pre-register their interest, either by email at: ethelpwithfees@hmcts.gsi.gov.uk or by post at:

For proceedings in England and Wales:

For proceedings in Scotland:

The Government has yet to announce how claims which were rejected or dismissed for non-payment of a fee (or failure to apply for remission) will be dealt with. However, it is expected that HMCTS will be writing to affected claimants asking whether they wish for their claim to be reinstated.

5. EU Posted Workers: proposed improved rights

The European Parliament has announced draft rules to allow EU posted workers to get equal pay and rights.

Posting occurs when services are provided across borders. Posted workers have an employment contract in their home country, but are sent by their employer temporarily to another Member State to carry out particular work. Posting has increased by 41.3% between 2010 and 2015. In 2015 there were 2.05 million posted workers in the EU. Poland, Germany and France send the highest number of posted workers with Germany, France and Belgium receiving the highest number. Posting happens less frequently between Great Britain and other European territories, due to geography.

On 16 October the EU Parliament's Employment and Social Affairs Committee announced new draft rules giving posted workers improved rights.

The main changes are on pay, duration of the posting and temporary agencies, and include:

1. Pay: all of the host country's rules on remuneration, set by law or collective agreements, should apply to posted workers.
2. Improved workers' conditions: travel and accommodation costs must be reimbursed or be part of the wage.
3. Duration: if the posting is longer than 24 months, all the host country's labour conditions would apply to posted workers. A 24-month limit can be extended if a company needs more time to complete the service it was required to provide.
4. Temporary work agencies and subcontracting: to prevent 'chain postings' aimed at circumventing obligations, the new rules would also apply to posted workers sent by a temporary agency from another Member State. Member States may oblige the subcontractor to pay their posted workers the same amount as the main contractor.

Next steps

The full House is expected to vote on the draft mandate to enter into informal negotiations with the Council at the next plenary session. EU Ministers have yet to adopt their positions.