What did we get up to last month?
We reported in our June bulletin that Mike Ashley, owner of Sports Direct, had appeared before the Business, Innovation and Skills Committee to respond to questions about working practices within the company. The Committee has now published its report, and its findings are damning. One paragraph reads:
“The way the business model at Sports Direct is operated…involves treating workers as commodities rather than as human beings with rights, responsibilities and aspirations. The low-cost products for customers, and the profits generated for shareholders, come at the cost of maintaining contractual terms and working conditions which fall way below acceptable standards in a modern, civilised economy. There is a risk that this model – which has proved successful for Mr Ashley – will become the norm. We will be considering the full implications of this business model in the context of our broader inquiry into the labour market”
Given these comments, it seems clear that we can expect legislation or, at the very least, some new codes of practice at some point in the future to address working conditions which – while currently lawful – do not reflect the values of a civilised society.
On a similar theme, we saw it reported in the press that the Department for Business, Energy and Industrial Strategy (BEIS) has ordered Deliveroo to pay everyone providing delivery services in its name the National Minimum/Living Wage, unless and until there is a court judgment declaring these individuals to be self-employed, rather than workers. However, we cannot see that BEIS has any power or jurisdiction to order businesses to pay individuals a particular rate of pay; issues concerning employment status and underpayment of wages fall to the jurisdiction of the Employment Tribunals and HMRC. Maybe the stance that BEIS has taken is a sign of intent with regards to the legislation which may be passed following the Sports Direct inquiry.
Any new cases to be aware of?
The Court of Appeal held in A v B and another that a school had acted reasonably when it dismissed a head teacher (A) for misconduct after it discovered that she had failed to disclose her close friendship with someone (IS) who had a conviction for making indecent images of children. A was not romantically involved with IS, but their relationship was more than purely financial; they had bought a house together as an investment and while IS lived there alone, A did sometimes stay over. They also frequently went on holiday together.
In 2010, IS was convicted of making indecent images of children and was given a supervision order barring him from having contact with children under the age of 18 on his own. Bearing in mind the safe-guarding obligations that her role entailed, A sought advice from various people including a police officer, a probation officer, the Criminal Record Bureau (now the Disclosure and Barring Service) and governors at other schools about whether she ought to disclose information about her relationship with IS and his offence to the school. She concluded from her discussions that it was not necessary to make the disclosure.
The school subsequently became aware of A's relationship with IS and his conviction. Following an investigation, A was dismissed for gross misconduct on the basis that she had put children at the school at risk by failing to disclose details of her relationship with IS, and that she had not accepted her error either during the investigation or at disciplinary level but had maintained that she had acted correctly. Her appeal against her dismissal was unsuccessful.
The Employment Tribunal found that in principal A's dismissal was fair, although there were flaws in the procedure which made the dismissal procedurally unfair. However, it concluded that without those flaws, there was a 90% chance that A would have been dismissed anyway (and that dismissal would have been fair) and that in any event she had contributed 100% to her dismissal. Her compensation was reduced by 100% accordingly.
A appealed to both the EAT and the Court of Appeal but both appeals were dismissed. It was held that A's association with IS did pose a risk to children at the school and she should have realised that she had a duty to inform the school of that risk so that steps could be taken to protect them. The disciplinary rules in place stated that a failure to report any matter about which there was a duty to report was an example of conduct which could give rise to disciplinary action.
The school did not spell out exactly what it believed the risk to children actually was, but the Court of Appeal said that it did not need to – it was not difficult to see that IS posed more than just a general risk. In light of this, disclosure was necessary so that the governing body could consider what protective steps were required.
This was a complicated case and careful consideration was needed to balance A's right to a private life with her obligations to her employer. Employers must always balance these aspects when making discoveries about an employee's private life; it will rarely be fair to dismiss an employee for something occurring in their private life simply because the employer may find that occurrence worrying or offensive.
In Royal Mail Group v Jhuti, the EAT has held that Ms Jhuti was automatically unfairly dismissed for having made whistleblowing disclosures, even though the person who dismissed her was not aware of those disclosures and had genuinely believed that Ms Jhuti's poor performance merited dismissal. However, the dismissing manager's decision to dismiss had been strongly influenced by Ms Jhuti's line manager, who was aware of the disclosures and had turned against Ms Jhuti because of them.
This case highlights the importance of ensuring impartiality of both the investigating officer and the dismissing manager in disciplinary cases to avoid being influenced by a colleague who may have an ulterior motive.
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