December 31, 2018

U.K. Employment Law Update: Employer Liability, Whistleblowing Dismissals and Trial Periods in Redundancy

Was an Employer Liable for an Assault Committed by one of its Employees on Another?

In Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214, the Court of Appeal considered whether an employer was liable for an assault committed by one of its employees on a colleague.

Mr Bellman worked as a sales manager at Northampton Recruitment (NR). After the company’s Christmas party, some of its employees (including Mr Bellman and the company’s managing director, Mr Major) went to a nearby hotel for further drinks. When the conversation turned to the company’s business, Mr Major became increasingly angry at what he perceived to be a challenge to his authority. He eventually lost his temper and punched Mr Bellman twice causing Mr Bellman to hit the ground and suffer significant brain injuries.

In deciding whether Mr Major’s actions were “in the course of employment” (which would mean NR could consequently be held liable), the Court applied the “close connection” test established in Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 (previously reported by us here). This test considers (i) the nature of the wrongdoer’s job or field of activities (assessed broadly); and (ii) whether there is a sufficient connection between the job and the wrongful conduct. The Court held that both parts of the test were satisfied: Mr Major’s remit was wide and he was seeking to assert his authority as managing director when he punched Mr Bellman. This was despite the fact that the attack took place after the Christmas party and at a different location.

While the Court emphasised that the circumstances of this case were exceptional, employers should take note that they may be held liable for the actions of their employees, even where such actions take place outside working hours and away from the workplace.

Can Workers be Held Personally Liable for a Whistleblowing-Related Dismissal?

In Timis and another v Osipov [2018] EWCA Civ 2321, the Court of Appeal considered whether workers can be held personally liable for dismissing a co-worker for having made protected disclosures.

Mr Osipov worked as the CEO of International Petroleum (IP) and made a number of disclosures which were protected under U.K. whistleblowing legislation. Mr Timis and Mr Sage, non-executive directors of IP, were responsible for the termination of Mr Osipov’s employment. Mr Osipov brought a claim of unfair dismissal against IP. He also brought claims against Mr Timis and Mr Sage alleging that they had subjected him to a detriment by effecting his dismissal because he had made protected disclosures. Mr Timis and Mr Sage argued that under U.K. whistleblowing law a claim for detriment could not be brought against them if the detriment amounted to dismissal.

The Court of Appeal held that although it is correct that U.K. law prevents a claim for detriment being brought against an employer if the detriment amounts to dismissal (in which case the appropriate claim is unfair dismissal), a claim for detriment could be brought personally against individual workers where the detriment amounts to dismissal. This decision ensures that whistleblowers do not receive less protection than workers subjected to other forms of discrimination or victimisation.

To reduce potential exposure to whistleblowing claims, against both themselves and their workers, employers should ensure that they have in place up to date whistleblowing policies and provide effective training, including making workers aware of the risk of personal liability.

Failure to Offer a Trial Period Likely to Render Dismissal for Redundancy Unfair

In George v London Borough of Brent UKEAT/0089/18/RN, the Employment Appeal Tribunal (EAT) looked at whether failing to offer a trial period in respect of an alternative role for an employee at risk of redundancy rendered a dismissal unfair.

Ms George was a library manager for the London Borough of Brent (Brent). When her role was identified as being at risk of redundancy, she was offered an alternative role in a more junior position. Brent informed her that she would not be offered a trial period, even though she had a contractual entitlement to such a period under Brent’s redundancy policy and a statutory entitlement under U.K. law. Ms George declined the alternative role, was dismissed for redundancy and brought an unfair dismissal claim.

At first instance, the Employment Tribunal (ET) dismissed the claim, finding that Ms George had not been disadvantaged by the failure to be offered a trial period as she would have rejected the alternative role in any case. On appeal, the EAT held that the ET had failed to take into account the fact that Brent had been in breach of contract. It also found it “inexplicable” that the ET thought Ms George had not been disadvantaged as trial periods offer many advantages, including giving the employee an opportunity to see whether they are able to work in the new role. The EAT remitted the case to a freshly constituted ET to reconsider the matter.

Employers should note that failing to offer a trial period would likely render a redundancy dismissal unfair under U.K. statute, even if there is no contractual right to such a period. This would be the case even where the employee indicates that they would not take the alternative role.

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