In Halstead v JD Wetherspoons plc, the Employment Tribunal has considered whether an employer failed to make reasonable adjustments to their processes and the way in which they applied a “zero tolerance” policy to an employee with autism, and whether that failure amounted to disability-related harassment.

What happened in Halstead?

Facts

Mr Halstead started his employment with Wetherspoons as a kitchen porter in late 2018 in Berkhamsted. Although he left for a short period, he returned to work for the same branch in May 2019 and later, in 2021, moved to the Wetherspoons in Trowbridge. He had been diagnosed with autism at the age of two and had informed the Berkhamsted branch of this, however this information was not shared with Trowbridge at the time of his transfer.  

In August 2023, Mr Halstead and his mother went for a family meal at a Wetherspoons pub along with five visiting family members. Mr Halstead, assisted by his mother, place the order through the Wetherspoons app and ticked the box to confirm that he accepted the employee discount policy and privacy policy. As a result, Mr Halstead’s employee discount of 20% was applied to the entire order, even though the policy said the discount was only permitted to be used for groups of up to four people.

Mr Halstead was investigated and subjected to a disciplinary process in relation to his use of the discount and potential breaches of Wetherspoons’ data protection and confidentiality policies (because he permitted his mother to access the app). During the investigation, the impact of Mr Halstead’s autism on his day-to-day activities was discussed, including a requirement that someone directs him to read necessary documents (ideally sitting him down to go through any document with him). They explained that delay would highly impact his anxiety and that the process was causing him significant distress. Despite this, Wetherspoons did not make any adjustments to the disciplinary process.

Mr Halstead subsequently went off sick from work, and a long-term sickness meeting was arranged prior to obtaining the outcome of his occupational health referral. The occupational health report set out clear adjustments that should be made.  These included giving 1-2-1 explanations of important documents, and confirming the extent to which his mother needed to be involved in his meetings and day-to-day tasks. It also emphasised the need for additional notice and other adjustments to meetings.

Contrary to the occupational health advice, no adjustments were made to the meeting for Mr Halstead’s grievance, which he had raised about his treatment. An adjusted meeting was eventually arranged, following his mother’s objections. There had also been no update on the disciplinary process, Mr Halstead had not been having his appraisals, and had not been paid correctly, all of which contributed to his anxiety.

In December 2023, Wetherspoons invited Mr Halstead to a “some other substantial reason” (SOSR) hearing to discuss what they asserted was a breakdown in the employment relationship and his apparent failure to attend meetings about his long-term sickness and his grievance. For this hearing, Wetherspoons offered numerous adjustments including the questions being sent in advance, an option for written submissions, an option to change the meeting time and location, confirmation of his mother’s eligibility as companion and an open invitation to suggest any other adjustments in advance. This meeting was successful and in January 2024, Wetherspoons ended the SOSR process and instead invited Mr Halstead to an informal meeting to enable his return to work. In March 2024, Mr Halstead returned to work with several practical adjustments to support him.

Mr Halstead had approached ACAS for early conciliation during his grievance process and, whilst he had successfully returned to work, Wetherspoons had declined to offer him any financial compensation for the prior treatment. He therefore brought a claim under the Equality Act 2010 (EqA) for a failure to make reasonable adjustments (Section 20 and 21) and disability-related harassment (Section 26). It was accepted that his condition amounted to a disability under Section 6 EqA, and that Wetherspoons had known about it at the relevant time.

Tribunal’s Decision

The Tribunal upheld Mr Halstead’s claim of a failure to make reasonable adjustments, but did not find that Wetherspoons’ actions had amounted to harassment. Their key observations were as follows:

• Wetherspoons had failed to adjust its investigation, disciplinary, grievance and long-term sickness processes to accommodate Mr Halstead’s needs as an autistic person. In each case they had applied their standard process, including standard notice periods, template letters and options of companion at meetings, and had not permitted the Claimant’s mother to attend the majority of the meetings with him. They had also applied their standard categorisation of the breach as gross misconduct and suspended him during investigation, despite there being no apparent risk to the company of him working.
• In the disciplinary letter, Wetherspoons had also referred to Mr Halstead’s conduct as “dishonesty” and “abuse”, which had caused Mr Halstead undue distress. They remarked that this was notable given that a typical feature of autism was a strong desire to adhere to rules, and that there was no evidence of dishonesty; Mr Halstead had admitted to the breach, had explained the misunderstanding, and had confirmed it would not happen again now that he understood the rule.
• Mr Halstead had therefore been placed at a substantial disadvantage in these procedures compared to someone without his condition. The Tribunal considered that once it had been established that the breach had been caused by his condition, the matter should have been dealt with informally and not as a disciplinary matter at all.
• From December 2023 onwards, it was clear that the company had taken on board their positive duty to make adjustments.  The Tribunal described their approach from this point on as “exemplary”.
• Whilst it had clearly been distressing for Mr Halstead, the Tribunal did not consider that Wetherspoons’ conduct had amounted to harassment. The company had addressed the conduct in a standard manner which was inherently stressful and challenging for those involved, but this did not meet the threshold of intimidation (otherwise employers would never be able to conduct performance management).

Mr Halstead was awarded £25,412, the majority of the award being made for injury to feelings.

What can employers learn from this case?

The decision in Halstead offers a clear demonstration of the positive impact that making reasonable adjustments can have and, conversely, the negative impact that a failure to make them can have on a neurodivergent employee’s wellbeing and their ability to participate in standard processes.

Given the Tribunal’s commentary regarding the “exemplary” nature of the approach taken by Wetherspoons from December 2023 onwards, the judgment can serve as a helpful guide for employers as to the type of adjustments which can be made to support neurodivergent employees. Examples include:

• Providing longer notice periods for meetings, including investigation meetings. If notice would not usually be given for fact-finding meetings, consider whether this can be adjusted to allow them sufficient time to prepare without compromising the investigation.
• Giving clear explanations of the purpose of meetings, allegations made and the potential consequences (including agendas for meetings, where possible). Ensure that the employee understands the nature of the meeting and (if applicable) the seriousness, including the next steps after the meeting and potential outcomes.
• Allowing flexibility with the options of who can accompany the employee to meetings. This may require the employer to go beyond the standard categories of trade union or colleague companions.
• Minimising delays as much as possible and offering regular updates.
• Carefully wording allegations to ensure that they do not inappropriately presume guilt, dishonesty or cause unnecessary distress.
• Remaining open to any other adjustments suggested by occupational health providers or the employee themselves, and implementing them unless there is a very good reason not to.

Adjustments should also be considered more widely during employment to ensure that neurodivergent employees are placed on an equal footing with their colleagues. Employers should ensure that, where they know an employee has a condition that affects them at work, this is tracked through their employment journey and information is shared (with their consent) to enable proper support. This will be particularly relevant for employees whose conditions may lead to challenges in asking for support.

In addition, this case highlights for employers the danger of enforcing “zero tolerance” policies. The Tribunal was critical of such policies, suggesting that they can be problematic if applied on a blanket basis because they fail to consider the diverse needs of employees. Whilst the employer may consider a policy breach to be serious enough for suspension and potentially dismissal, they may nevertheless need to consider adjusting the standard applied to employees whose conditions may affect their understanding of the relevant policy or ability to comply with it. This may be surprising to some employers, as the concept of reasonable adjustments is commonly thought of in terms of processes rather than substantive expectations. However, it is clear from this case that applying policies in a one-size-fits-all manner could result in a failure to make necessary adjustments for disabled employees.

Finally, employers should note that it will not always be sufficient to rely on a contractual requirement to abide by all of their policies. They need to take active steps to ensure their policies are understood: this could include training, written communication and, where necessary, individual explanation.

Halstead v JD Wetherspoons plc

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

In Alom v Financial Conduct Authority, the Employment Appeal Tribunal considered the extent to which a script prepared by HR can demonstrate a pre-judged disciplinary outcome, and the level of evidence which must be provided to an employee in a fair process. In addition, the EAT considered the circumstances in which delays in issuing a Tribunal judgment and errors within that judgment can be grounds to overturn a decision.

What happened in this case?

Mr Alom was employed by the Financial Conduct Authority (FCA) and was dismissed in relation to his conduct towards his colleague, Ms Shaukat. Mr Alom and Ms Shaukat had formerly maintained a friendship, however following an altercation in January 2020 at work, Ms Shaukat accused Mr Alom of stalking her. Later that day, Ms Shaukat received an anonymous email which contained, among other matters, specific comments regarding her having made allegations of stalking against the sender and about a course that she had recently commenced (on which Mr Alom had previously congratulated her). Ms Shaukat raised the matter with HR, as well as other concerns regarding Mr Alom’s conduct towards her, and Mr Alom also made a complaint about Ms Shaukat. Upon receiving the results of the investigation into his complaint against her, Mr Alom emailed Ms Shaukat’s manager referencing the recommendations made.      

Following a disciplinary investigation, it was determined that Mr Alom was likely to have been the sender of the anonymous email (which he denied) and that the email sent to Ms Shaukat’s manager had been a breach of confidentiality. As a result, Mr Alom was dismissed for gross misconduct, and this outcome was upheld on appeal.

Mr Alom brought a number of claims in the Employment Tribunal against Ms Shaukat and the FCA, however following several applications and rounds of case management, Ms Shaukat was removed as a respondent and the claims were narrowed to direct sex discrimination, direct race discrimination, harassment based on race and/or sex, victimisation and unfair dismissal.

Under a reserved judgment issued on 16 February 2024, the Tribunal concluded that none of Mr Alom’s claims should succeed. In summary, it determined that none of the FCA’s actions had been motivated by Mr Alom’s race or his sex, and the dismissal had been for the potentially fair reason of conduct, was within the range of reasonable responses and had followed a fair procedure.

What was decided?

Mr Alom appealed to the Employment Appeal Tribunal on several grounds, each of which was addressed by the EAT as follows:

• Mr Alom asserted that the Tribunal’s judgment had erred in relation to whether or not a witness had flown back to the UK to give evidence. The EAT did not agree that this was an error, and considered it clear from the judgment that the witness had planned to fly to the UK but, following the withdrawal by Mr Alom of all but one of the claims which concerned her conduct, it had been recorded by the Tribunal that she would no longer do so. The consequences of her not attending (with regard to cross-examination) had been explained to Mr Alom and he had withdrawn the only remaining complaint against her. This ground of appeal therefore failed.

• Mr Alom alleged that the Tribunal had erred in making a factual finding that he had been notified by the FCA of the intention to search his computer, and as a result his case that the search had been an infringement of his Article 8 rights (the right to respect for private and family life) rendering the dismissal unfair had been impacted. The EAT noted that it could not consider the Article 8 infringement as a standalone issue but only with relevance to the fairness of the dismissal. They determined that the decision to dismiss had not relied on the report which was produced from the computer search, and noted that Mr Alom had actually sought to rely on the report as evidence in support of his case. Even if the search had been a disproportionate interference in Mr Alom’s rights, there was therefore no proper basis to conclude that this made the dismissal unfair. As a result, this ground of appeal also failed.

• Mr Alom asserted that the delay in issuing judgment until February 2024 (following the hearing in May 2023) had led to a real risk that he did not receive a fair trial. He believed that this was compounded by factual inaccuracies in the judgment, including those noted above and a discrepancy as to whether a witness had attended via video link. The EAT acknowledged that the delay had been unacceptably long, but noted that this had been expressly explained in the judgment and that the Tribunal had convened the day after the hearing to deliberate and reach a decision when it was fresh in their minds. The inaccuracies were insubstantial in what was otherwise what they deemed a “meticulous, thorough, and closely-reasoned decision”. This ground of appeal therefore also failed.

• Mr Alom stated that he had not been provided with transcripts of the interviews conducted with Ms Shaukat, which he believed made his dismissal unfair as he did not know the case he was required to answer (with reference to the ACAS Code of Practice on Disciplinary and Grievance Procedures). The EAT concluded that he had still been provided with sufficient information to respond to the charges, which had stemmed solely from the two emails rather than any witness evidence from Ms Shaukat. Whilst it would have been best practice for the Tribunal to address the submission made by Mr Alom that this had made his dismissal unfair, the fact that they had failed to do so did not affect the result given the narrow nature of the disciplinary charges. This ground of appeal therefore also failed.

• Mr Alom claimed that the script prepared by HR for the disciplinary meeting echoed the conclusions drawn by the disciplinary decision-maker, and that this showed the outcome having been pre-judged and therefore unfair. In particular, Mr Alom took issue with the assertion in the script that the anonymous email had been “one of the most unpleasant emails I’ve read,” and considered that the guidance from HR had gone beyond the permitted remit of law and procedure. The EAT considered that the Tribunal, having heard evidence from the disciplinary decision-maker, had been satisfied that he had come to his own view and had done so only after hearing from Mr Alom. This ground of appeal therefore also did not succeed.

The appeal was therefore dismissed by the EAT. A representative for Mr Alom has reportedly confirmed that he intends to appeal this outcome further.

What does this mean for employers?

For employers, the most pertinent takeaway from the Alom case is likely to be the commentary made by the EAT regarding the level of input from HR into the disciplinary script.

Whilst they did not uphold the ground of appeal, the EAT made some notable observations that they could “see the force in the submission that the framing of these particular parts of the script was inappropriate, because they suggested what view Mr McLean should put forward”. This appeared to be particularly relevant to the part of the script that referred to the speaker having read the anonymous email, considered that it was “one of the most unpleasant emails” they had read, that they concurred with the investigation report’s findings that “its tone and language are aggressive and threatening and create an intimidating and hostile environment, that is clearly unwanted”, and that his response to an email querying his involvement had been “evasive”.

This is a helpful reminder of the dangers in relying on prepared scripts for disciplinary matters, and emphasises the need for scripted questions to remain open, impartial and not tailored towards any particular response or outcome. The disciplinary decision-maker must be confident both that they have heard the employee’s input before arriving at a decision, and that the decision reflects their own personal judgment on the matter. The input from HR teams (or indeed from internal or external counsel) should be limited to matters of law and procedure, and employers should be mindful that communications between HR and the disciplinary manager may not always be covered by legal advice or litigation privilege.  

In addition, employers should take note of the issue raised in this case regarding the consent obtained to search Mr Alom’s computer. As the EAT had determined that any breach of Article 8 rights was not pertinent to the fairness of the dismissal, it was not necessary to make a factual finding in relation to whether the search had been permitted or wrongful in any sense. However, counsel for Mr Alom alleged that the FCA’s policy highlighting the possibility of such searches was insufficient to justify this particular exercise, and counsel for the FCA only relied upon the existence of this policy as part of a broader picture of why the search was proportionate (rather than being decisive). Employers should therefore bear in mind that a policy permitting monitoring of company property may not, of itself, mean that all surveillance of an employee’s activity is automatically permissible.

Finally, it is worth noting the EAT’s approach to the evidence that should be provided to employees ahead of a disciplinary meeting. In particular, they focused on the fact that both the decision-maker and Mr Alom had been provided with the same evidence, and that the evidence which Mr Alom claimed had been withheld from him had not led to either of the disciplinary charges. This is a useful reminder for employers that if the decision to dismiss relies on documents which were not provided to the employee, this could have a considerable impact on whether a fair procedure has been followed.

Alom v Financial Conduct Authority [2025] EAT 138

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.

The recent case of Woodhead v WTTV Limited and anor reminds employers of the importance of handling disciplinary processes with sensitivity, especially when mental health issues are involved. Employers must act transparently, avoid unnecessary urgency, and adapt their approach once informed of an employee’s psychiatric vulnerabilities.

What happened in this case?

The Claimant was employed by the Respondent television company as its Managing Director.  In November 2019, he was selected for redundancy and his employment was due to terminate in May 2020.  On 28 November 2019, the Claimant was asked, without notice, to attend a “fact finding” meeting with the Director of Fair Employment Practices and the Director of Human Resources of NBC Universal International Ltd (NBC), being the Respondent’s majority shareholder.

At the meeting, the Claimant was informed that a freelance colleague, known as “NPQ”, had made complaints of sexual harassment against him.  He was not shown NPQ’s written complaint during the lengthy meeting.  Instead, the complaints were explained to him, and he was asked for his responses.  After the meeting, the Claimant was suspended pending further investigation. 

At the time of suspension, the Claimant suffered from long-standing psychiatric conditions.  He was a recovering alcoholic since 1991 and had been in therapy since 1992.  He suffered from compulsive sexual behaviour disorder, anxiety and depression and he had a history of self-harm.  After the meeting, the Claimant’s mental health rapidly declined.  He was signed off work with depression and anxiety from 3 December 2019 and diagnosed with “adjustment disorder” on 11 December 2019.  He was admitted to hospital for in-patient treatment on 13 December 2019.  He was discharged in January 2020 but treated for a further seven weeks as an out-patient and remained signed off sick until 8 May 2020, when his employment terminated by reason of redundancy.  The disciplinary decision was sent to him in September 2020.

The Claimant brought a personal injury claim (alongside other claims) in the High Court, arguing that the Respondent’s conduct of the investigatory and disciplinary process between 28 November 2019 and the end of September 2020 breached their duty of care not to expose him to a risk of psychiatric injury.

What was decided?

To succeed, the Claimant needed to show that:

• it was reasonably foreseeable that he could suffer an injury to his health attributable to the conduct of the investigatory and disciplinary process;
• the Respondent breached its duty of care to him by failing to take reasonable care to reduce or prevent the harm; and
• that breach of duty caused or materially contributed to the harm suffered.

Was the risk of an injury reasonably foreseeable?

The Judge determined that, as of 4 December 2019, it was reasonably foreseeable that the Claimant could suffer harm to his health from stress due to the process.  It was on this date that the Respondent received a letter from the Claimant’s psychologist stating that the Claimant was a recovering alcoholic and that this traumatic episode had destabilised him, causing a relapse of depression.  The letter said it was essential that treatment was effective and ongoing before the Claimant was subjected to further stress.  The Judge concluded that upon receipt of this letter, the Respondent was on notice that the Claimant suffered from long-term and serious mental illness and that there was a risk to his health by continuing with the disciplinary process.

If yes, did the Respondent breach its duty of care to the Claimant?

The Judge identified four significant failings in the Respondent’s conduct of the process, three of which were found to amount to breaches of the duty of care.

Failing 1 – The conduct of the investigatory meeting

First, the fact-finding meeting of 28 November 2019 was handled badly.  The Claimant was called into a lengthy meeting without notice.  He was not given a written copy or summary of the complaints.  He was not suspended pending an investigatory meeting (which would have been in line with NBC’s Disciplinary Policy).  Instead, the meeting was conducted as an investigatory meeting.  The Claimant clearly found it intensely distressing – he later said he experienced a “disassociative episode” in the meeting and was left “reeling”. 

The Judge observed that there was no reason why matters had to be dealt with in this way.  There was nothing that required urgency or a response on that day rather than a few days later.  It was not the approach of an employer acting reasonably and it had a particularly severe impact on the Claimant’s mental health.  However, this could not amount to a breach of the duty of care because it took place before the date on which the risk of harm became reasonably foreseeable (i.e. 4 December 2019).

Failing 2 – The conduct immediately following the meeting until 11 December 2019, when the process was suspended

On 29 November 2019, the Claimant’s solicitor wrote to the Respondent to ask for all communications to go to him and for the investigatory meeting to be rescheduled, this time with written notice of the questions.  He also said that the Claimant was suffering from stress, taking medical advice and may be disabled.  On 2 December 2019, the Respondent refused to reschedule the investigatory meeting but gave the Claimant until 4 December 2019 to comment on the investigatory report (a copy of which was sent to him later that day).  When the investigatory report was sent to the Claimant,the “findings” column was left blank – suggesting that all complaints against him were still live.  In fact, by the time the report was sent to the Claimant, the Respondent already knew that some of the complaints would not be taken forward.  It later emerged that this was not an inadvertent error.  Rather, the column showing the findings (including the findings favourable to the Claimant) had been deliberately removed.

The Judge criticised the Respondent’s imposition of a short deadline for a response; there was no sufficient reason for it and no cause for urgency.  Although the Respondent’s tactics were worthy of criticism, ultimately, the Judge held that it was not a breach of the duty of care to have continued with the process until 11 December 2019, after which the process was suspended in light of the Claimant’s hospitalisation.  However, the decision not to tell the Claimant that some of the complaints against him had been dropped was a breach of duty.  It gave a false impression of the extent of the matters that he had to respond to.  It would have been reasonable and appropriate to make clear that only part of the complaints would be going forward.

Failing 3 – Attempting to revive the disciplinary process when the Claimant was still on sick leave in February 2020

The Claimant’s sick note at the relevant time stated he was suffering from PTSD, anxiety and acute depression with suicidal ideation and receiving ongoing therapies/psychiatric treatment.  Nevertheless, the Respondent sought to revive the disciplinary process on 12 February 2020. The Claimant’s solicitor wrote on 13 February 2020 to remind the Respondent that the Claimant was still signed off and not able to engage in the process.  The Respondent continued to chase a response.

The Judge found that the Respondent’s approach was neither necessary nor reasonable and was a breach of duty.  It ought to have been clear that he was not fit to participate in the process and if there had been any doubt, the Respondent should have sought clarification from his doctor or referred him to Occupational Health.  The Judge discounted the Respondent’s suggestion that it needed to resume the process due to NPQ’s ongoing distress.  This was not borne out by evidence.  Emails from the time showed her to be lucid and clear-headed and preoccupied with seeking financial compensation.  There was no evidence of distress. 

Failing 4 – Pursuing an Occupational Health referral between 16 April 2020 and 8 May 2020

During this period, the Claimant was certified as sick.  Covid restrictions meant that any Occupational Health professional would not have been able to meet with the Claimant in person.  At best, it would have been a video call, which the Judge said was “highly unlikely” to afford any information sufficient to assess the Claimant’s state of health.  Yet the Respondent’s solicitor continued to pursue the point, even when asked to refer to the Claimant’s doctor instead.  No consideration was given to the Claimant’s circumstances, the fact of the lockdown restrictions or the option of getting information from the doctors treating the Claimant.

The Judge remarked the Respondent’s solicitor was pursuing an “entirely pointless” referral and appeared to be more concerned with form over function.  This was not a reasonable course of action and was another breach of duty.

If yes, did the breaches cause the Claimant’s injury?

Two of the three breaches were held not to have caused injury.

First, the attempts to revive the disciplinary process when the Claimant was still on sick leave in February 2020 did not materially add to the injury the Claimant suffered either by exacerbating or prolonging it. The issue had been dealt with by the Claimant’s solicitor and any distress that the Claimant experienced was not long lasting.

Second, the pursuit of an Occupational Health referral between 16 April 2020 and 8 May 2020 did not materially add to the Claimant’s injury.  It had been dealt with by solicitors and the requests were not communicated to the Claimant at the time.  He was only told when the issue had been dropped. There was no evidence that it had a significant impact on the Claimant.

However, the decision to mislead the Claimant about how much of the complaint against him remained live did cause injury.  The initial shock and breakdown he suffered was worsened by the perception of not being heard or understood by the Respondent.  This contributed to the existence and duration of the psychiatric condition.  The failure to inform the Claimant that the scope of the disciplinary proceedings against him had been narrowed materially contributed to his psychiatric injury.

What does this mean for employers?

Although the Claimant’s victory was limited to one point, employers should pay close attention to the Judge’s scathing comments about the employer’s conduct.  Importantly, this was a personal injury claim in the High Court, but the employer’s serious failings may have also provided a sufficient basis to claim constructive unfair dismissal and/or disability discrimination in the Employment Tribunal. 

• Remember your duty of care to employees accused of sexual harassment. Employers often feel under pressure to investigate allegations of sexual harassment promptly and robustly, however, this case reminds us that employers continue to owe a duty of care to the accused as well as to the complainant.  Investigatory and disciplinary processes should be approached with compassion, transparency, and fairness, particularly where an employee is known to be vulnerable. 

• Always follow a fair process. Sudden and lengthy investigatory meetings without prior notice or disclosure of allegations can be highly distressing. Similar issues arose in the case of Weir v Citigroup Global Markets Ltd, which drew criticism from the Employment Tribunal. Employers must follow their owndisciplinary policies, ensuring procedures are fair, consistent, and not unnecessarily urgent or onerous.

• Make adjustments to processes as needed. Once on notice of an employee’s mental health condition, takereasonable steps to prevent further harm.  Pursuing disciplinary processes despite clear medical advice that an employee is not fit to participate can constitute a breach of the duty of care.

• Transparency is critical. Failing to communicate that certain complaints had been dropped was found to be misleading and harmful. Misleading an employee in this way is also likely to amount to a serious breach of the duty of trust and confidence, meaning an employee could constructively dismiss themselves.

• Use Occupational Health appropriately. Occupational Health referrals should be meaningful and appropriate to the context.  If better information can be obtained from the employee’s own doctors, this route should be pursued instead. 

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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In University of Dundee v Chakraborty, the EAT held that legal advice privilege could not be applied retrospectively to the original version of a grievance investigation report where it had been amended afterwards by the Respondent’s legal advisors.

What happened in this case?

Mr Chakraborty was a post-doctoral research assistant at the University of Dundee.   On 10 November 2021 he raised a grievance, alleging racial abuse, harassment and bullying, including an allegation that his line manager had falsely accused him of fraud. An independent member of academic staff was appointed to investigate the grievance and create a report.

By the time the report was finished, Mr Chakraborty had already submitted claims for race discrimination and harassment. The University sought legal advice on the report before sharing it with Mr Chakraborty. Amendments to the report were suggested and these were sent to the investigator. The investigator accepted these and made further changes.

This amended version of the report was then shared with Mr Chakraborty and included within the trial bundle. The report stated “Note: This report was amended and reissued on 23.06.2022 following independent legal advice”.

On the first day of the Tribunal hearing, Mr Chakraborty made an oral application for disclosure of the original unamended version of the report. The University resisted this application contending that it was subject to legal advice privilege. It submitted that the production of the unamended version of the report would permit a comparison to be made between the two versions which could then enable inferences to be drawn about the legal advice that had been given to the University by its solicitors.

The Tribunal did not accept that submission and made an order for the original version of the report to be disclosed.

The University appealed on the grounds that:

• the Employment Judge had erred in law in rejecting the submission that the original version of the report was subject to legal advice privilege; and
• while acknowledging that no argument of litigation privilege had been advanced in the Tribunal, the report was confidential on the basis of litigation privilege.

The University accepted that neither legal advice privilege nor litigation privilege attached to the report when it was first created. However, it claimed that such privilege attached retrospectively to the unamended document because of the advice that was later given about its contents by the external solicitors and that it would be possible to infer the advice given.

What was decided?

The EAT dismissed the appeal.

The EAT commented that any legal advice given about the original document and any amended versions of the original document created for the purpose of litigation would plainly be privileged. Here, it found that the original report was created as part of an investigation of a grievance brought under an internal policy, rather than in contemplation of litigation.

Furthermore, the EAT could find no case law which supported the contention that privileged status could be acquired retrospectively.

As the original version of the report was not subject to privilege, retrospective application could not be applied. This was the case even if the consequence of disclosing the document might allow inferences to be drawn from the differences between the two versions. The EAT Judge noted that, in any event, it would be difficult to ascertain the advice as the investigator had made further changes to the report himself.

What are the learning points for employers?

This case shows that an underlying document cannot be rendered privileged simply because advice has subsequently been sought on its content.

Employers should remember that where a document is created as part of an internal investigation, rather than for the purposes of litigation, then legal advice privilege may not apply, and the document may be disclosable in a future dispute.

To benefit from legal advice privilege, employers should seek legal advice from a solicitor on the content of the document at the time that it is created. Further, employers should control the number of individuals the document is shared with and the number of versions of the document. It may also help to be open with employees at the outset that legal advice might be sought as part of the process.

University of Dundee v Chakraborty

BDBF is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Samantha Prosser (SamanthaProsser@bdbf.co.uk) Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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The Advisory, Conciliation and Arbitration Service (ACAS) has published new guidance for employers on how to handle staff suspensions. In particular, it focuses on suspension during investigations.

What does the guidance cover?

The new guidance addresses the following key areas:

• Deciding whether to suspend someone;
• The process for suspending someone;
• Supporting an employee’s mental health during suspension; and
• Pay and holiday during suspension.

What does the guidance recommend?

Because of the risk of breaching the employment contract, and the stress that can be caused, the guidance recommends that a suspension should only be used when it is a reasonable way of dealing with the situation.  This may apply where an investigation is being carried out and there is a need to protect evidence, witnesses, the business, other staff or the person being investigated and there are no appropriate alternatives.  A suspension may also be appropriate in order to protect an employee’s health and safety.

The key point is that employers should consider each situation carefully before deciding whether to suspend someone.

What are some of the alternatives to suspension?

Instead of suspension, ACAS advises that employers could require a worker to work:

• in a different part of the organisation;
• from home; or
• from a different office or site.

What does ACAS recommend that employers do to support suspended workers?

• Explain the reason for the suspension, making it clear that it does not mean that it has been decided that they have done anything wrong. Ideally this should be done in person.
• Explain that pay and benefits are unaffected.
• Keep the suspension as short as possible.
• Keep it confidential wherever possible and stay in regular contact throughout.
• It is good practice to allow employees to be accompanied at any suspension meeting and for the suspension to be confirmed in writing.

The ACAS guidance can be accessed by clicking here.

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Theo Nicou TheoNicou@bdbf.co.uk) Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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Employment Law News

 

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USE OF WHATSAPP MESSAGES TO BRING DISCIPLINARY PROCEEDINGS AGAINST POLICE OFFICERS WAS NOT A BREACH OF PRIVACY RIGHTS

The Court considered that there was a legal basis for the Police Service in Scotland to bring misconduct proceedings against individual police officers based on messages they had sent to each other on a WhatsApp group. This would not have applied had they not been under professional obligations to maintain standards.

An investigation took place into sexual offences within the Police Service of Scotland. During this investigation, messages sent via WhatsApp on a phone belonging to a suspect, who was a police officer, were found and reviewed. The messages formed part of two group chats between officers.

The messages were deemed “sexist and degrading, racist, anti-Semetic, homophobic, mocking of disability” and having a “flagrant disregard for police procedures by posting crime scene photos of current investigations.”

Misconduct charges were, therefore, brought against a number of officers who then brought a claim complaining that using their Whatsapp messages to bring non-criminal misconduct proceedings against them was unlawful and a breach of their rights to privacy under the European Convention on Human Rights.

The Court found that an ordinary member of the public using WhatsApp could have a reasonable expectation of privacy. However, unlike members of the general public, officers are subject to certain police Standards and Regulations. By becoming an officer, they have accepted that their right to privacy is limited to the extent set out in those regulations. If, in their private life, an officer were to act in such a way that it “is likely to interfere with the impartial discharge of his duties or is likely to give rise to the impression among members of the public” then they can have no reasonable expectation of privacy.

One purpose of the Standards is to maintain public confidence in the police. Here, the officers were exchanging messages within a group of people whom they knew were under a positive obligation under the Standards to report the type of messages that were being sent. This fact alone increased the risk of disclosure by a member of the group.

It was deemed to be justified to interfere with the right to private life in this way as it was necessary for public safety. An officer who fails to meet the Standards is likely to lose the confidence of the public. Since maintaining public confidence is essential for successful policing, anything which exposes a mind-set where the public’s right to be treated fairly is called into question and would put public safety at risk.

The Court was clear that for the average individual, who does not work in a regulated environment, messages such as these will remain private regardless of how unpalatable their content is. Nevertheless, for those subject to professional standards or working in regulated industries, there will be limits on the right to keep such messages private. This will include solicitors, barristers, doctors and financial services workers etc.

BC and others v Chief Constable Police Service of Scotland and others [2019] CSOH 48

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The EAT has clarified the circumstances in which an employee can fairly be dismissed for gross misconduct.

Gross misconduct is defined as conduct which is so serious that it undermines the employer’s trust and confidence in the employee and entitles it to dismiss without further notice. Usually, this will be a single, clear act of serious misconduct. However, the EAT has held that this need not be the case, and gross misconduct can be comprised of a series of acts of misconduct which would not be sufficient reasons to dismiss if taken individually.

The employer’s decision to dismissal summarily was found to be fair on the facts of this case. The employer was an NHS Foundation Trust, and it had introduced new Department Rules and Responsibilities to the Trauma and Orthopaedics department. Having notified all staff that compliance with the new rules would be monitored, a subsequent investigation found non-compliance by 5 consultants in the department. Disciplinary action against three of the consultants resulted in a first written warning, a final written warning and a resignation respectively. In contrast, the Trust concluded that the allegations against the fourth consultant, Mr Mbubaegbu, were cumulatively serious enough to justify summary dismissal on grounds of gross misconduct. This is despite the fact that Mr Mbubaegbu had previously worked for the Trust for 15 years with an unblemished disciplinary record.

The EAT held that Mr Mbubaegbu had not been unfairly dismissed. It stated that it was not necessary for an employer to point to a single act and identify it as gross misconduct, as a series of acts can be serious enough to undermine the relationship of trust and confidence between the employer and employee.

This case emphasised that the right way to look at a gross misconduct dismissal is to consider whether the employee’s conduct had undermined the employer’s trust and confidence in them. The misconduct does not necessarily have to take a particular form for that to be so. Fundamentally, this does not change the inquiry expected of the employer in relation to misconduct; it remains necessary in every case for an employer to keep an open mind as to the appropriate level of sanction, whatever the nature of the allegations against the employer.

Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/0218/17

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SMCR extension: now is the time for firms to prepare

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Following the FCA’s publication of its proposed extension of the Senior Managers & Certification Regime (SMCR) to include all financial services firms from 2018 (read more here), and the recent report highlighting the increase in FCA fines against individuals (read more here), now is the time for affected firms to take active steps in preparation.

The SMCR pervades many aspects of the employment relationship, from recruitment, to training, management, promotion and, if relevant, disciplinary and dismissal. Firms will need to:

• Produce and agree statements of responsibility;
• Review their employment contracts:
  • checking the terms allow them to impose necessary responsibilities on senior managers;
  • checking that they make the appropriate references to the need to comply with regulatory requirements under sanction of disciplinary action/dismissal; and
  • add requirements for advance FCA approval to be obtained and maintained in the case of senior managers, and for certification to be obtained and maintained in the case of those in certification functions;
• Give training to employees on the FCA’s Conduct Rules that will apply on an individual basis and ensure that staff handbook and compliance manuals reflect them. At a high level, the rules are:
  • 1: to act with integrity;
  • 2: to act with due skill care and diligence;
  • 3: to be open and cooperative with the FCA, PRA and other regulators;
  • 4: to pay due regard to the interests of customers and treat them fairly; and
  • 5: to observe proper standards of market conduct;
• Give training on the additional Conduct Rules that will apply to the employees the firm designates as senior managers;
• Consider offering those staff who are earmarked for senior manager roles the opportunity to obtain independent legal advice on their statements of responsibility and additional duties;
• Adapt their appraisal and disciplinary processes to ensure that any breaches of the Conduct Rules are identified, fed into the certification process, and where necessary are notified;
• Implement processes and procedures for the annual assessment and certification of fitness and propriety of employees carrying out certification functions;
• In their processes for giving references to new employers, build in compliance with the obligations to give regulatory references, and information relating to matters concerning the individual’s fitness and propriety; and
• Consider the application and consequences of the new rules when settlement agreements are being entered into with affected staff, particularly if there have been conduct or capability issues.

If you need help with any of the issues referenced in this article, please contact Nick.

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Can employers take into account expired warnings in deciding to dismiss?

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In some cases, an employer can take into account an employee’s history of expired written warnings in deciding to dismiss them following a further instance of misconduct.

Mr Stratford worked for Auto Trail VR Ltd from November 2001. He had 17 items on his disciplinary record, the most recent of which was a 3-month warning received in January 2014. All of the written warnings he had received had expired.

In October 2014, Mr Stratford had his mobile phone in his hand on the shop floor, which was strictly prohibited according to Auto Trail’s handbook. Following a disciplinary hearing, Auto Trail decided to dismiss Mr Stratford with 12 weeks’ pay in lieu of notice. It reasoned that, whilst the mobile phone offence was not of itself an act of gross misconduct (particularly given that there were some extenuating circumstances), it was the eighteenth time his behaviour had attracted formal action. If it gave Mr Stratford another chance, there was nothing to suggest that there would not be a similar situation in future.

Mr Stratford brought a claim in the Employment Tribunal alleging unfair dismissal.

The Employment Appeal Tribunal held that the dismissal was fair. An employer (and an Employment Tribunal in determining the claim) need not always totally disregard expired warnings. It was open to them to take into account all of the relevant circumstances, given the broad wording of the legislation on unfair dismissal. An employee’s disciplinary record is among those circumstances – an employer need not disregard it simply because the respective written warnings have expired.

However, the facts of this case were quite extreme and circumstances where expired warnings can be relied on will continue to be the exception, not the rule. In general, expired warnings will not be relevant unless the act under consideration is already sufficient to justify dismissal and the employer is taking the older offence into account only in deciding whether to exercise leniency.

Stratford v Auto Trail VR Ltd UKEAT/0116/16

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How to investigate serious allegations of misconduct

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Where the allegations of an employee’s misconduct are particularly serious (especially if they are career-ending), a higher standard of disciplinary investigation is necessary to ensure a fair dismissal.

Ms Tykocki had been employed as a Healthcare Assistant for 14 years at an NHS Trust. A patient made a serious complaint about two “nurses”, one of whom was identified as Ms Tykocki. The patient said that she had not been given morphine and was left in serious pain. After begging for morphine for around an hour, the patient said that Ms Tykocki came around the curtains on her bed, put her hand over her mouth and told her to ‘shut up’. The patient then said Ms Tykocki leant in close to her face and invited her to report her.

Ms Tykocki denied all allegations and was suspended whilst the Trust investigated. It interviewed the patient, Ms Tykocki and the other staff on duty, but did not give notes of those interviews to Ms Tykocki.

Disciplinary proceedings were commenced, following which Ms Tykocki was dismissed for gross misconduct. She appealed the decision. A further meeting was held with the patient and Ms Tykocki’s union representative was permitted to attend on her behalf. At this meeting, the patient raised a number of new allegations surrounding that incident. The appeal was dismissed and Ms Tykocki brought an unfair dismissal claim.

The Employment Appeal Tribunal found that there were serious defects in the Trust’s investigation and disciplinary process. The extent of the investigation needed to be appropriate to the seriousness of the allegations (which essentially amounted to assault and would be career-ending). The Trust had failed to give to Ms Tykocki the transcripts of the interviews with the other nurses on duty, which could have been exculpatory given that none of them had seen anything. Also, the Trust failed to investigate the further allegations raised by the patient at the appeal stage.

The EAT emphasised that it is the overall fairness of the procedure from start to finish which is relevant. This means that employers should conduct the entire process to a high standard and collect all relevant information, as opposed to relying on an appeal to remedy any earlier defects.

Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust UKEAT/0081/16

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How to dismiss an employee who has a prior written warning

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An employer should be wary of relying upon previous unfair disciplinary sanctions to justify a subsequent dismissal.

Mr Bandara worked for the BBC for 18 years, most recently for the Sinhala Service as a Senior Producer. He had an unblemished disciplinary record. In March 2013, he shouted at a colleague, and in July 2013, he defied his manager’s request to prioritise a news story about Prince George’s birth over a story about Black July (a time of remembrance in Sri Lanka for victims of anti-Tamil violence). A disciplinary procedure was commenced in relation to both incidents and, as a result, Mr Bandara was handed a final written warning in November 2013 to remain on file for 12 months.

A little later, a further investigation was carried out into allegations that Mr Bandara had bullied and intimidated his colleagues, created a ‘culture of fear’ in the office and disobeyed instructions. Following a disciplinary hearing, and taking into account the previous final written warning, Mr Bandala was dismissed in August 2014 on the grounds of gross misconduct. Mr Bandala claimed that the dismissal was unfair.

The Employment Appeal Tribunal upheld a decision that the prior final written warning was manifestly inappropriate in the circumstances. The decision as to whether Mr Bandara’s dismissal was fair overall must be considered in the light of that. If the prior written warning was solely background, and the later conduct was enough by itself to justify dismissal, the dismissal could be fair. However, if the unfair warning was relied upon, the EAT remarked that it would be hard to see how the dismissal decision could be reasonable.

In the light of this case, employers seeking to rely on a prior disciplinary sanction to support a dismissal decision should think critically about how the dismissal decision is worded; where there are multiple factors influencing the decision (such as a prior warning) the best approach is to try to cover both bases. One could say that whilst it is believed that the final act of misconduct was of itself gross misconduct and justified immediate dismissal, even if that were not the case, the combination of that act in the light of previous warnings was also sufficient to justify summary dismissal.

Bandara v British Broadcasting Corporation UKEAT/0335/15

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To which cases does the Acas code apply?

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The Acas Code of Practice on Disciplinary and Grievance Procedures does not apply to cases where there is no culpability on the part of the employee, including where the dismissal is on ill health grounds or due to a breakdown in the working relationship.

In Holmes v Qinetic, Mr Holmes was employed as a security guard but problems with his back, hips and legs meant he had extended absences from work. Qinetic later decided to dismiss Mr Holmes on ill health grounds as he was no longer capable of performing his duties. Qinetic accepted that the dismissal was unfair. Mr Holmes argued that an uplift should be applied to his compensation to reflect the fact that Qinetic did not follow the Acas Code.

The Employment Appeal Tribunal held that the Acas Code could not apply. The Code was intended to cover situations where the employee is facing an allegation which could lead to a disciplinary procedure. In a case where illness precludes the employee from doing his job, there could not be said to be culpability which requires sanction.

In Phoenix House Ltd v Stockman, Ms Stockman was employed as a Financial Accountant by Phoenix House, a charity. After the charity was restructured, her role was lost and she applied internally for other positions. The role she was given, Payroll Controller, was more junior. Ms Stockman felt she had been treated unfairly in the process by the Finance Director, Mr Lambis, and lodged a grievance critical of him. She later confronted him whilst he was in a meeting and was subjected to a disciplinary procedure for misconduct. Whilst she was on sick leave, Ms Stockman’s grievance was dismissed and she was given a 12 month written warning.

After unsuccessful appeals and a mediation, the charity asked Ms Stockman (who was still on sick leave) to attend a formal meeting to discuss whether the employment relationship had irreparably broken down. At the meeting, Ms Stockman said she wanted to return to work and that she would be able to work with Mr Lambis. The charity decided to dismiss Ms Stockman on the basis that the working relationship had broken down without hope of repair.

The Employment Appeal Tribunal held that, whilst Ms Stockman’s dismissal had been unfair, it was not a case to which the Acas Code could apply. Whilst certain elements of the Code could be used in a situation such as this, it makes no express provision for dismissals of this type so a Tribunal cannot impose a sanction for failure to comply with it.

Whilst these decisions are helpful, employers should always apply their minds to whether the Code applies in each individual case. Even if employers are under no legal obligation to follow it, the Code remains good practice and it may be that some aspects of it can be applied.

Holmes v Qinetic Ltd UKEAT/0206/15 and Phoenix House Ltd v Stockman and another UKEAT/0264/15

 

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