A strategy for dealing with informal complaints of bullying

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Employment Law News

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A strategy for dealing with informal complaints of bullying

The Home Secretary, Priti Patel, has avoided being sanctioned for bullying on the grounds that no formal complaints were made against her at the time and she was unaware of the impact of her behaviour. In this article, we consider the learning points for employers and suggest a strategy for dealing with “off the record” complaints of bullying.

Why is bullying in the news again?

As national anti-bullying week drew to a close, news broke that a Cabinet Office inquiry had found evidence that the Home Secretary, Priti Patel, had bullied staff and broken the ministerial code. The alleged behaviour included shouting, swearing, belittling people and making unreasonable demands.

It later emerged that Ms Patel had a history of such behaviour. In 2015, Ms Patel was accused of bullying a civil servant in the Department for Work and Pensions – the case was kept out of the press after a settlement payment was made to the victim. In 2017, civil servants at the Department for International Development alleged that Ms Patel had humiliated civil servants in front of colleagues.

The Cabinet Office inquiry found that Ms Patel was “action orientated”, could be “direct” and felt justifiably frustrated with civil servants on occasions. However, this manifested itself in “forceful expression, including some occasions of shouting and swearing” which had upset staff. The inquiry noted that Ms Patel had failed to treat her civil servants with consideration and respect and that her approach amounted to “…behaviour that can be described as bullying in terms of the impact felt by individuals”. It concluded that such behaviour breached the ministerial code, even if this was unintentional.

Yet her boss, the Prime Minister, declined to sack Ms Patel, instead suggesting that the victims and their managers were at fault for failing to complain formally about the bullying at the time. He pointed to the fact that the inquiry had found that no feedback had been given to Ms Patel regarding her behaviour and that she was “…unaware of the issues that she could otherwise have addressed”.

Why is the Priti Patel case of interest to employers?

What’s interesting is that the explanation given for Ms Patel escaping serious sanction was that the alleged victims did not raise bullying complaints at the time. She was, therefore, unaware of the impact of her behaviour and unable to take corrective action. In the employment context, it is questionable whether such a defence would hold water – particularly as most employers will have a written bullying and harassment policy in place which stipulates which forms of behaviour are unacceptable in the workplace (and this would usually include things like shouting, swearing and belittling colleagues).

Yet it’s also true that grey areas do exist. What may be considered as firm management action by line managers, may be viewed as oppressive behaviour by their subordinates. It’s particularly easy to envisage how such scenarios could arise amongst staff working at home during the COVID-19 pandemic. With staff at a physical distance, there is a lower risk of flashpoints of aggressive behaviour, however, remote bullying can manifest itself in other forms, for example, micromanagement, exclusion from virtual meetings or by sending tersely worded communications. Further, small issues may fester in a remote working environment, where face to face contact is limited and the usual social bonds that bind teams together are absent.

In such circumstances, unless perpetrators are made aware of the impact of their behaviour, they will be unable to take steps to correct it. Therefore, it’s important for employers to support employees to come forward with bullying complaints. However, a common problem that employers face in these kinds of situations is that the victim does not want to “rock the boat” and so will seek to make an informal or off the record complaint.

This puts the employer in a difficult position. On one hand, they are now on notice of the alleged bullying and may be exposed to risk if they do nothing. On the other hand, the victim does not want them to take action.

How should employers respond to informal complaints of bullying?

There is no “one size fits all” answer to the question of how an employer should respond to such a complaint. In practice, employers will need to grapple with a number of preliminary questions in order to decide upon a suitable response.

Is it bullying and is it a grievance?

In contrast to the related concept of discriminatory harassment, there is no legal definition of bullying. The non-statutory Acas Guide for Managers and Employers on Bullying and Harassment at Work offers a wide-ranging definition of bullying as: “Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”. It is not necessary for such treatment to be related to a protected characteristic under the Equality Act 2010. As above, the employer’s internal policies will usually spell out what types of behaviour may be viewed as bullying.

The statutory Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) defines grievances as:“…concerns, problems or complaints that employees raise with their employer”. This very broad definition means that any disclosure by employees that they are (or someone else is) being bullied at work would be a grievance for the purposes of the Acas Code.

In short, the learning point is that even an informal complaint about bullying may amount to a grievance requiring some form of response from the employer. In appropriate cases, it may be that the response is limited to informal resolution. However, what an employer should not do is park the matter and hope that it blows over. Action of some sort will almost always be required.

What is the employee trying to achieve?

In deciding upon the right strategy, it’s helpful for the employer to try to understand the employee’s underlying motivation for raising a complaint that they say they simply want “noted”.

Employers should not be tempted to avoid dealing with a complaint simply because it’s felt that an overly sensitive employee is “venting” and looking for moral support. However, it may lead an employer to favour an informal response. Where matters appear to be relatively minor, and the employee over-sensitive, resolution with the support of HR may be all that’s required to get things back on track.

Yet employers should exercise caution when making such assessments and ensure that they build up a full picture of what has happened. As the Acas Guide to Bullying highlights: “People being bullied or harassed may sometimes appear to overreact to something that seems relatively trivial, but which may be the last straw in a series of incidents”. Indeed, in the case of Green v DB Group Services (UK) Ltd [2006] EWHC 1898 (QB) the High Court held that the cumulative effect of the alleged conduct had to be considered, rather than individual incidents. In that case, Ms Green was subjected to a long-term campaign of mean and spiteful behaviour which included actions such as blowing raspberries as she walked by, telling her she “stank”, removing her image from the company intranet and hiding her work. In isolation, acts of this nature may seem relatively minor but, together, they will expose the employer to significant risk if no action is taken. In Green, the bullying campaign led Ms Green to have a nervous breakdown and she was award £817,000 in damages.

Alternatively, by raising a bullying complaint informally, the employee may be preparing the ground for a future formal grievance if the behaviour continues. The ability to refer to earlier examples of bullying behaviour would strengthen a future complaint by helping to demonstrate that there has been a campaign of bullying.

What legal claims could the employee have?

Although there is no express legal claim for bullying, there are a suite of other legal claims available to an employee who has been the victim of bullying including claims for:

constructive dismissal;
personal injury;
failure to make reasonable adjustments (if disabled);
discriminatory harassment (if the bullying relates to a protected characteristic such as sex, race, age, religion, sexual orientation);
victimisation (if the bullying followed a protected act such as complaining of sexual harassment);
whistleblowing detriment (if the bullying was as a result of the employee raising concerns about, for example, regulatory breaches); and/or
harassment under the Protection from Harassment Act 1997.

When deciding on how to respond to an informal bullying complaint, employers should, as far as possible, consider the exposure to these legal claims. The more serious the complaint, the higher the legal risk and the more likely it is that the employer will need to pursue a formal approach.

What other factors are important?

Employers should consider other issues such as compliance with internal policies and procedures, and also with a regulator’s expectations, if applicable. By way of example, financial services employers subject to the Financial Conduct Authority’s (FCA) Senior Managers and Certification Regime must assess “senior managers” and “certification employees” to be “fit and proper”. The “fit and proper” test focuses on honesty, integrity and reputation amongst other things. Accordingly, allegations of bullying may mean that a Senior Manager or a Certification Employee is not fit and proper. Where such allegations are raised, it is imperative that the employer investigates to decide whether those allegations are well-founded and should be reported to the FCA.

Employers should also consider the wider consequences for their organisation of leaving bullying unchecked. The Acas Guide to Bullying highlights that the problem can fester and cause serious problems for the employer including poor morale and employee relations; loss of respect for managers and supervisors; poor performance; lost productivity; absences; resignations; and reputational damage.

What are the employer’s options?

The employer should consider all of these preliminary issues in light of the precise nature of the complaint, including the severity of the alleged bullying, the length of time it has been going on, the number of victims and the seniority of the perpetrator. They will then be in a position to form a view about what steps to take in response. There are four possible options.

Option 1 – Note the complaint and do nothing else: this is a high-risk option and should be avoided in most cases.
Option 2 – Informal resolution: where the complaint appears relatively minor, a better option for the employer would be to propose some form of informal resolution such as a supported discussion or mediation.
Option 3 – Formal procedure with the employee’s participation: in more serious cases a formal investigation should be undertaken. This is the only route by which the employer can reach a conclusion on whether the allegations are true or false and issue sanctions and take remedial action.
Option 4 – Formal procedure without the employee’s participation: there may be cases where the employee is unwilling to pursue a formal complaint under any circumstances. This puts the employer in the difficult position of having to go against the employee’s wishes. However, in serious cases the risk of doing nothing is too high. Inaction jeopardises the health and safety of the employee (and possibly other employees), fails to afford the perpetrator the chance to explain their behaviour and exposes the employer to legal risk and possibly regulatory censure.

The issues in this article were considered in greater depth in a recent presentation we gave at the White Paper Dismissal Conference 2020. If you would like a copy of that presentation and the associated discussion paper please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Are the days of the office romance numbered?

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Employment Law News

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Are the days of the office romance numbered?

A recent survey by Totaljobs of almost 6,000 UK workers revealed that 66% of them had either dated, or considered dating, a colleague and 22% went on to meet their partners or spouses through work. Yet earlier this month, the CEO of McDonald’s, Steve Easterbrook, was dismissed after it came to light that he had a consensual romantic relationship with a colleague. In this briefing we explain what went wrong for Mr Easterbrook and how employers might choose to approach the sensitive subject of romance at work.

What happened at McDonald’s?

McDonald’s had a ‘Business Conduct Standards Policy’ which provided that: “In order to avoid situations in which workplace conduct could negatively impact the work environment, employees who have a direct or indirect reporting relationship to each other are prohibited from dating or having a sexual relationship”. The Policy went on to say that: “It is not appropriate to show favouritism or make business decisions based on emotions or friendships rather than on the best interests of the company”. The Policy also required an employee who had entered into such a relationship, or who was contemplating doing so, to notify HR immediately.

The Board of McDonald’s reviewed the matter and concluded that Mr Easterbrook had violated company policy and demonstrated poor judgement. In his departure email to colleagues, Mr Easterbrook held his hands up and said: “Given the values of the company, I agree with the Board that it is time for me to move on”.

Interestingly, the day after Mr Easterbrook’s departure, McDonald’s Chief People Officer, David Fairhurst, also left the business. Although McDonald’s has declined to comment on the reasons for Mr Fairhurst’s departure, it has been suggested by Mr Fairhurst’s family that he was sacked because he knew about Mr Easterbrook’s romantic relationship and failed to do anything about it.

What are the risks arising out of personal relationships at work?

The Easterbrook affair took place in America. Would it have been any different in the UK? Of course, we have legislation prohibiting sexual harassment at work (where one party’s advances are unwanted by the other party). A breach of those rules could well result in the instant dismissal of the perpetrator. However, there are no specific employment laws prohibiting consensual relationships at work.

Nevertheless, romantic relationships at work can present difficulties for employers, notably the risk of a conflict of interest if one party has managerial responsibility for the other. The more senior party could easily end up in a situation where his or her loyalties are divided between the company’s best interests and those of their partner, for example, when conducting an appraisal or pay review. In this situation the manager is certainly under an obligation to disclose the potential conflict.

Such a situation could also prompt complaints of bias and favouritism and lead to decreased morale amongst other workers. It is also quite likely to generate office gossip and could lead to other unpleasant behaviours such as cold-shouldering of one or both members of the couple.

There is also the risk of negative fallout if the relationship breaks down. For example, if one party tries to pressurise the other into getting back together this could give rise to a sexual harassment claim.

How can an employer mitigate such risks?

An outright ban on personal relationships at work is probably unrealistic give the statistics cited at the beginning of this article. Such a draconian step may also be unlawful since it is likely to represent an unjustifiable interference with an employee’s right to a private and family life.

A better approach would be to attempt to regulate the conduct of personal relationships at work by putting in a place a “Personal Relationships at Work” Policy. Such a policy should set out the expected standards of behaviour and, if breached, can be used as a basis for disciplinary action.

What should such a policy cover?

It should define what is meant by a “personal relationship” and clarify that this covers both formal relationships, such as spouses, civil partners or cohabitees, but also less formal relationships, such as boyfriends/girlfriends and more casual relationships. It could even cover platonic personal relationships.
It should explain why the policy is necessary by highlighting risks including but not limited to: potential conflicts of interest; the risk of bias in managerial decisions; the risk of discrimination or harassment; the potential adverse effect on other staff members; and the potential negative impact of a relationship breakdown.
It should set out guidelines for managers on how to deal with a personal relationship arising between team members. Managers should be required to notify HR of any issues connected to personal relationships between their team members. They should also be reminded that no detrimental action should be taken against the couple just because they are in a relationship – this could be unfair and/or discriminatory. They also need to treat both members of the couple equally, as a failure to do so could also be discriminatory. However, managers should be required to assess whether the relationship is negatively affecting productivity and, if it is, take appropriate action.
It should set out the behavioural standards expected from those entering into a personal relationship at work. For example, this should require the parties to conduct themselves in a professional manner in the workplace and ensure that rules on confidential information are not breached in the context of a personal relationship.
Crucially, the policy should include a McDonald’s-style clause requiring a party who enters into a personal relationship with either their subordinate or manager (or any other member of staff where there is a potential conflict of interest) to disclose the fact to HR as soon as possible. The policy should also address how the company may respond to such a disclosure (e.g. moving one of the parties to a different role or putting in place other safeguards).

BDBF can help you prepare a Personal Relationships at Work Policy. If you would like to discuss how we can help, please contact Amanda Steadman or your usual BDBF contact.

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Are some job adverts discouraging women from applying?

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It is now well known that advertising a vacancy for a “barmaid” or a “handyman” would discriminate against applicants of the opposite sex. When Human Rights Watch called out a number of Chinese tech companies for advertising for “men-only” and “men preferred” roles, the discrimination was obvious to all.

Gender-biased phrasing in adverts

However, discrimination is rarely this blatant. We all use language that is subtly ‘gender-coded’, and reinforced by societal expectations and behavioural norms associated with what men and women are like. ‘Bossy’, for example, is a word rarely ever used to describe men. Adverts may also be “gender-coded”, i.e. hinting towards a male or female applicant. Totaljobs has published its analysis of 75,000 job advertisements, and it shows that gender-biased phrasing is fairly common.

Male and female-oriented phrasing

In terms of male-oriented phrasing, Totaljobs found that the three most frequently-used words are: lead (mentioned 70,539 times); analyse (35,339 mentions); and competitive (23,079 mentions). The three most commonly used female-related words were found to hbe: support (used 83,095 times); responsible (with 64,909 mentions); and understanding (29,638 uses). Totaljobs also reported that male-oriented language was more frequently used in advertisements for senior positions, such as ‘head’ roles, directors, and partners; on the other hand, the language in advertisements for “assistant” roles leaned heavily toward female-associated language.

The recent publication of large companies’ gender pay gap data revealed significant differences between male and female pay in many instances. Employers with large gender pay gaps have often explained it on the basis that their more senior positions are occupied by men, bringing up the average for male pay.

Under-representation of women in senior roles

Could the way that companies are advertising for senior roles help to explain why women are under-represented at executive level? Totaljobs believes so, concluding that women are hesitant to apply for roles which are worded in a way which appeals to male applicants (albeit unintentionally).

Employers are under increased scrutiny in respect of equality and diversity – for example, the Investment Association recently wrote to a selection of FTSE 350 firms to inform them that shareholders are getting “restless” at the lack of female representation on company boards.

That being the case, a prudent employer may want to take a step back and think about whether the way they advertise job vacancies contains any inadvertent stereotyping or bias. In order to help employers with that process, Totaljobs has created a tool it calls the “Gender Bias Decoder” which will flag any gendered words in a text. Anything the tool flags up can be re-worded to sound more gender-neutral.

ACAS guidance on job advertisements

ACAS also recommends that employers or recruiters include in any job advertisements a statement that applications are welcome from all sections of the community, as well as reinforcing the employer’s commitment to equal opportunities.

Small steps can lead to big changes. If employers begin to gender bias de-code their job advertisements to encourage female applicants to put themselves forward for more senior, better paid positions, they may find that their gender pay gap figures start to improve in coming years as women begin to fill the ranks of those senior, better paid jobs.

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What all HR and People Managers should know

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From interesting discussions with a range of employment lawyers on EU law and Brexit, to honing communication and presentation skills whilst chanting ‘Mary had a little lamb’ with the whole BDBF team, my week work-shadowing in London’s leading employment law firm has certainly been a great and varied experience.

I previously worked as an Area Manager in a leading supermarket chain which, unlike most big companies, did not have a designated HR department. Therefore, as Personnel Leader to over 120 people, I was responsible for hiring, firing and everything in between. During my 3 years there, I attended multiple employment law courses, which I found incredibly interesting. So when I resigned and had the opportunity to get some experience at BDBF to explore a future career in law, I jumped at it.

Top Tips

From my experience, once a case gets into an employment lawyer’s hands, it usually means that there is a complexity which requires further guidance. I’ve realised my previous employment training was pretty good, and I managed to steer clear of having long conversations with great lawyers such as that at BDBF. So here are a few things I learnt along my management journey, which have been further realised by my work experience here:

Ensure you maintain full concentration when processing every recruitment application – it can be tough when you have hundreds to view, however, as I have learnt this week, a case of discrimination for an application not getting shortlisted can escalate to an Employment Tribunal.
To avoid employment issues escalating, deal with interpersonal concerns as soon as possible. Informal conversations and resolutions can go a long way to avoiding formal grievance or disciplinary proceedings.
Even during informal conversations, make note and document everything said with the individuals in chronological order. This will help you explain your case clearly and objectively.
The formal disciplinary and grievance procedures are in place for a reason. Once informal resolutions have been exhausted, these procedures should be carried out quickly and professionally. Don’t let investigations go on for weeks. Make it your priority, as the longer it takes, the more uneasy all parties feel.
Disciplinary or grievance hearings can be daunting for both employees and employers. Role playing with colleagues or your lawyers is a great way to go through the formalities of the hearing as well as practising the handling of different situations before they arise.
Get employment law advice. With a big focus on costs in businesses, lawyers are usually a last resort. However, having shadowed at BDBF, their fountain of knowledge can provide reassurance if there is anything you are unsure of with regards to employment law, and will give you sound advice as to how to proceed.

Phoebe Fisher

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Up to snow good – employment law tips for employers in the aftermath of Snow-maggedon

Have you been affected by no-show employees this week as a result of snow-maggedon? Are you unsure about whether you need to pay staff who didn’t show up? If so, read on for our FAQ Guide on the law and best practice in this area.

Can employees legally refuse to come to work in adverse weather?

Not without potential consequences

If the place of work remains open then there is no automatic right for employees to refuse to attend in bad weather. Technically, failure to turn up without agreeing this in advance is an unauthorised absence. You could discipline in those circumstances (although that’s unlikely to be advisable other than in specific circumstances).

There are a couple of exceptions and other elements to think about:
- You may have a policy setting out what employees need to do in this situation and if that policy says otherwise, that will prevail;
- If employees are on pre-arranged leave (sickness or holiday) their leave is unaffected;
- Employers have a duty to provide a safe place of work – forcing employees into the office in treacherous conditions may fall foul of this. You need to think particularly about disabled employees, pregnant employees etc.

Should I pay employees who didn’t attend work?

If employees didn’t turn up to work, and hadn’t agreed this in advance with you, they didn’t meet their end of the bargain and aren’t entitled to be paid.
This is subject to any specific terms to the contrary in their contract of employment, or a company adverse weather policy. You also need to ensure that you treat everyone consistently so its best to have a ‘party line’ rather than to determine individual cases one by one.
Legalities aside, common sense should prevail, and employers are well advised to take a more balanced approach and look at work-arounds such as working from home, or making up hours elsewhere, to avoid an unhappy workforce and often because managers themselves can’t make it into the office either.
You should also bear in mind that whilst you may be legally entitled to withhold pay, if employees weren’t warned about it in advance they are likely to feel aggrieved if you subsequently dock pay.

Can you force employees to take the leave as holiday?

Technically, not – unless it is pre-planned in advance. This is because the rules on holiday provide that an employer must give double the length of time they want employees to take in annual leave. So for 1 days’ annual leave you would have to give 2 days’ notice.
That said, you can always propose this as an option and – if it is agreed by employees – it is a win/win situation – employees still get paid, but they take a day out of their overall annual allowance.
You can also pre-empt issues for next time we are hit with a “Beast from the East” by notifying employees as soon as there is a forecast of bad weather likely to affect travel, that any non-attendance will be taken out of holiday entitlement or putting this in an adverse weather policy.

What about if the business decides not to open or to close its doors early?

If it is the employers’ decision to close the workplace and workers are otherwise ready, willing and available to work they will usually be entitled to their normal pay.

What happens if school closures meant employees couldn’t come to work?

Employees have a right to take time off in an emergency situation involving a dependent which would include children and would almost certainly apply in these circumstances.
The statutory right is to unpaid leave, but you might have an internal policy on time of for dependents which provides otherwise.

Can I discipline employees who didn’t turn up this week?

If they did not agree this in advance, and there is no adverse weather policy stating otherwise, technically you could take disciplinary action. However, think carefully about doing so.
The weather this week has been extraordinary, and unpredictable. Many employees will have genuinely been unable to get to work due to transport failure or childcare issues for which disciplinary action would be inappropriate, and applying different treatment to different employees is likely to give rise to grievances and an unhappy workforce.
You would be better off preparing the business for next time around, either by publishing an adverse weather policy or by sending out a circular email to your workforce drawing a line under this week and setting out guidance for next time around. We would be happy to help with this.

If you would like further advice on this issue, or specific circumstances, please get in touch with Polly Rodway (PollyRodway@bdbf.co.uk) who appeared on the Victoria Derbyshire show on BBC 2 discussing these issues on Thursday 1 March 2018.

Polly Rodway appears on the BBC Victoria Derbyshire show on the employment law implications of Storm Emma

How did the snowman get to work? By icicle. Boom boom. Polly Rodway, Partner at BDBF LLP live on the BBC Victoria Derbyshire show advised on the implications of the severe weather on employment law rights and entitlements. For employers or senior executives considering these issues, please do contact Polly on pollyrodway@bdbf.co.uk

Employee Monitoring in Financial Services Firms

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Employee Monitoring in Financial Services Firms

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The FCA has announced an increase in the number of financial services firms who must record communications made by their employees.

The announcement is part of the FCA’s attempts to align financial firms with Brussels rules, known as Mifid II. In spite of Brexit, the FCA has told firms that they must continue to comply with their obligations that derive from EU law, including Mifid II.

Who is affected by this announcement?

Anyone who works for an investment bank or asset manager, inter-dealer brokers, investment managers, stockbrokers and corporate finance firms that execute orders or carry out transactions for the firm or its clients.

What has changed?

Firms who were not previously subject to the duty to tape telephone conversations (such as corporate finance firms) are now required to do so.

How could employers monitor their employees?

Financial firms have sophisticated computer programs in place which record telephone lines, check emails for key words and look out for suspicious trading behaviour. It is not uncommon for an employer with an agenda to trawl through an employee’s emails or Bloomberg chat records to find something damning. Of increasing prevalence is keystroke technology, which records all of the words typed onto a keyboard during the working day.

Even personal mobile phones are not immune from employer’s prying eyes. Employers in the financial services industry have an obligation to make sure that employees are not using their personal communication devices to evade FCA rules or share confidential client information.

What are the implications?

Employees who misuse their employer’s electronic communication systems – by disclosing confidential client information, for example, could face disciplinary action, which could include dismissal without notice and significant financial consequences including loss of stock and deferred bonuses arising from being a bad leaver. Additionally, there are the longer-term consequences on an employee’s regulatory status. If the monitoring uncovers behaviour which the employer considers is a breach of the conduct rules or stains that individual’s fitness and propriety, it will be revealed on a regulatory reference to any new employer and the taint may follow the employee for the next 6 years.

What are employee’s rights and employer’s obligations?

Even though an employer may have a duty to monitor calls, they still need to approach the matter with caution.

Employers have legal duties to ensure that the way in which they monitor work is for a clear and justified purpose. This requires notification in advance of monitoring, and the information gained should be kept securely and only used for the purpose for which it was carried out.

If an employee is approached by their employer and asked to hand over their personal phone for inspection, the employee needs to think very carefully before doing so. Is there a legitimate reason to search a personal telephone? What is the employer’s basis for doing so? Employees have a right to a private life and the employer cannot, without good reason, ride roughshod over that right. The employer should not be acting in any way that would seriously damage or destroy the employee’s confidence or trust, unless it has reasonable cause.

The employee must weigh up the risks of not complying with their employer’s request. A refusal to do so could count against the employee in a disciplinary hearing. Even if the employer’s concerns are baseless or overblown, a refusal to co-operate in the investigation is likely to be sufficient to fuel the suspicion that the employee has done something wrong.

For all financial services employees, this does beg the question whether work communications on a private phone, even in an end-to-end encrypted service like WhatsApp, can ever be private.

Paul McAleavey is a Senior Associate specialising in employment law and misuse of confidential information cases at City employment law firm Brahams Dutt Badrick French LLP.

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“Overqualified” or too old for the job?

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“Overqualified” or too old for the job?

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It’s common knowledge that some employers try to recruit in their own image (whether lawful or not). Job advertisements and person specifications can be used to pinpoint particular demographics, and in particular, certain age groups. Advertising for a candidate who is active, energetic and computer-savvy? Chances are, you’re looking to hire someone young.

An employer’s decision to say in clear terms that they want someone with “youthful enthusiasm” (McCoy v James McGregor & Sons Limited 00237/07IT) or a “younger, entrepreneurial profile” (Beck v Canadian Imperial Bank of Commerce ET/2328832/08) will at the least raise a presumption that the employer has directly discriminated on the basis of age.

A less obvious way in which age discrimination can creep into recruitment is via the imposition of experience requirements. Asking for someone with at least 10 years’ experience will probably exclude candidates in their 20s. Equally, saying that candidates should have 5 years’ experience or less will make it more difficult for older candidates to comply. Such requirements are likely to be indirectly discriminatory on age grounds unless they are objectively justified.

An example of a non-discriminatory experience requirement can be found in Jones Care UK Clinical Services Ltd ET/3302973/2015. Mr Jones (who was 51) had applied for the role of marketing services executive, which reported into the marketing services manager. The person specification asked for at least 2 years’ experience and a relevant degree. The company decided that Mr Jones would not be the best candidate and offered the job to someone else (who was aged 29). Mr Jones claimed he had been discriminated against on grounds of his age. The company denied this, stating that his age played no part in the selection process and that his responses in interview suggested that his skills were beyond what was needed. His expectations were also higher than the constraints of the role could permit.

The employment tribunal dismissed the claim, finding that Mr Jones’ “previous senior roles, high-level qualifications and extensive experience might unbalance the marketing team and undermine other team members whose qualifications and experience were of a much lesser order”. It also found that there was a risk of Mr Jones becoming frustrated in the role, particularly given the lack of scope for career progression.

On the other hand, in Rainbow v Milton Keynes Council 1200104/2007, a role which specified that it “would suit candidates in the first five years of their career” was discriminatory. The tribunal had no problem finding that the requirement put older applicants at a particular disadvantage, given that applicants in their 60s (Ms Rainbow included) were more likely to have lots of experience. The employer’s reason for wanting someone younger – which was that they were cheaper to employ – was not sufficient justification.

Essentially, the safer course for employers is to only ask for what you need from a candidate. Where a quality (or particular level of experience) is necessary and relevant to whether a candidate can do the job properly, you are entitled to ask for it. However, if you find yourself writing the words like “younger”, “older” or “youthful” in your job advertisement, the best advice will always be… don’t.

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Disclosure of all convictions and cautions is a breach of Article 8 rights to respect for private life

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Disclosure of all convictions and cautions is a breach of Article 8 rights to respect for private life

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The Supreme Court has held that that the blanket requirement to disclose all convictions and cautions for the purpose of criminal records checks without regard to their relevance was not compatible with the right to respect for private life under Article 8 of the European Convention of Human Rights.

T had received two warnings at the age of 11 from the police in respect of bicycle thefts. These convictions had been spent in accordance with the Rehabilitation of Offenders Act, which provides that after a certain period of time certain offences do not need to be disclosed. T applied for two jobs which involved working with children but was not offered the job after criminal record checks revealed his spent convictions. Similarly, JB had received one caution as a child for a petty theft. JB applied for a job in the care sector but was refused the job because her criminal record (consisting of a spent caution) made her an inappropriate candidate.

T and JB issued proceedings, arguing that the disclosure of their criminal records was incompatible with their right to respect for private life under article 8 of the European Convention of Human Rights.

The Human Rights Act provides that it will not be lawful for public authorities to act in a way that is incompatible with the convention. One of the remedies under the Human Rights Act is for national courts to make a ‘declaration of incompatibility’ which, if not rectified, would result in a referral to the European Court of Human Rights.

The Supreme Court held that the disclosure of the cautions went further than was necessary to achieve the objective of protecting employers and vulnerable persons and did not strike a fair balance between T and JB’s rights and the interests of the community. The Supreme Court found that it could not find any relationship between the minor offences of T and JB and the government’s aim to protect children, in the case of T, or vulnerable adults, in the case of JB.

Since this judgment, the government has introduced two new orders which aim to rectify this incompatibility.

R (on the application of T and others) v Secretary of State for the Home Department and another [2014] UKSC 35