Workplace Investigations Seminar

Come along to WMELG’s Summer seminar to get some pointers on conducting investigations. There are numerous scenarios in which, as lawyers, HR representatives, trade union reps, employees and employers, we might become involved in a company investigation, whether that be regarding disciplinary matters, grievance issues, or whistleblowing complaints.

In this offering from WMELG, we hope to provide some insider advice, from both a barrister’s perspective and also an expert investigator.  Both will provide you with understanding, as well as guidance, as to the do’s and don’ts of investigations.

Register here

Date: Tuesday 16th July 2019
Time: Registration – 08:30, Seminar – 09:00 – 11:15
Venue: Slater and Gordon, Birmingham
Cost: Seminar – Free of Charge

Programme
08:30 – 09:00
   Registration and breakfast
09:00 – 10:00   Workplace Investigations talk by Naomi Owen
10:00 – 10:15     Refreshment Break
10:15 – 11:15       Talk by David Kearns – Managing Director of the Expert                                            Investigations Group

HOW TO BOOK
Register here

The A to Z of conducting investigations

Have you been asked to conduct a disciplinary or grievance investigation in the work place?  Read the latest guidance from barrister Naomi Owen below.


ACAS

The first port of call for any investigating officer (“IO”) is the ACAS Code of Practice for both disciplinary and grievance procedures.  The Code sets out the minimum that is expected of an employer conducting such processes, and so is a good starting point and must be heeded.

Be prepared

Like all good boy scouts, the IO needs to have done their homework.  It is important for the IO to read all documentation available, including the employer’s disciplinary/grievance policy and any other policy relevant to the issue (e.g. bullying/harassment, social media etc).  Also, it is always wise to prepare a list of questions for each witness to be interviewed, so that the IO is confident they have covered all areas necessary.

Characters

An IO needs to consider who needs to be interviewed in order to gain the full picture of any specific scenario.  This will need to be kept under review; as and when individuals are interviewed, it may be necessary to reconsider whether the IO needs to speak to anyone else as the matter progresses.

Documents

The IO should ensure that all parties present at the investigation meeting have copies of all the relevant paperwork/documentary evidence.

Evidence

The IO will need to give careful thought to whether they require any further evidence not currently available.  For example, “is there any information from company databases that is needed?”, “what about previous performance appraisal notes?” or “have there been any prior complaints that need to be considered?”.

Fact-finding

This is the purpose of any investigation.  It is not for the IO to decide the guilt of any party, but to consider whether there is a case to answer.  An IO should probe for evidence that both supports and contradicts the allegations, as opposed to just trying to build a case against “the accused”.

Global view

A process will not be fair if an IO reaches a conclusion by “ignoring matters which he ought reasonably to have known and which would have shown that the reason [for dismissal] was insufficient”, as Viscount Dilhorne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314.  The IO should, for example, explore all defences or lines of enquiry proffered by an employee under investigation.  This is however caveated by the requirement that an employer need only do an investigation that is reasonable in all the circumstances: it has been accepted by the Court of Appeal that the British Home Stores Ltd v Burchell [1978] ICR 303 test does indeed apply to investigating defences in the round, but not necessarily each individual defence – see Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94

Honesty (or dishonesty)

In cases where the misconduct of which an employee is accused tips into the category of potentially criminal, dishonest or fraudulent behaviour, then the potential ramifications for that individual should impact the IO’s approach to their task.  As the EAT has said, “a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him” – A v B [2003] IRLR 405.

Independence

An IO needs to be independent.  Although it is perfectly acceptable for the IO to be a manager within the employer, if there is any hint of an allegation that the process is/may be tainted, then consideration could be given to bringing in an external person to act as IO.

Jurisdiction

IOs must be sure to define the scope of your investigation.  For example, sometimes a grievance will arise at the same time, or during, a disciplinary process.  It will be necessary to check the employer’s policy as to their guidelines in such a scenario.  For example, the IO may need to consider suspending a disciplinary process whilst the grievance takes place.

Keep everything

Even if handwritten notes are superseded by typed notes, it is important to keep the handwritten notes for a reasonable period of time just in case there is an issue with the typed version, particularly if they are not agreed by the employee.  This also applies to any “notes to self” or aide memoires produced by an IO.

Length of process

Any unreasonable delay may lead to a finding of unfairness, without the employee needing to demonstrate actual prejudice (although this will help his case) – RSPCA v Cruden [1986] IRLR 83 and A v B [2003] IRLR 405.  Again, it is important to check the timelines established in any applicable policies.

Minutes

It is vital to have an accurate note of all meetings undertaken during an investigation process.  Once witnesses have been interviewed and minutes have been prepared, these should be agreed and signed by all persons present.  This safe-guards against an employee challenging the accuracy of the minutes later down the line.

No5 Chambers

If in doubt, our barristers are able to offer advice, or undertake the role of IO for both disciplinary and grievance processes.

Offences

During the course of an investigation, it can be that the offences with which an employee is charged change.  This needs to be very clearly reflected in any investigation report.  If there is a change to the allegations, then the amended allegations need also to be investigated to a reasonable standard.

Probability

The IO will need to consider what is more likely to have happened.  In other words, the relevant burden of proof is the balance of probabilities.

Report

Having done all the leg-work, the IO will then need to prepare an investigation report.  It is generally wise to attach as appendices all notes and documentary evidence collated during the investigation process.  The report will contain a summary of charges and the IO’s findings.

Suspension

Where an employee has been suspended, the IO may need to be aware of the limitation that this places on the employee in terms of their ability to obtain information from the workplace.  For example, a generic suspension letter will prohibit an employee from talking to colleagues or stepping foot inside the workplace; the IO may therefore need to step in to obtain information/evidence that an employee cannot reach for themselves.

Training

If possible, ensure that your investigating officer has had some training specifically aimed at investigations, particularly where the allegation involves unlawful discrimination.  Again, No5 can help here.

Union representatives

There is no statutory right for employees to be accompanied to an investigation meeting by anyone, however it may be good practice to offer an employee the choice of bringing a colleague or union rep with them to a meeting.  Many disciplinary procedures provide for this.

Victim

In some investigations, there will be an alleged victim.  Although it is necessary to ensure that the process is not onerous on any such person, it is necessary that any defence/evidence from the alleged perpetrator is put to the alleged victim fully and comprehensively, in order that such lines of enquiry do not go unexplored.

Witness box

When conducting an investigation, it can be useful to consider how actions and decisions taken by the IO would be justified at an unfair dismissal hearing, giving evidence in the witness box.  By thinking of the (possible) end-game, it can help focus the mind on the task ahead.

X-reference

It is wise to cross-reference documentary evidence with that given by witnesses to ensure that conflicts are raised with witnesses and can be answered.  The same applies to conflicting evidence between two witnesses.  As above, it is only necessary for the investigation to be reasonable, but if there is a glaring inconsistency in evidence a witness should be given the opportunity to state their case.

Yes-men

IOs should be wary of falling foul of an accusation of paying lip-service to the process or being management’s puppet.  As the old adage goes, “justice must be seen to be done”.  Again, if this is a potential allegation that may be levelled at any internal staff, it may be sensible to appoint external support for the investigatory process.

Zeal

IOs sometimes run the risk of stepping into the role of prosecutor, as opposed to an investigator of fact.  IOs need to be careful to avoid being overzealous; any heavy-handed treatment could be seen as a breach of the implied term of trust and confidence.


Naomi Owen
Barrister
Employment Group
No5 Barristers’ Chambers
No5.com

Featured

WMELG Networking Breakfast 30.06.17

Join us for a Networking Breakfast followed by a talk from ACAS, and an Employment Workshop delivered by No5 Barristers’ Chambers.

Presented by experts in the field of Employment this interactive forum is a fantastic opportunity to learn, share ideas and network.

PROGRAMME – download flyer here

08.30 – 09.00 Networking Breakfast
Enjoy breakfast whilst networking with fellow WMELG members.

09.00 – 09.30 Age Management Post-Brexit
Malcolm Boswell – ACAS
Talk addressing the need for a mature approach to age management in the workplace post Brexit.

09.30 – 10.30 Employment Workshop
Helen Barney & Anthony Korn – No5 Barristers’ Chambers
Practical workshop tackling issues of service provision change and changes to employees’ terms and conditions of employment post transfer.

HOW TO BOOK

Please click here to book.

COST

This event is free of charge.


For further information about this or any other WMELG event, please contact the wmelg@no5.com  or visit https://wmelg.wordpress.com/

Networking Breakfast 30th June

Redundant NHS Executive Wins Right to Higher Rate Pension

Written by Jade Linton, Sydney Mitchell

Being made redundant can be a painful experience but, with expert legal advice, you can at least ensure that you leave with everything you are entitled to. In one case, a senior NHS executive who was just short of her 50th birthday when her employer decided to make her redundant had her pension rights upheld by the Court of Appeal.

Following a stressful meeting, the woman had gone on sick leave. Soon afterwards, however, she took annual leave and went on holiday to Egypt for a week. She came home to find a letter informing her of her redundancy. She was entitled to a 12-week notice period prior to termination of her employment.

In those circumstances, novel issues arose as to the exact date on which she had been served with notice of her dismissal and whether her notice period expired just before, or just after, her 50th birthday. A judge accepted that her redundancy took effect after she turned 50, thus entitling her to a higher rate of pension.

Her former employer, an NHS trust, challenged that ruling on the basis that she was deemed to have been served notice on the day of the letter’s delivery, rather than the day on which she opened it. In rejecting the appeal by a majority, however, the Court noted that the trust was aware that she was due to go on holiday and that there was a substantial risk that she would not be at home when the letter arrived. In the circumstances, the notice period only began to run when she took delivery of the letter and its contents were actually communicated to her.

Anthony Korn contributes to latest edition of Blackstone Employment Law Practice

The latest edition of Blackstone Employment Law Practice has recently been published by Oxford University Press.

Blackstone Employment Law Practice (2017) is the leading text on tribunal practic for bringing, defending and appealing employment cases in one single, portable volume.

Anthony Korn contributes two chapters to the book: one relating to unfair dismissal compensation and the other relating compensation in discrimination claims.

Anthony Korn is a member of the Employment Law Group at No5

Worker or Employee? Tribunal Ponders Charity Worker’s Case

Written by Jade Linton, Sydney Mitchell

The dividing line between ‘workers’ and ‘employees’ can be very difficult to discern, but is of the greatest significance. That was certainly so in the case of one man who worked for a charity for years without any form of written contract.
The man, who started out as a paid intern on a trial basis, received about £1,000 a month for performing a wide range of tasks, many of them concerned with assisting the charity’s founder in dealing with personal matters. Neither he nor the charity made any account for Income Tax or National Insurance Contributions.
Following his acrimonious departure, he lodged complaints with an Employment Tribunal (ET), which accepted that he was a worker but found that he was not an employee within the meaning of the Employment Rights Act 1996.
The ET found that the absence of a written contract or provision for holiday pay, and the fact that he was generally only remunerated when he worked, were inconsistent with employment status. As a result of that ruling, his whistleblowing and unfair dismissal claims were struck out.
In upholding his challenge to those aspects of the decision that were adverse to him, the Employment Appeal Tribunal found that the ET had erred in law. Those factors that were said to be inconsistent with employment status were in truth no more than pointers in that direction. The ET had also made an apparent factual mistake in respect of his receipt of holiday pay. The case was sent back to the same ET for fresh consideration.

We Need Your Help

Following a successful launch event on the 17th March the West Midlands Employment Law Group need your help!

The aim of the group is to be a member led organisation where you can share ideas, network and receive beneficial training.

In order to achieve this vision and for the group to be a success WE NEED YOUR HELP!

How can you can get involved:

  • Committee Group – We are looking for a small group of people who are able to help with providing ideas for future events, training and WMELG activities and help to bring these ideas to life.
  • Article Submissions – We would like you to submit relevant articles about Employment Law, HR issues or updates, legal updates and topical news that we can use on our website. These can be full articles, short blog pieces or topics you think would be good to get comment or feedback on.*
  • Ideas – We welcome any ideas you have for future events, training topics and charities you would like the WMELG to support.
  • Venue – If you would like to offer your place of work as a venue or would like to suggest any venues for future events please do let us know for a future event.

To get involved please follow the links below.
The West Midlands Employment Law Group look forward to working with you all.

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HeadScarfs and Turbans: Are you protected?

16.03.17

The  Metro Newspaper dated 15th March 2017  headlined on its front page that Employers could ban Headscarfs. This was a reference to the decision of the European court of Justice where two Headscarf wearing Muslim women challenged their Employers code of conduct, which prohibited the wearing of any visible signs of their political, philosophical or religious beliefs in the workplace (and on engaging in any observance of those beliefs).

Samira Achbita v G4S

On 12 February 2003, Samira Achbita, a Muslim, was employed as a receptionist by G4S (a company that provides customer facing security services to both the private and public sector).  At the time of Ms Achbita’s recruitment there was an unwritten rule (ie not contained in the contract of employment or staff handbook but imposed through Management instructions) within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.

In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, she was informed that wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. Ms Achbita attended work wearing her headscarf.

On 29 May 2006, the G4S  approved an amendment to the workplace code of conduct adopting the unwritten rule. Ms Achbita was then dismissed for continuing to wear her Headscarf despite management instructions. She challenged her dismissal in the Belgium courts, who made a referral to the ECJ.

Asma Bougnaoui v Micropole

Ms Bougnaoui met a representative of Microplole at a student fair where she was offered an internship, which she commenced on the  4 February 2008. At the point, she was wearing a simple bandana. She subsequently wore an Islamic headscarf at work, whilst still interning.  At the end of her internship, Micropole were obviously impressed by her and employed her, from 15 July 2008, as a design engineer under a contract of employment of indefinite duration.

However, despite sometime of working as a design engineer successfully at Micropole, following a complaint from a customer to whom she had been assigned that he did not want the services of a woman wearing a Headscarf,, she was instructed not to wear the Headscarf. When Ms Bougnaoui refused to take off her Headscarf, Micropole dismissed her on the grounds of refusing to follow the instructions of maintaining workplace neutrality. She challenged her dismissal in the French Courts, who in turn made a referral to the ECJ

Niether G4S nor Micropole seem to have considered, alternative non-customer facing roles for either Employee, before making the decision to dismiss.

The ECJ provided the opinion in both cases that there was not workplace discrimination of the employee if the code of conduct or instructions, setting out an aim for workplace ‘neutrality’ applied to all Employees. This is because in order to obtain a finding that you have personally as an Employee been discriminated against by an Employer, you must be able to demonstrate ‘ less favourable’ treatment to other Employees. If all Employees were treated the same i.e  all not allowed to wear anything that showed their faith, then there could not be less favourable treatment because of faith.

However, the ECJ recognised that a claim for indirect discrimination could be brought against an Employer applying a neutral code of conduct or instructions, where it places Muslim Employees at a particular disadvantage. The intention to have a neutral workplace is irrelevant, if it can not be justified to achieving a legitimate aim ie a genuine occupational requirement. The ECJ opined that an Employer could have objective justification, if it were trying to meet the aim of neutrality in its relationship with its Employees.

What does the ECJ decision mean for Head -Coverers in the UK? 

In a much forgotten case of  Mandla v. Dowell-Lee [1983], a sikh boy brought a challenge against a school dress code that was introduced to ‘ minimise external differences between races and social classes’ . In addressing indirect discrimination, the House of Lords decided that it was for the Employer to show that the condition which he seeks to apply is in all circumstances justifiable without having regard to  ‘colour, race, nationality or ethnic or national origins of the person to whom it is applied’ . But in this case the principal justification on which the Employer relied upon was that the Turban was objectionable  because it was a manifestation of  ethnic origins. The House of Lords concluded that this is not, in ther view, a justification which was lawful. Whilst this case was decided under the old Race Relations Act 1976, which did not provide protection for religious discrimination under a separate category, the Equality Act 2010 does. It is this decision that provides protection against Employers in the UK from introducing dress codes with the aim of creating a neutral workplace environment, by prohibiting the manifestation of faith. For instance in a recent case brought by a Sikh Police Constable against Greater Manchester Police, an Employment Tribunal made a finding of indirect discrimination because the PC was instructed not to wear his Turban for riot training. Similarly, another decision Muslim woman who claimed unfair dismissal and religious discrimination against a London store who wished to preserve a trendy image, was forced her to resign for insisting on wearing the Headscarf, under the pretext of being late back from lunch. The Claimant did not succeed in her claim for direct discrimination but did for unfair dismissal. The Tribunal expressed that she claimed for indirect discrimination instead, she would have succeeded.

It is my opinion, that UK law will continue to provide the long standing protection afforded to those who wish to  manifest their faith through covering their heads be they headscarfs, Turbans or indeed skull caps.

Written by Nabila Mallick, Barrister at NO5 Barristers’ Chambers

Banning Muslim Headscarves in the Workplace

14.03.17

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The impact of the wearing of Muslim headscarves is never too far away from the headlines. The Court of Justice of the European Union (CJEU) has today released a press release of its (non-binding) decision in two cases, the Achbita and Bougnaoui cases[1], concerning the wearing of Muslim headscarves in the workplace. In a cursory review of reporting of these cases in the media, the media seem to be reporting that “the Muslim headscarf ban is legal”[2].  In an era of “fake news” it is important to understand what the Court has actually decided.

Achbita

In 2003, Samira Achbita, a Muslim female employed as a receptionist by G4S in Belgium was subject to an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.

In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, the management of G4S informed her that the wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers.

On 29 May 2006, the G4S works council approved an amendment to the workplace regulations, which came into force on 13 June 2006. These provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’. On 12 June 2006, Ms Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work. She challenged that dismissal in the Belgian court.  The Belgian court referred the question of whether the prohibition on wearing an Islamic headscarf, which arises from a general internal rule, constitutes direct discrimination.

Decision of CJEU

The Court held that that G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction.  As the rule treats all employees in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally, it did not treat the claimant differently, compared with other G4S employees. Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive. Therefore, the rule did not amount to direct discrimination.

However, the Court went on to say, that the rule could amount to indirect discrimination, but that was a question for the national court to determine.

[1] Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions (Case C-157/15), and Bougnaoui and Association de défense des droits de l’homme  (ADDH) v Micropole Univers  and  (Case C-188/15).

[2] See for example, http://www.standard.co.uk/news/world/european-court-of-justice-rules-employers-can-ban-women-from-wearing-headscarves-a3489126.html ; http://www.bbc.co.uk/news/world-europe-39264845 ; https://www.washingtonpost.com/world/eu-court-says-employers-can-ban-muslim-headscarf-at-workplace/2017/03/14/e2061c12-c520-4cd2-a7f8-8ca78d3c02ed_story.html?utm_term=.0140df4ead98

Written by Mugni Islam-Choudhury, Barrister at No5 Barristers’ Chambers