Our aim is to keep you up to date with key developments in employment law so that you can manage your business better. Please note that the Newsletter is for information only. It is not intended as legal advice and must not be read as such.
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When is a bribe not a bribe?
The Bribery Act 2010 comes into force on 1 July 2011. It creates a number of new offences one of which is failure by a commercial organisation to prevent bribery. So, has corporate hospitality become a criminal offence? This was a real worry for businesses but the position has been clarified in the mandatory guidance published by the Secretary of State on what a commercial organisation needs to do to take advantage of the statutory defence of having "adequate procedures" to prevent bribery. "Rest assured" states the Guidance, "No-one wants to stop firms getting to know their clients by taking them to events like Wimbledon or the Grand Prix." Spending on corporate hospitality will not be caught if it is a bona fide way of promoting the company's image or establishing cordial relations. However, it will be caught if it goes beyond this and its purpose is to influence the recipient in their official role to secure business. No doubt this somewhat grey dividing line will be clarified further if there are any prosecutions under the Act.
Common sense prevails
In Bowater v Northwest London Hospitals NHS Trust and anor [2011] IRLR 33, B, a senior staff nurse at the Central Middlesex Hospital, was leaving the hospital at the end of a 12 hour shift. She went to help colleagues who were trying to restrain a patient on a trolley who was having an epileptic fit. During the course of this she ended up sitting astride the patient's naked genitals and said, "It's been a long time since I have been in this position with a man underneath me." The patient was not capable of understanding what she said and, although the remark was made in a public place no members of the public or relatives of the patient heard it.
Despite this, the Trust dismissed B for gross misconduct on the basis that this was an unprofessional and inappropriate comment. The tribunal found that she had been unfairly dismissed. In the circumstances, no reasonable employer would have dismissed B for this comment and deprived her of her career. The Trust had not taken into account the mitigating circumstances: B had not been trained in restraint, she had volunteered to help after a long shift, the comment was not directed at the patient, no member of the public was present, a large proportion of the population would have considered the comment to be merely humorous and B had a clean disciplinary record.
The Court of Appeal, overturning the Employment Appeal Tribunal (EAT) agreed with the employment tribunal.
Follow the rules for maternity cover or else!
Dismissing an employee covering another employee's maternity leave can be a fair dismissal for that reason, but only if the employer follows the rules laid down in section 106(2) of the Employment Rights Act 1996. These rules are that the employer must tell the maternity cover on engagement and in writing that their employment will end when the employee on maternity leave returns to work.
An employer who fails to follow these rules to the letter is unable to rely on this statutory provision as the Victoria and Albert Museum found out to its cost in Victoria and Albert Museum v Durrant [2011] IRLR 290 EAT.
Moral - if you employ a person to cover maternity leave don't cut corners!
Can volunteers sue for discrimination?
No, according to X v Mid Sussex Citizens Advice Bureau and anor [2011] IRLR 335 EWCA.
X was an unpaid volunteer for the CAB. She was disabled. She was given a contract stating that it was "binding in honour only....and not a contract of employment or legally binding." When the CAB asked her to stop being a volunteer she thought this could be because she was disabled and brought a disability discrimination claim.
The Court of Appeal (CA) agreed with the tribunal and the EAT that she had no standing to bring this claim. In order to be covered by the Disability Discrimination Act, there had to be a contract between her and the CAB; or the volunteering had to be an arrangement made by the CAB for determining to whom it was going to offer work; or volunteers needed to be engaged in an occupation or employment covered by the EU Equal Treatment Directive. X failed to bring herself within any of these alternatives and the tribunal therefore had no jurisdiction to hear her claim.
Who decides whether it is reasonable for the employer to dismiss?
In Orr v Milton Keynes Council [2011] IRLR 317 EWCA, the Court of Appeal (CA) held that the answer was the manager taking the decision to dismiss, based on what this manager knew or ought to have known.
O was black and of Jamaican origin. He was employed by Milton Keynes as a part-time youth worker. His manager was Mr M. On 17 October 2005 O talked to some young people at a community centre about a recent sexual assault. This was breach of Mr M's express instructions. On 20 October during a discussion with Mr M about his working hours O was rude to Mr M. O was dismissed for gross misconduct on the basis of these two allegations. His dismissal hearing was chaired by a group manager, Mr Cove.
O claimed unfair dismissal and race discrimination. The tribunal upheld the discrimination claim but dismissed the unfair dismissal claim. The Employment Appeal Tribunal (EAT) remitted the unfair dismissal claim to a different tribunal. The second tribunal discovered that the altercation with Mr M on 20 October had been sparked by an attempt by Mr M to reduce O's hours. O was upset and began to use Jamaican patois. Mr M then said, "You lot are always mumbling...I can't understand a word you lot are saying." The tribunal found that this remark was direct race discrimination but dismissed the unfair dismissal claim. The EAT upheld the tribunal's decision.
The CA, by a majority, dismissed O's appeal. The issue was whether knowledge of why the altercation with Mr M occurred could be imputed to Mr Cove. As Parliament permitted the employer to delegate the decision as to whether it was reasonable to dismiss to a person in the organisation with sufficient skill and experience to carry out this task, it was this person's state of mind that counted when it came to deciding whether the dismissal was fair. This person had to come to their view on the basis of a reasonable investigation and if the investigation was sufficiently thorough it would support a reasonable belief in its findings regardless of whether a piece of information was missed. In this case, on the facts Mr Cove could not be imputed with knowledge of Mr M's behaviour and his decision to dismiss was fair.
Employers can be liable for staff who steal
This is illustrated by Brink's Global Services Inc and ors v Igrox Ltd and anor [2011] IRLR 343 EWCA.
BGS delivered goods worldwide. I Ltd provided fumigation services and, in May 2007 was contracted by BGS to fumigate a sealed container containing 627 bars of silver. This was a delivery by BGS from a bank in London to India. B and R, two employees of I Ltd, were instructed to fumigate the container while it was in a terminal in a secure fumigation compound.
They arrived separately at the terminal, opened and inspected the container but resealed it without fumigating it. They left the compound and drove off. R returned later, entered the container and stole the silver bars. He was picked up by CCTV. BGS discovered the theft on 14 May during a security check. R was convicted of theft. BGS compensated the cargo owners. The silver bars were not recovered. BGS sued I Ltd in the High Court to recover their loss arguing that I Ltd were vicariously liable for R's theft.
The High Court and Court of Appeal agreed that they were. The issue was whether there was a sufficiently close connection between R's employment with I Ltd and the act in question. Here there was and it was just and equitable to make I Ltd, responsible for (vicariously liable for) his actions.
Moral - the vicarious liability net is a wide one. So, take care with the selection and supervision of your staff