Two individual directors have been held personally liable for the unfair sacking of a whistleblower for the first time, in a case that will send shockwaves through boardrooms.

Appeal judges have upheld a record-breaking £2m award to the former chief executive of International Petroleum (IPL), Alexander Osipov, who was sacked in October 2014 on the grounds of lack of trust and confidence.

Osipov brought proceedings in the UK employment tribunal (IPL is based in Australia, but listed on the London Stock Exchange) for unfair dismissal and four counts of victimisation including for whistleblowing. The four co-defendants included two non-executive directors of the company: Frank Timis, the majority shareholder, and Anthony Sage, IPL’s chairman.

In 2016 an employment tribunal ruled that Osipov had been unfairly dismissed, primarily for making protected disclosures under whistleblowing legislation.

He was awarded compensation for unfair dismissal, injury to feelings and unpaid salary. The employment appeal tribunal (EAT) upheld the initial ruling and awarded the claimant £1,744,575.56 (now recalculated to be £2,003,972.35).

The second of two judgments made by the ET found Timis and Sage jointly liable for the award to Osipov. The two directors took this ruling to the Court of Appeal which has now upheld the original tribunal and EAT decisions.

The dismissal of Osipov in 2014 came at the culmination of a series of disagreements between the chief executive, Timis and Sage and other senior employees over IPL’s operations and the award of contracts in Niger, during which Osipov had become excluded from decision-making.

He was then dismissed without a notice period, and IPL claimed that because it only had a very small HR department it was unable to follow the correct dismissal procedures.

Osipov told the ET that his concern was good corporate governance and the need to avoid suggestions of bribery and corruption, which had blighted businesses in Niger. He also voiced concerns over the holding of data that may have breached Niger’s petroleum code.

The case is particularly notable because it has confirmed that individual directors taking the decision to dismiss someone for making a protected disclosure under whistleblowing legislation can be held personally liable.

The case is an important reminder for decision-makers to think more carefully than ever before about giving instructions to dismiss an employee for whistleblowing.

It’s vital that employers identify any potential whistleblower complaint at an early stage and isolate complaints from any other processes involving the whistleblowing employee, such as a performance or grievance process.

It’s advisable for employers to provide relevant training on whistleblowing to their staff, in particular line managers, decision-makers and those involved in internal HR procedures.  Especially when those who take the decisions can be held personally responsible if they are Directors.

A whistleblower is a worker who reports certain types of wrongdoing. The wrongdoing they disclose must be in the public interest. This means it must affect others, e.g. the general public.

Whistleblowers are protected by law – they shouldn’t be treated unfairly or lose their job because they ‘blow the whistle’.

Concerns can be raised at any time about an incident that happened in the past, is happening now, or is believed will happen in the near future.

A confidentiality clause or ‘gagging clause’ in a settlement agreement isn’t valid if you’re a whistleblower.

Complaints that count as whistleblowing are as follows:

 

  • a criminal offence, e.g. fraud
  • someone’s health and safety is in danger
  • risk or actual damage to the environment
  • a miscarriage of justice
  • the company is breaking the law, e.g. doesn’t have the right insurance
  • you believe someone is covering up wrongdoing

At Solve. we can provide training on whistleblowing procedures and assist in cases of whistleblowing.

A recent employment tribunal ruling is a useful reminder of the special protection afforded to pregnant employees facing redundancy.

In early 2016, the British Museum began a 5-year scheme to train Iraqi archaeologists on excavation techniques and site-management best practice. Ms Niki Savvides was hired for the role of training co-ordinator, initially on a one-year, fixed-term contract, with the expectation that her role would continue for the duration of the project. Towards the end of the first year, she informed the Museum that she was pregnant. Talks commenced with the Museum to secure maternity cover but soon afterwards she was informed that the emphasis of the role had changed, that a new post was to be created and that she was being made redundant. The role was then advertised externally and Miss Savvides applied. Unable to attend the interview due to pregnancy-related illness, the Museum withdrew her application.

In Savvides v The Trustees of the British Museum, Ms Savvides contended that the new role of project co-ordinator was similar enough to her current role that it should have been offered to her without having to apply when it was advertised externally. She claimed for automatic unfair dismissal and discrimination on the grounds of pregnancy.

A tribunal agreed and found in her favour. It held that the role change meant the Museum did in fact have a genuine redundancy situation, but as Ms Savvides had the requisite skills for the new role she should have been offered the job. Accordingly, the dismissal was automatically unfair.

In addition, the tribunal found that by withdrawing Ms Savvide’s application when she was unable to attend the interview due to the pregnancy-related illness, the Museum had discriminated against her and awarded an undisclosed financial settlement.

A spokeswoman for the British Museum said: “The British Museum values its employees highly and takes its responsibilities as an equal opportunities employer seriously; we aim to create a family friendly environment for all employees, through enhanced packages and flexibility and by consulting regularly with staff and representatives.

“The employment tribunal considered a case regarding the law on pregnancy discrimination, and came to its decision based on legal technicalities that were specific to this case.”

Notes to employers facing redundancies affecting staff who are pregnant, or on maternity leave.

Genuine redundancy situations do not mean that employers can lawfully dismiss pregnant employees or staff already on maternity leave. It is important to understand and correctly apply the law, most notably Regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPLR) which covers the employees mentioned above.

In brief, Regulations 10 states: “This regulation applies where, during an employee’s ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her…Where there is a suitable available vacancy, the employee is entitled to be offered… alternative employment…”

Essentially an employee selected for redundancy whilst pregnant or on maternity leave, must be offered a suitable alternative role, if her employer has one. Furthermore, this employee should be offered the role in preference to other at-risk employees, even if the other employees were better suited for the role. Without adhering to the legal provisions of suitable alternative arrangements as set out in Regulation 10, any dismissal is automatically unfair and does not need a minimum length of service (normally two years) to recover unfair dismissal losses.

Additionally it is unlawful, due to Section 18 of the Equality Act 2010, for an employee to be treated unfavourably because of her pregnancy or maternity or any illness suffered due to the pregnancy. For a Section 18 claim, no comparator needs to be identified, making proving the case at tribunal easier. Compensation would then be payable for actual loss of earnings (capped), and also for injury to feelings (uncapped).

To be confident of compliance with the regulations, an employer who does not offer any alternative role should be able to show exactly why the new role is not suitable, ensuring that the failure to offer an alternative role is not due to the employee being on maternity leave.

Where a worker is required to sleep-over within the workplace, but may only be woken if needed to carry out a specific duty, the worker is only entitled to the National Minimum Wage (NMW) for the time they are required to be awake, for the purpose of working, they are not entitled to the NMW for the whole shift.

In the case of Royal Mencap Society v Tomlinson-Blake, Ms Tomlinson-Blake was a carer for two adults in their own home.  As well as working day shifts, she was required to carry out a sleep-over shift between 10pm and 7am for which she received a payment of £29.05.  During the sleep-over shift, she was not required to carry out any duties but was required to remain at the clients’ house and keep an ear out in case she was needed.  Ms Tomlinson-Blake had her own bedroom, together with a shared bathroom.

Ms Tomlinson-Blake claimed that she was entitled to the NMW for the whole sleep-over shift.  The Employment Tribunal and Employment Appeal Tribunal (EAT) upheld her claim, ruling that she was working for the whole of the shift.

Mencap appealed to the Court of Appeal who upheld the appeal.  The Employment Tribunal and EAT should have concluded that she was available for work, rather than working, and that the sleep-over exception in the National Minimum Wage Regulations 2015 applied – she slept by arrangement at her place of work and was provided with suitable facilities for doing so.  Therefore, only the hours when she was required to be awake for the purposes of working counted for NMW purposes.

This is an important decision for employers in the care sector who engage workers to carry out sleep-over shifts at work.  The Court of Appeal reviewed and, in effect, overturned a significant number of previous authorities on the treatment of sleep-over shifts for NMW purposes.  Workers who carry out sleep-over shifts at work are only entitled to the NMW Wage for those hours where they are awake and working.

It is important to note, that the judgment only deals with the situation where a worker is expected to sleep all or most of the shift but should be available if required.  It makes it clear that it is not dealing with cases where a worker may be permitted to sleep between tasks.  For example, a night security guard who is responsible for patrolling premises from time to time throughout the night but who is permitted to sleep for short periods between patrols and is given a mattress to sleep on in an office, would be regarded as working throughout his shift and entitled to the NMW for the whole shift.

For further advice and support on what counts as working time and NMW contact us at Solve.

 

In the case of Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali was on long term sick absence following a heart attack, which was accepted as a disability.  A medical report stated that it was unlikely he would be able to return to work on a full-time basis but that he could return on a phased, part-time basis.  Dr Ali was then signed off work for six weeks due to a shoulder injury.  On the expiry of that certificate his employer dismissed him on grounds of capability.

Dr Ali claimed that he was unfairly dismissed and discriminated against due to his disability.  The Employment Tribunal (ET) found that his dismissal was unfair due to this employer’s failure to consider a return to work on a part-time basis, but rejected his discrimination claim, finding that his dismissal was justified by the employer’s legitimate aim of ensuring that it provided the best possible care to patients.

Dr Ali appealed to the Employment Appeal Tribunal (EAT) in relation to the rejection of his disability discrimination claim.

The EAT ruled that the employment tribunal had been wrong to find that dismissal was justified, without considering whether part-time working was a less discriminatory means of the employer achieving its legitimate aim.  Having found that the employer’s failure to consider part-time working meant his dismissal was unfair, it should have taken this factor into account when considering whether dismissal was proportionate.  Although the tests for unfair dismissal and disability discrimination are different, the factors that are relevant for determination are likely to be substantially the same.

At the date of dismissal, Dr Ali’s last sick certificate had ended and the medical advice indicated that he should be able to return on a part-time basis.  The ET should have considered whether the employer’s failure to consider part-time working as an alternative to dismissal meant that his dismissal was not objectively justified.

The EAT submitted the case to the same tribunal to reconsider this issue.

For advice and support on absence and discrimination, contact us at Solve.

An employment tribunal has made an award of £1,000 against Marks and Spencer after a delay in providing a disabled shop worker with a £3 lift key to allow him to reach the toilets more easily.

In Mitchell v Marks and Spencer plc, the employment tribunal held that the employer breached its duty under the Equality Act 2010 to make reasonable adjustments for disabled workers.

Due to a health condition Mr Mitchell required an operation.  His condition was classed as a disability under the Equality Act.  Both before and after the operation Mr Mitchell anticipated that he would require frequent trips to the toilet on the second-floor and would need access to a customer lift through the use of a key.

Without the key to the customer lift, Mr Mitchell had to access the second-floor staff toilets using the goods lift, the stairs, or a combination of the escalator and the stairs.

Mr Mitchell raised this issue with various managers before his operation.  After his operation he again raised his request and was finally issued with a key to the customer lift 10 days after his operation.

Mr Mitchell claimed disability discrimination in the employment tribunal, which upheld his claim by a majority.  His claim was successful as the tribunal accepted that using the customer lift rather than the goods lift did make a difference for Mr Mitchell, in terms of “speed, reliability and convenience”.

The tribunal awarded £1,000 to Mr Mitchell for injury to feelings.

The tribunal was of the opinion that there could be little excuse or explanation for failing to provide Mr Mitchell with a key for 10 days when there were keys available and when the cost of cutting a further key was agreed to be just £3.

This case highlights the importance of avoiding delays when making reasonable adjustments in cases of disability especially when those adjustments are simple and easily made.

Employers must make reasonable adjustments to make sure workers with disabilities, or physical or mental health conditions, aren’t substantially disadvantaged when doing their jobs.  These adjustments depend on the condition and the individual, they might include:

  • changing the recruitment process so a candidate can be considered for a job
  • doing things another way, such as allowing someone with social anxiety disorder to have their own desk instead of hot-desking
  • making physical changes to the workplace, like installing a ramp for a wheelchair user or an audio-visual fire alarm for a deaf person
  • letting a disabled person work somewhere else, such as on the ground floor for a wheelchair user
  • changing their equipment, for instance providing a special keyboard if they have arthritis
  • allowing employees who become disabled to make a phased return to work, including flexible hours or part-time working
  • offering employees training opportunities, recreation and refreshment facilities

For further advice and support on disability in the work place and making reasonable adjustments contact us at Solve.

Employer Right to Work Checks

It has been confirmed by the Employment Appeal Tribunal that the drivers for the transport company Uber are not ‘self-employed’ and are in fact workers by the Company.  Uber operates a digital platform to provide transport services, whereby, drivers sign up online and are connected with customers through a mobile phone app.  Uber had argued that it is no different to the ‘traditional’ cab company and they acted as the ‘agent’ for the drivers and not the employer and maintained that they did not control when and how drivers work.

According to Uber, their guidelines for drivers as to how work should be done are ‘recommendations’ and not obligations, they also argued that there is no obligation on the drivers to perform work for instance they were not obliged to switch on the app or accept driving jobs once the app is switched on as well as the drivers bearing the financial risk of the transaction, Uber can choose to absorb the loss if a customer refuses to pay, but is not obliged to do so.

The EAT rejected these submissions and upheld the decision of the employment tribunal that the drivers are engaged as workers by the company, when the drivers were driving, they are a worker and that is their working time

The reality of the situation was that the drivers are subject to significant control by the business.

It was less certain that the drivers were workers when the app was on and they were waiting for a job to be allocated (as they could in theory be working for multiple companies during this time).  However, the EAT accepted that the tribunal was entitled to decide that the drivers were also working during this period particularly because there was an obligation on drivers to accept 80% of the jobs offered whilst the app is on.  The decision suggests that, whether an individual is a worker during these interim periods will depend on the particular facts of the case and the operating model used by each organisation.

What does this mean for me?

Whether an individual is self-employed or is a worker is fundamental, as worker is entitled to various employment-related benefits such as paid holidays, rest breaks, the national minimum/living wage, auto-enrolled to a qualifying pension scheme, and not to be detrimentally treated for whistleblowing.

This Judgment is very clear, what a Company says in their documents will not determine the status of an individual and in fact the starting point is the reality of that working arrangements.  An Employment Tribunal will look at what you do, the rules and requirements you impose, and the arrangements you have in place, these are some key attributes that will determine the status of your workers / contractors.

If you are at all concerned about the status of those you engage, you should take advice on the reality of the entire relationship.