Whittaker’s Whimsies: April 2017

Year Published: 2017

Employers are consistently put under pressure with the rules and regulations of employing members of staff. What’s wrong with using the word Easter? Can your HR Manager make the decision for you? Is dismissal the right or wrong answer? Our Senior Partner, Jonathan Whittaker, answers your questions on the latest news and employment law topics in his Whittaker’s Whimsies column.

Easter – are we now prevented from using that word?

Jonathan Whittaker, Senior Partner at SAS Daniels

Jonathan Whittaker, Senior Partner

The recent publicity surrounding the removal of the word “Easter” from various confectionery and company literature has understandably made employers nervous. Must they really stop calling a certain holiday Easter or Christmas for fear of claims of discrimination from non-Christian employees? The answer to that is a resounding NO.

The Equality Act imposes no such requirement. Employers are not required either to give equal or similar prominence to the religious holidays of other religious faiths in order to be seen to be treating everyone equally. So at SAS Daniels we will still be distributing Easter eggs to all our staff (including the Senior Partner!) and we will still all be looking forward to our Christmas party!

Is dismissal for not doing something a fair outcome?

The High Court and the Court of Appeal have clearly said “Yes” to this question. Where a senior manager knew that a feedback process the company operated, to make sure that its employees were engaged and motivated, was being deliberately manipulated so that those who were likely to be critical of the company were side-lined, then the senior manager was under a duty to intervene and stop this happening. When the company found out about this, the manager was dismissed for gross misconduct. His claim failed – twice. However employers must not assume that any failure to act will justify dismissal because it won’t. The Court of Appeal said clearly that every case has to be considered individually and that where no intention could be shown to contradict or undermine the policies of a company the dismissal was unlikely to be justified. So the question is always “how serious is this and why?”

Don’t ask your HR Manager to make the decision for you!

The role of HR Managers and Advisers has always been central to disciplinary and grievance hearings but where does that role begin – and end? The Employment Appeal Tribunal (EAT) have recently looked at this carefully in order to make sure that when a decision, such as dismissal, is made, the tribunal really knows who actually made the decision. Was it the Chairman of the Disciplinary Panel or did they just rubber stamp what they were advised to do by the HR Manager? If so the tribunal may well find that the HR Manager should be giving evidence and that there is a big question mark over whether the employer followed a reasonable and fair procedure to reach the decision that it did. HR Managers are there to advise but they are not there to make the decision, unless they are appointed to do exactly that.

Is this really the report of the person who says they wrote it – or does it reflect the opinions of someone else?

Employers must be very careful to make sure that investigation reports are really and truly the conclusions of the author of the report, and that there has not been any undue influence placed on the author to reach a particular conclusion and then reflect that in the final report. Employers must be aware that earlier draft reports – which are subsequently changed – can be ordered to be produced to a tribunal. Where those drafts show significant changes – especially to the conclusions reached – the tribunal will be entitled to ask how and why the author changed their mind. Employers must be very careful not to try to influence the conclusion of a report one way or the other. The independence of the investigation must be maintained and reflected in the final report – even if the employer does not like the conclusion reached.

Stockport County on the up!

Our Manager, Jim Gannon, continues to work miracles as indeed does the left foot of Danny Lloyd!  The County twitter feed is a “must read” every time they play. The results keep going our way and there is now a genuine belief that County will be involved in the play offs at the end of the season.  Everybody knows that play offs are a lottery. However that lottery gives everybody a chance. As they say “you have to be in it to win it”. Whatever the outcome, this season has been a very significant improvement on previous seasons and there is every reason to be optimistic both for the end of this season and for next season. Once again there is genuine reason to be proud to be a County supporter!

For more information on any of the topics raised in Whittaker’s Whimsies, please contact Jonathan Whittaker on 0161 475 7662. You can also read previous editions of Whittaker’s Whimsies here.

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