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HR & EMPLOYMENT LAW Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Learn the Lessons from £2.3m Whistleblowing Payout
If you dismiss an employee for blowing the whistle on workplace wrongdoing, they can claim unfair dismissal even if they don’t have 2 years’ service. Crucially, there’s also no upper limit on compensation. A recent £2.3 million whistleblowing award to a former Royal Mail employee who was dismissed, ostensibly for poor performance, after going on sick leave during her probationary period, has highlighted how sizeable payouts can be if you breach your legal duties. We look at what happened and suggest 4 actions to avoid similar claims.
Facts of the Case
This case, Jhuti v Royal Mail Group Ltd [2023] ET/2200982/2015 relates to events that took place a decade ago. Soon after she joined Royal Mail’s marketing team in 2013, Ms Jhuti began to suspect a colleague was breaching Ofcom guidelines. She raised her concerns with her boss, Mr Widmer. He convinced her to retract the allegations to avoid losing her job and then made it appear as if she was underperforming. She complained to HR about her treatment and was later signed off with work-related stress, anxiety and depression.
Another manager, Ms Vickers, was asked to decide whether Ms Jhuti should be dismissed. Mr Widmer withheld Ms Jhuti’s emails to him and Ms Vickers didn’t meet her due to her ill health. Ms Jhuti sent Ms Vickers one email saying she was being ‘sacked for telling the truth’ but Mr Widmer explained this away as a misunderstanding. Ms Vickers then dismissed Ms Jhuti for unsatisfactory performance.
The Decision
At the end of 2019, the Supreme Court held that Ms Vickers’ reasons for dismissing Ms Jhuti were blameless and the whistleblowing allegations had been hidden from her. Despite this, the dismissal was unfair because the real reason behind Ms Jhuti losing her job was because she had blown the whistle.
In a decision published this week, an employment tribunal has now ordered Royal Mail to pay Ms Jhuti £2,365,614.
Why is the Award so High?
Due to poor mental health, Ms Jhuti has been unable to work since her dismissal, so most of her award is for past and future loss of salary and pension. There are also sums for unfair dismissal and detrimental treatment. Royal Mail has said it’s appealing against the size of the award, so this may not be last we hear of this long-running case.
Key Steps to Avoid a Similar Claim
It’s clear from this ruling that you could face a very high price for mishandling whistleblowing allegations. Some steps you can take to protect your business are to:
- Look for any red flags before deciding how to handle underperformance by a probationer. This should normally be a routine matter that doesn’t require you to follow your full formal performance management procedure. Here, though, HR knew Ms Jhuti had made bullying complaints against her manager and she was absent with work-related stress. This should have set alarm bells ringing and highlighted the need for a thorough investigation into all the evidence.
- Have a clearly worded whistleblowing policy, give new hires a copy and go through your complaints procedure during their induction. This should give an alternative point of contact such as HR or a more senior manager, not just advise employees to speak to their own manager.
- Make clear in your disciplinary policy and management training that bullying, harassing or victimising a colleague or team member is a disciplinary offence that may lead to dismissal.
- Train and guide managers tasked with investigating and hearing performance management, disciplinary and grievance issues. HR should:
- Be clear what the investigation should cover.
- Remind them to be alert to possible deception and, in the Supreme Court’s words, to ‘address all rival versions of what has prompted the employer to seek to dismiss the employee’.
- Explain how to enable an absent employee to give their version of events – for example, by meeting them at an alternative location or using written questions and answers.
- Give investigators all relevant facts from the employee’s personnel file.
Here, if HR had informed Ms Vickers about Ms Jhuti’s complaint against her manager, or if Ms Vickers had probed more deeply, Royal Mail may well have avoided this very costly and drawn-out litigation.
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HEALTH & SAFETY Emma Lampka, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
180k Fine After Worker’s Fingers Sliced Off: Comply with Your Duties on Work Equipment
The Health and Safety Executive (HSE) has fined VN Labs Ltd in Manchester £180,000 and £7,490 in costs after they found that a recently purchased machine did not have any guarding. The agency worker was operating a packaging machine at the firm’s premises, which became blocked. While removing the plastic that was causing the blockage, the machine blade was freed and sliced the worker’s right hand. This led to the amputation of two fingers and thumb. We show you how you can prevent these types of incidents and comply with your duties.
If you are an employer or someone in control of premises, you must understand the health risks associated with machinery. Your duties under the Health and Safety at Work Act 1974 extend to risks which may arise from work activities, and the Provision and Use of Work Equipment Regulations (PUWER) 1998 provide a framework of actions designed to assess, prevent or control the specific risk from machinery.
Work Equipment and Use of Work Equipment
You need to understand the work equipment being used and how it is used. This applies to machinery, appliances, apparatus, tools or installations for use at work and includes equipment which employees provide for their own use at work.
‘Use of work equipment’ essentially means any activity involving work equipment. This includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning.
How You Can Prevent this Type of Incident
If your organisation uses work equipment or is involved in providing work equipment for others to use (e.g. for hire), you must manage the risks. The regulations are extensive but specifically, regarding this type of incident, this means you must ensure that:
- The equipment is constructed or adapted to be suitable for the purpose it is used or provided for.
- Health and safety risks are recorded when selecting work equipment.
- The equipment is only used for suitable purposes.
- The equipment is maintained in an efficient state, in efficient working order and in good repair.
- Maintenance logs are kept up to date.
- The equipment is inspected after installation and before being put into use.
- The equipment is inspected so that faults are detected in good time, especially where the equipment is exposed to deteriorating conditions liable to result in dangerous situations.
- All people using, supervising or managing the use of work equipment are provided with adequate, clear health and safety information. This will include, where necessary, written instructions on its use and suitable equipment markings and warnings.
- The use of the equipment is restricted to those people trained and appointed to use it.
- Effective measures are taken to prevent access to dangerous parts of machinery. This will normally be by fixed guarding but where access is needed, interlocked guards (sometimes with guard locking) may be needed to stop the movement of dangerous parts. Where this is not possible, such as with the blade of a circular saw, it must be protected as far as possible and a safe system of work used.
- Maintenance operations on work equipment can be carried out safely while the equipment is shut down.
Tips for New Work Equipment
When providing new work equipment, you must ensure it conforms with the essential requirements of any relevant product supply law (for new machinery, this means the Supply of Machinery [Safety] Regulations 2008). You must check the equipment:
- Has appropriate conformity marking and is labelled with the manufacturer’s details.
- Comes with a Declaration of Conformity.
- Is provided with instructions in English.
- Is free from obvious defects – and that it remains so during its working life.
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PAYROLL Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Demystified: Interns, Work Experience and the National Minimum Wage
During the summer months, many employers take on students and recent graduates as interns or on work experience. The issue of whether employers need to pay at least the National Minimum or Living Wage is a thorny one and one that HMRC addressed in their most recent issue of their Employer Bulletin newsletter. We explain how the rules apply.
Nature of the Relationship
The starting point is to identify the nature of the relationship between the individual and the employer. Here, it’s important to look at the facts, rather than the title given to the role. Labelling a role in a particular way does not determine whether the National Minimum Wage (NMW) applies – rather, the question is whether the individual meets the definition of a worker for the purposes of the legislation.
Interns
The term ‘intern’ is not defined in the NMW legislation. However, HMRC note in their article that ‘internships are sometimes understood to be positions requiring a higher level of qualification than other forms of work experience and are associated with gaining experience for a professional career’. An internship may be a gateway to a permanent role.
If the internship is paid, the intern is likely to be a worker for the purposes of the NMW legislation and therefore entitled to the National Minimum or Living Wage for their age. Even if the internship is not paid, the intern may still be a ‘worker’ and entitled to the National Minimum or Living Wage if they are promised a contract of future work or future pay. The fact that an intern is gaining experience to better equip them for a future role does not mean that you can pay them less than the statutory minimum.
Work Experience
The term ‘work experience’ is usually used to refer to period of time that a person spends with a business learning about working life and the working environment. The nature of work experience roles can vary greatly.
Again, the need to pay the National Minimum or Living Wage to a person on work experience depends on whether that person is a worker for the purposes of the legislation. However, there are some specific exemptions of relevance to work experience placements.
Students undertaking work with you as a required part of a UK-based further or higher education course do not qualify for the National Minimum or Living Wage if their placement with your organisation does not exceed 1 year. However, the exemption does not apply if the work that is being undertaken is not related to their course.
If you offer work experience placements to school students who are below compulsory school leaving age, you do not have to pay the NMW. The legislation only applies to those who have reached compulsory school leaving age. In England and Wales a person is of compulsory school age until the last Friday in June of the school year in which their 16th birthday falls.
Rates
If a person on an internship or work experience counts as worker and is therefore entitled to be paid at least the statutory minimum, the amount that you must pay them depends on their age. Workers aged 23 and above are entitled to at least the National Living Wage, set at £10.42 an hour since 1 April 2023.
Workers under the age of 23 are entitled to at least the NMW for their age. Since 1 April 2023, this is set at £10.18 per hour for workers aged 21 and 22, £7.49 per hour for workers aged 18 to 20 and £5.28 per hour for workers who have reached compulsory school leaving age and who are under the age of 18.