Monthly Highlights – UK Employment Law – June 2023

In this month's instalment, our team highlights the recent ACAS guidance on whistleblowing and employee absences, potential issues with legal advice privilege, workers’ rights in respect of holiday pay on termination and the use of Facebook in the workplace.  

1. ACAS Guidance

Whistleblowing at Work

ACAS have recently published new guidance on whistleblowing in the workplace. The guidance provides details on:

• Who can claim whistleblowing protection.
• The legal protections from detriment and unfair dismissal.
• The disclosures that are protected.

The guidance further highlights that whistleblowing concerns are matters made in the public interest rather than personal concerns and therefore the guidance states it is generally not best practice for an individual to “blow the whistle” through a grievance to the employer. That said, the guidance does state that a grievance can amount to whistleblowing provided it contains an appropriate disclosure of information.

The guidance further recommends that employers ensure that they take concerns seriously, that whistleblowers not face any detriment and that a whistleblower’s identity remain confidential.

Absence Trigger Points

ACAS have also released guidance for employers on absence review points, which are often referred to as “trigger points.” Trigger point systems are often based on either: 1) the number of absences an employee has within a certain period, or 2) the length of an employee’s absence.

When using absence trigger points, the guidance provides that an employer should make clear:

• What the review points are.
• The process for informing an employee that they have reached a trigger point.
• That reaching a trigger point will start an absence review.

The guidance further states that an absence review provides an opportunity for an employer to investigate the cause of the employee's absence and take appropriate steps if required. As such, employers should:

• Check on the employee's wellbeing.
• Discuss the reasons of the employee's absence.
• See how the employer can support them.

2. Legal Advice Privilege

The case of University of Dundee v Chakraborty [2023] considered whether the release of the final version of an investigation report, which contained a footnote acknowledging amendments made following “independent legal advice”, meant that privilege was waived and as such, whether the original version should be disclosable.

The facts:

• Dr. Chakraborty was employed by the University of Dundee as a post-doctoral research assistant.
• On 10 November 2021, Chakraborty raised a grievance with the university, alleging racial abuse, harassment, bullying and discrimination. While the university was investigating, Chakraborty lodged a claim with the Employment Tribunal on the grounds of unfair and/or constructive dismissal and racial discrimination.
• In February 2022, the university received an initial investigation report containing external and in-house legal advice. In March and June 2022, the report was amended, and the final version included a footnote highlighting that the report had been amended following independent legal advice. The final version was included in the tribunal hearing bundle.
• Chakraborty subsequently applied for disclosure of the original investigation report on the basis that privilege had been waived. The university’s position was that the original investigation report, although not initially privileged, acquired retrospective legal advice privilege due to the amendments made and as such, comparing the two versions of the report would ultimately reveal the nature of the legal advice received.

Findings

Both the Employment Tribunal and the Employment Appeal Tribunal ordered the university to disclose the draft report. The university appealed.

The Court of Session dismissed the appeal, agreeing with the Employment Appeal Tribunal that the original investigation report was not privileged. The Court of Session concluded that:

• It should be possible in most cases to say at the outset whether or not a document is privileged.
• The university had rightly conceded that the investigation report was not privileged at the time of its creation.
• While there may be some instances where documents revealing the content of earlier legal communication attract privilege, this was not such a case. Indeed, it would not be possible to deduce the contents of legal advice merely from a comparison between the two drafts, although on might be able to speculate.
• Further, the university had waived any legal advice privilege by revealing the contents of the advice to its internal investigator and by flagging its existence in a footnote in the final report provided to the employee.

This case is a useful reminder of the scope and limitations of legal advice privilege, and the circumstances where it can be waived. A key aspect of legal advice privilege is that the purpose of the communication or document is to give or obtain legal advice. The purpose of a grievance investigation report, however, is to carry out an investigation and establish facts. As established in this case, the fact that legal advice is later obtained on a document will not necessarily make it privileged.

3. Holiday Pay on Termination

The case of Connor v Chief Constable of the South Yorkshire Police [2023] highlights key findings in respect of workers’ rights to holiday pay.

The facts:

• Mr. Connor had been employed by the South Yorkshire Police for over 18 years before his dismissal. He worked the same hours each week.
• Whilst he was working, he was entitled to the equivalent of what he would have earned during a week’s work when he took a week’s holiday.
• A term in the employment contract set out the calculation for accrued but untaken annual leave and the payment on termination of employment.
• On termination of employment, the employer's calculation resulted in Connor receiving a lower payment than he would have received if he had taken the annual leave whilst still employed.
• Connor claimed unlawful deduction from wages but was unsuccessful in the Employment Tribunal. He appealed to the Employment Appeal Tribunal.

Findings

The Employment Appeal Tribunal confirmed that a relevant agreement cannot put the employee in a worse position financially than the employee would have been in if they had taken the leave during their employment and been paid for it as required by law. Indeed, although a relevant agreement can alter the approach to calculating accrued holiday pay, it must provide for a calculation method that is in keeping with the rights provided for in the Working Time Regulations 1998. On this basis, the appeal was allowed.

To avoid a successful claim for underpayment of wages in respect of holiday pay, employers should check how they are calculating accrued but untaken holiday leave falling under regulation 13 (4 weeks’ leave) or 13A (additional 1.6 weeks’ leave) of the Working Time Regulations on termination of employment.

4. Facebook in the Workplace

The case of Webb v London Underground [2023] highlights the Employment Tribunal’s findings in relation to an employee's private Facebook posts.

The facts:

• Ms. Webb was employed by London Underground.
• Webb posted offensive comments about the Black Lives Matter movement on her private Facebook page.
• Her Facebook page stated who her employer was, and many of her Facebook "friends" were also employed by the employer. That led colleagues to complain about her posts.
• Webb was subsequently dismissed. On appeal, she argued that her employer had breached her right to freedom of speech under Article 10 of the European Convention of Human Rights, as well as her right to a private life under Article 8.
• The manager who dealt with the appeal found Webb “entirely unrepentant” and suggested that if she had taken a different view, the outcome may not have been the same.
• Webb brought claims for unfair dismissal, race discrimination and unlawful deduction from wages, arguing on the grounds that the employer's conduct breached her rights under Articles 8 and 10 of the European Convention of Human Rights

Findings

The Employment Tribunal held that the decision to dismiss Webb was substantively fair but that it was unfair on the basis of procedural flaws by the employer, in particular how the appeal process was handled. However, given that the reason for dismissal fell within the bank of reasonable responses, the tribunal reduced the compensation awarded by 75% due to Webb's conduct and contributory fault. Webb was also successful in her unlawful deductions claim in relation to holiday pay, but her race discrimination claim failed.

The issue under consideration in relation to Article 8 of the European Convention of Human Rights was the reasonableness of an employer in relying on content from private Facebook posts for disciplinary action. The tribunal held that an employer can reasonably rely on a private Facebook page, particularly where an employer’s social media policy warns that social posts could result in disciplinary action if they were not in accordance with the employer's social media policy (as was the case in this matter).

The Employment Tribunal agreed that Article 10 of the European Convention of Human Rights was an issue. The tribunal considered whether the employer’s conduct was justified on the two grounds set out in Article 10(2) – the protection of its reputation, and the rights of other employees. The tribunal found that both grounds applied, and that the employer’s conduct was a justifiable restriction on Webb’s right to freedom of expression.

This case highlights the importance of having internal policies that set expectations in relation to social media use and potential disciplinary action. Employers may wish to consider updating their disciplinary and social medial policies to clearly state that disciplinary action may result from inappropriate conduct on social media and to set out employees’ expectations of privacy in relation to social media.