Be Aware – April 2023

This month, the IGA Legal Team provides members with advice on letters from the Data Commissioner/ICO, managing employees with significant medical conditions, time limits for employees to make an unfair dismissal claim, and writing ‘without prejudice’ letters to employees.

Unfair Dismissal: Time Limits

Dismissed employees only have a certain amount of time after the dismissal in which to bring a claim in an Employment Tribunal. The basic time limit is three months from the effective date of termination (known as the EDT), however, employees can extend that if they lodge the matter with Pre-Claim ACAS Conciliation and so it is no longer the case that, after three months, employers can breathe a sigh of relief.

If an employee misses the time limit for bringing his claim but brings a claim in any event, then the Tribunal has to consider whether it was (a) reasonably practicable to present the claim within the primary time limits (three months or extended by ACAS Conciliation) and (b) if it was not reasonably practicable, whether he or she has presented the claim within a reasonable period thereafter. This is under section 11(2)(b) of the Employment Rights Act, 1996.

If you as an employer, are faced with a Tribunal claim, it is always worth considering the time limits and jurisdiction as the very first part of any defence, to see whether the claim might be struck out on such grounds.

In a recent case (Cygnet Behavioural Health Limited v Britton), the Employment Appeal Tribunal (EAT) gave a relatively pro-employer decision and on the facts of that case found that the employee was out of time.

Facts

In the claim, the Claimant had missed the primary time limit and had not then submitted his claim for a further 62 days. He pleaded a number of problems, including dyslexia, mental health problems and an ignorance of the time limit. He gave evidence that because he had started another job and was dealing with other issues in the claim (he had to deal with a Statutory Regulator of Healthcare Professionals during the time when he should have submitted the claim) he said that took up a lot of his time and so he had missed the original time limit.

The original Tribunal gave a judgment entirely in favour of the employee finding that his mental health, dyslexia and problems with his health, plus his new jobs and time dealing with the Regulator, had meant it was not reasonably practicable to meet the time limits.

The employer appealed that decision to the Employment Appeal Tribunal, that the decision was ‘perverse’.  The argument on appeal that the decision is perverse is a very high burden for the employer and to overturn the original decision the EAT must find that the original Tribunal’s decision is irrational, fundamentally wrong, outrageous, or flies in the face of properly informed logic.

On the facts here, however, the EAT found those tests were met. It decided that he had been able to do a great many things from his dismissal to the expiry of the primary time limit and thereafter, including working various jobs, moving house and engaging an appeal, liaising with ACAS, etc. All of this meant there was no logical reason why he could not have met the original time limit or submitted the claim within a reasonable time thereafter.  The claims were accordingly struck out.

Employers should note however that the EAT also commented that, although the test for unfair dismissal claims of reasonable practicality failed, if any claim for discrimination had been brought, then there is a wider and more lenient test on the employee, known as the ‘just and equitable test’, which may well have been satisfied. Tribunals are far more lenient in such cases.

Disciplining Disabled Employees

One of the common difficulties within the workplace is managing employees with significant medical conditions. Employers are often reluctant to take disciplinary steps for fear of overstepping the mark. This in turn can lead to employee’s negative behaviour going unchecked.

Whilst it is right and proper that employers make reasonable adjustments for disabled employees, the recent case of McQueen v The General Optical Council provides some general guidance for employers on  where a disabled employee be disciplined for something that is unrelated to their disability.

Facts

In the case of McQueen v The General Optical Council, the Claimant was employed as a registration officer. It was agreed and accepted that he had a disability for the purposes of the Equalities Act as he suffered from dyslexia, Asperger’s, neurodiversity and hearing loss. Whilst employed there were two incidents referred to as meltdowns, which led to the claimant being dismissed. The Claimant argued that his dismissal was due to his disabilities. The Employment Tribunal found that the Clamant was dismissed due to his short temper and resentment at being told what to do, and not his medical conditions. The Claimant was unsuccessful as the claimant’s disability was not the cause of the termination.

On appeal the Claimant argued that the tribunal should have considered whether any disabilities had been a factor in the Claimant’s conduct. That the disability does not necessarily need to be the sole or even main reason any link need only be trivial for protection to arise.

The EAT rejected this. Where it is found that the effects of the disabilities did not play any part in the Claimant’s conduct, there was no need to consider if the treatment was partly because of disabilities.

The EAT gave further guidance on how to consider such cases going forward, suggesting four questions to consider:

(i) what are the disabilities;

(ii) what are their effects;

(iii) what unfavourable treatment is alleged in time and proved and;

(iv) was that unfavourable treatment “because of” an effect or effects of the disabilities.

In Conclusion

Whilst employers can be intimidated by disabilities within the workplace, this case provides useful guidance in how to approach such conditions. It reinforces the position that such employees can still be effectively managed, provided care is taken and the correct processes are put in place.

Without Prejudice Correspondence

In Employment Matters

A common problem employers face is dealing with employees who are off sick or in breach of contract. As the management of such issues can be onerous, employers can at times seek to circumvent the necessary processes in order to reach an amicable solution with the employee. Whilst there is nothing wrong with that per se, recent case law highlights how important it is that an employer only seeks to circumvent due process with care.

Facts

In the case of Meaker v Cyxtera Technology UK Ltd the employee held a manual role that involved heavy lifting and lone working on night shifts. Unfortunately, the employee suffered a back injury resulting in an extended period of time off work. As part of managing the period off work the employer obtained occupational health reports where it was agreed that the injuries were such that they were likely to be permanent and would impact on carrying out weight bearing work.

After receiving the reports, the employer was considering terminating the employment and the HR manager had a ‘conversation’ with the employee to discuss the ‘possibility’ and to discuss a settlement agreement. A second conversation was held where the HR manager made it clear that the employer believed that all alternate roles had been considered and exhausted and a ‘without prejudice’ letter was sent to the employee 05 February; and received 07 February, stating that the parties had mutually agreed to the termination on the grounds of capability and offered the employee an additional payment over his contractual entitlements on condition that he signed a settlement agreement. Unfortunately, there was no mutual agreement and the employee did not agree to the terms. When the offer was rejected, the employee was terminated anyway by letter dated 14 February and the employee brought ET Proceedings.

The question for the court was whether the employee was terminated by the first letter dated 07 February or by the second letter dated 14 February

Both the ET and the EAT held that the first letter could be considered by the court despite it being marked ‘without prejudice’ and that the terms of the letter were sufficiently clear that the employer had unilaterally terminated the employment contract despite the mistaken belief of agreement between the parties.

In Conclusion

Whilst in the current case the employees claim was out of time, the findings by the court that a ‘without prejudice’ letter can correctly be considered as a termination letter will have a chilling effect.

Many employers have protected conversations with employees and use ‘without prejudice’ letters to initiate pre-termination negotiations on the assumption that the contents cannot be referred to or disclosed in subsequent tribunal proceedings. The fact that the EAT in this case held that the letter could be read in two parts, and that any without prejudice markings only applied to the part concerning the proposed settlement should be noted.

It is vital going forward that care is taken to ensure such letters are not only properly drafted to ensure they have protected status and are compliant with the ACAS Code of Practice on Settlement Agreements, but that any wordings do not give rise to an unintended or premature dismissal. Any failure to do so could result in a fair disciplinary/capability process becoming not only unfair, but discriminatory.

The Information Commissioner; Registration and the Data Protection Fee

“I have recently received a number of letters from the ‘Information Commissioner/ICO’ telling me I need to pay a ’Data Protection Fee’. I have never heard of them before. Is this a scam?”

We cannot say whether the letter you have received is or is not real. If you are at all concerned, we would strongly advise caution. That said, the Information Commissioner or ICO is a legitimate organisation, and it is likely that a fee is due.

Who are the ICO?

The ICO is the UK’s independent body responsible for upholding information rights and data protection. Their main responsibility is the Data Protection Act 2018, but they are also responsible for the Freedom of Information Act 2000, the Network and Information Systems Regulations 2018, the Electronic Identification and Trust Services Regulations, and Investigatory Powers Act 2016.

They have become more well known in the last few years as a result of the GDPR and the overhaul of data protection legislation in the UK.

Do I have to pay a fee, and if so, why?

The ICO is funded, at least in part, by a levy placed on data processors. Under the Data Protection Act 2018, organisations processing personal data must pay a data protection fee, unless they are exempt. As personal data includes people’s names, addresses or telephone numbers, where you hold customer data for billing purposes etc… it is likely that you will be required to pay a fee.

The ICO have provided a handy tool on their website in order to help businesses assess whether they are required to register with the ICO as a data processor and if so whether they are liable to pay a fee. This can be found at:

https://ico.org.uk/for-organisations/data-protection-fee/self-assessment/

Conclusion

In conclusion it is highly likely that this is a genuine letter and that you are required to be both registered and that you are liable for a fee. In fact, it’s likely that you have bene for some time. Whether you have received a letter or not, we would advise all members to go to the ICO website address above and take 45 minutes to go through the assessment. If you are required to register and pay a fee you will then be referred to the appropriate next steps.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us in 01788 225 908 at any stage for advice and assistance as appropriate.