Credit Management December 2019

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HR MATTERS ROUNDUP CASE(S) DISMISSED! Two cases illustrate the challenge of unfair dismissal. WHAT can an employer do if an employee refuses to work – dismiss? That question was posed in Pazur v Lexington Catering Services. Workers are protected against detriment and dismissal if the reason for the treatment is that they have refused to comply with a requirement that would breach the Working Time Regulations (WTR). Mr Pazur worked as a kitchen porter for Lexington Catering Services (LCS). Each week, he was assigned to work for various clients at different locations. During an eight-hour shift with a particular client he was denied his statutory right to a rest break of at least 20 minutes. Pazur walked out despite the client wanting him to work longer. He subsequently complained to LCS but his complaints were not followed up. Pazur was later assigned to work for the same client but he refused to return. This led to LCS first threatening him with dismissal before subsequently dismissing him. He claimed that the threat to dismiss was an unlawful detriment and that his dismissal was automatically unfair. He argued that the reason for both the threat to dismiss him and for his subsequent dismissal was that AUTHOR – Gareth Edwards he had refused to comply with LCS’ requirement that he work without a rest break in contravention of the WTR. The Employment Tribunal (ET) rejected both the unlawful detriment and automatic unfair dismissal claims. The ET was not satisfied that Pazur had provided sufficient evidence to establish that his refusal to return to work for the client was because he expected to be required to work without a rest break. When giving evidence about the reasons why he had refused to return to the client, Pazur cited the unpleasant behaviour of the head chef as well as the rest break issue. However, the Employment Appeal Tribunal allowed Pazur’s appeal, finding that the requirement to work in contravention of the WTR was a material influence on his refusal to return to the client. There was no need for it to be the only reason. Whistleblowing disclosures KNEE-JERK employment decisions come with a risk that something has been missed or not given proper consideration, and Okwu v Rise Community Action illustrates the problem. Rise Community Action employed Miss Okwu as a specialist worker. Performance issues were raised during Okwu's three-month probationary period and Rise extended her probation by a further three months. Okwu then wrote a letter to Rise expressing concerns in relation to her employment contract. The concerns also included an allegation that Rise was in breach of the Data Protection Act by failing to provide her with a mobile phone and secure storage when dealing with sensitive and confidential information relating to service users. Rise dismissed Okwu on performance and conduct grounds and on the basis that her letter revealed her contempt for the charity. Okwu brought a claim against Rise that she was dismissed for making protected whistleblowing disclosures and that her dismissal was therefore automatically unfair. The Employment Tribunal (ET) dismissed her claim on the basis that the issues she raised were personal contractual matters and not therefore in the public interest. Okwu appealed. The Employment Appeal Tribunal (EAT) allowed the appeal. The question was whether Okwu had disclosed information that she reasonably believed He claimed that the threat to dismiss was an unlawful detriment and that his dismissal was automatically unfair. was in the public interest and which tended to show breach of a legal obligation. Although Okwu’s letter contained information that was personal to her, the EAT highlighted that her data protection disclosures related to the sensitive information of service users. It was therefore hard to see how this was not in the public interest in the reasonable belief of Okwu. The EAT also found that the ET did not make a clear finding in relation to the reason for Okwu’s dismissal. In particular, the ET did not engage with Okwu's argument that there had been no performance or conduct issues between the probation review and the sending of her letter, and that the disclosures in her letter must therefore have been a material factor in the decision to dismiss her. Employers should be careful not to dismiss complaints out of hand. They should deal with complaints using available internal processes such as grievance and whistleblowing procedures and ensure those complaints do not inform detrimental management decisions in respect of the member of staff. Even where staff have less than two years’ service, management decisions should be considered carefully and the reason for sanction or dismissal should be both clear, fair and backed up by evidence. Gareth Edwards is a partner in the employment team at VWV. gedwards@vwv.co.uk. The Recognised Standard / www.cicm.com / December 2019 / PAGE 50
THE CICM MAGAZINE FOR CONSUMER AND COMMERCIAL CREDIT PROFESSIONALS CM April 2016.indd 1 22/03/2016 11:42 THE CICM MAGAZINE FOR CONSUMER AND COMMERCIAL CREDIT PROFESSIONALS CM September 2016.indd 1 23/08/2016 14:30 THE CICM MAGAZINE FOR CONSUMER AND COMMERCIAL CREDIT PROFESSIONALS CM July/August 2016.indd 1 21/06/2016 12:00 THE CICM MAGAZINE FOR CONSUMER AND COMMERCIAL CREDIT PROFESSIONALS CM June 2016.indd 1 20/05/2016 11:19 influencer passionate CICM ambassador progressive thinker collaborative integrity strategic engaged committed Advancing the credit profession dynamic THE CICM 2020 ELECTIONS ARE COMING SOON… Could you be a member of the CICM Advisory Council? Register your interest, or ask any question about the process by contacting the CICM Governance team at governance@cicm.com CM Credit Management magazine for consumer and commercial credit professionals CREDIT MANAGEMENT CM APRIL 2016 £10.00 FALLING STAR THE INDUSTRY SPEAKS OUT ON THE EU REFERENDUM www.cicm.com CREDIT MANAGEMENT CM SEPTEMBER 2016 £10.00 DESERT STORM THE CHALLENGE OF DOING BUSINESS IN SAUDI www.cicm.com CREDIT MANAGEMENT CM JULY / AUGUST 2016 £10.00 TOOTH AND NAIL SPEAKING OUT ABOUT DIRECT DEBIT CLAWBACKS THE CICM'S HIGHLY ACCLAIMED MAGAZINE www.cicm.com CREDIT MANAGEMENT CM JUNE 2016 £10.00 BROKEN CHINA THE DRAGON RUNS OUT OF PUFF www.cicm.com SPECIAL FEATURES IN DEPTH INTERVIEWS ASK THE EXPERTS GLOBAL NEWS LEGAL MATTERS INTERNATIONAL TRADE CURRENCY EXCHANGE HR MATTERS MOBILE DIGITAL EDITION EDUCATIONAL STUDIES THE LEADING JOURNAL FOR CONSUMER AND COMMERCIAL CREDIT PROFESSIONALS TO SUBSCRIBE CONTACT: T: 01780 722903| E: ANGELA.COOPER@CICM.COM
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Page 5 and 6: The Recognised Standard / www.cicm.
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Page 9 and 10: Government framework won't alter la
Page 11 and 12: NEWS IN BRIEF Good CICMQ news for p
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