Rules May Be Rules but Blanket Policies Are Unwise

Some forms of misconduct may appear so serious that dismissal is the only option. However, one case in which a hospital radiographer was sacked for mishandling confidential patient information showed that blanket policies are rarely a good idea and that room should be left for considering each case on its own facts.

The woman had used confidential information in compiling her defence to a disciplinary charge. The manager who summarily dismissed her took the view that she had shown a complete disregard for the importance of patient confidentiality and that, regardless of any extenuating circumstances ‘a breach is a breach’. Her internal appeal against that decision was subsequently rejected.

In upholding her unfair dismissal claim, an Employment Tribunal (ET) noted that she had felt isolated at the time and was unaware that, by taking steps to defend herself, she was breaching patient confidentiality. By his rigid adherence to the rules, the manager had placed himself in a straitjacket and the appeal procedure had been wholly inadequate.

In rejecting the employer’s challenge to that ruling, the Employment Appeal Tribunal could find no fault in the ET’s conclusion that that the woman’s dismissal fell outside the band of reasonable responses to her misconduct. Other issues in the case, including as to whether the dismissal was also wrongful and whether there had been any contributory fault on the woman’s part, were sent back to the same ET for further consideration.

Whistleblower Finally Wins Case Against HSBC After 13 Years

After thirteen long years a whistleblower has finally prevailed in his case against HSBC banking group. This ruling will lead to a £4 million financial award getting distributed across 6,700 people who previously held credit cards with either HFC Bank or John Lewis Financial Services; both of which became part of HSBC after a merger in 2003.

Solicitor Nicholas Wilson, 59, has been relentless in his goal of pursuing a case against HFC, which he always stated were responsible for mistreating credit card holders who struggle to make payments.

Mr Wilson of Hastings, Easy Sussex always asserted that the HFC’s actions were illegal in regard to dealing with card charges, and although The Financial Conduct Authority (FCA) reviewed his case on a previous occasion, this second hearing ruled that between 2003 and 2009 clients in debts were indeed subjected to an unfair referral in which their debt was increased by 16.4% of the balance amount, which HFC called a “debt collection charge”.

Mr Wilson “lost everything” in his pursuit of justice against HSBC. He lost his job as a solicitor at the firm he worked for, and now repossession of his personal property is underway. He also believes his whistleblowing caused to him being sacked in 2006 by the law firm he worked for. He asserts that major figures of the financial and political worlds “closed ranks” to protect their own interests from scandal.

His case against HSBC began when he worked as a solicitor to investigate whether HFC were unfairly charging customers. His complaint to the Financial Services Authority, the FCA’s predecessor, was rejected as the organisation ruled the issue was outside its authority.

It was only when Mr Wilson later contacted the Office of the Complaints Commissioner with his concerns that the issue was fully addressed. In December 2015 the Commissioner acknowledged the charges and criticised the FCA for showing behaviour of a “negligent” nature that was “bordering on the farcical”.

Under pressure from the Office of the Complaints, the FCA was forced to conduct a deeper enquiry into the HFC’s actions and found that approximately 6,700 HFC customers had paid all or some of the debt collection fee they were unfairly charged for, and were therefore eligible for protection

The FCA has released information of how HSBC has made voluntary plans for a compensation scheme of £4m to be distributed across those customers who have suffered financially as a result of paying “unreasonable” debt collection charges imposed by the bank’s subsidiaries.

This miscalculation has resulted in approximately 350 accounts being overcharged, leading HSBC to announce that “customers will receive redress where they paid more than the actual and necessary cost of collecting their debt.”

HSBC has also promised to credit these customers with an additional 8% interest. A statement has been released:

This is a historical issue, dating back to the period between 2003 and 2009. We have revisited the debt collection charge and, as a result, a small number of HFC and John Lewis Financial Services Limited customers may be due a refund. We will be directly contacting these customers shortly.”

For Mr Wilson, this win does not fully reflect the inaccuracy carried of HFC charges. He believes hundreds of thousands of other customers have also been overcharged, although this has been denied outright by both HSBC and government watchdogs.

Following the tribunal hearing Mr Wilson made the following statement:

After all the abuse and derision about my HSBC allegations, it feels great to be vindicated. But the truth about HSBC is still not acknowledged. There are a great many more than the alleged 6,700 customers. When I left my firm there were 80,000. And that’s just the one firm.”

Plumbing Firm Loses Appeal In Landmark Gig Economy Ruling

In the greatest victory yet for a gig economy tribunal hearing, a plumber has won an employment rights case for a second time despite an appeal by his ex-employer.

Gary Smith worked as a self-employed plumber for the revered London firm Pimlico Plumbers over the course of a six year period. He took the firm to tribunal in 2011 to challenge his official status as a self-employed worker. After winning his case in 2014, Pimlico Plumbers launched an appeal which was finally heard in February 2017 and again saw Mr Smith win.

This marks a major ruling in employment law, as it is the first major undertaken by an employer of the gig economy to be rejected at tribunal. This loss is not a good sign for other businesses hoping to reverse recent tribunal rulings of a similar nature.

The claim brought by Mr Smith challenged legislation deeming him a self-employed contractor rather than a full employee. Although Smith was VAT-registered and paying tax in accordance with self-employed regulations throughout his six years at Pimlico Plumbers, he did not work for any other business during that time. He claimed this was due of a contract agreement that made him “tightly controlled” by the firm, and therefore found it it difficult to seek additional employment.

After Mr Smith suffered a heart attack in 2010 he requested the business reduce his working hours from five days a week to three. Pimlico refused and Mr Smith was allegedly dismissed shortly afterwards because of this.

Pimlico Plumbers founder, Charlie Mullins, disputes the claim, saying that workers are hired on a self-employed basis with a generous fee of £80,000, for which the company in return expect workers to provide their own materials for their daily job duties .

Pimlico Plumbers is one of the most prestigious plumbing businesses in Britain, having acquired a value in the region of £75 million since Mr Mullins, a prominent Tory Party donor, founded the company 45 years ago.

Mr Mullins expressed relief that gig economy law is now being clarified for employers. He claims Pimlico Plumbers has benefited from the change and joked “Like our plumbing, now our contracts are watertight.”

Key businesses of the gig economy like Deliveroo, Uber and City Sprint have been in the spotlight recently in publicised cases launched by employees with concerns over their status as a self-employed worker, and what the expected duties of this should involve.

Each of these businesses has lost at tribunal, resulting in Deliveroo having to pay all self-employed staff the minimum wage, City Sprint needing to pay self-employed workers holiday pay, and Uber no longer being able to class workers as self-employed at all.

Lord Justice Underhill, a Court of Appeal Judge at the Pimlico ruling, believes employers should not accept the result as an indication of forthcoming legislation for the gig economy: “They should be careful about trying to draw any very general conclusions from it” he said.

A team of legal experts has been commissioned by government officials to determine a fair criteria for the expectation of gig economy workers. The investigation will be led by Mathew Taylor, the chief executive of the Royal Society for the Arts.

Issues for the team of analysis will include issues of pay during periods of holiday, sickness and maternity leave, and issues of pension employment and job security. The findings are due for publication later this year.

Report Into Tribunal Fees Leads To Widespread Criticism

A much anticipated government report into how tribunal fees are affecting the volume of tribunal cases instigated by UK workers has at last been published, and, as suspected, it shows a major decline has occurred since the introduction of the fee system in July 2013. This follows a TUC report issued last year that also showed serious failings by the fee system. 

Without access to a fair hearing, workers have instead explored other means of expression. The report details how the ACAS conciliation service has seen a major rise in workers contacting them for advice on various employment disputes over the past four years. This reveals that a third party outlet where workers can express their concerns is clearly needed.

Unison trade union has condemned the current system as ‘ill-judged’ and believes it has fallen short of its goal of saving taxpayer money by reducing the number of false claims put forward each year. In actuality the system has only served to make those seeking justice for genuine grievances less likely to reach out for help due to excessive costs.

Dave Prentis, general secretary of Unison, expressed support for the report findings: “The introduction of fees was a terrible decision […] Tribunal fees should be scrapped immediately before any more law-breaking employers escape punishment because wronged workers simply don’t have the cash to take them to court.”

The report also recorded how a significant decrease in claims occurred between 2012-14, which is well below the numbers expected. There was a 70% drop from 5,847 to 1,740 cases recorded.

Most troubling of all is the kind of cases that have diminished. Disability discrimination cases are down 51%, race discrimination hearings have fallen by 55%, and sex discrimination cases have dropped 71%. Statistics show that low-paid women have been the group to have suffered more than any other under the fee system.

Increasingly there are calls for current tribunal fees, which can be as high as £950, to be altered. One of the most vocal opponents is Frances O’Grady, the General Secretary of TUC, who states:

Charging people up to £1,200 to take claim has been a gift to Britain’s worse bosses. And it’s allowed discrimination at work to flourish unchallenged. Until the government commits to abolishing fees, its commitment to ‘improve workers rights’ in post-Brexit Britain looks pretty hollow.”

Reacting to the report, ministers have already made a list of suggested alterations in a bid to ensure all workers make their voices heard across Britain, regardless of their background or financial status.

Among these proposals is a monthly threshold for a full fee remission rise, from £1,085 to £1,250. This is an amount that better reflects the income of workers earning the national living wage. Other suggestions include giving financial assistance to workers who live with a partner and/or children .

Leader of Unite, Len McCluskey, has expressed his organisation’s feelings towards the report: “The actual facts are that when working people are priced out of justice, and it is made exceptionally difficult for their unions to pursue it on their behalf, then the only winners are bad employers.

In contrast to those who seek an outright removal of the fee system, Justice minister Sir Oliver Heald reacted to the report’s findings with a mixed opinion: 

Sir Heald also revealed that to prevent the loss of tribunal hearings, the existing Help With Fees system will henceforth receive greater government support, and that a green paper will be issued to establish the legal rights involved.

Unison plans to challenge the fee system in a hearing before the Supreme Court on 27 and 28 March 2017.

Inventive Employees and Exceptional Rewards – Court of Appeal Test Case

Companies are entitled to reap the benefits of their employees’ inventiveness – but patent law does require compensation to be paid to those whose ideas make an outstanding contribution to profits. In an important test case, the Court of Appeal analysed the circumstances in which such exceptional rewards are justified.

A professor employed by a global company had invented a blood glucose testing device that, after it was patented, generated benefits worth £24.5 million to his employer. Part of his work in developing the device had been carried out in his own time and it had been produced at almost no cost to the company. He argued that his invention had brought an outstanding benefit to his employer and sought compensation pursuant to Section 40(1) of the Patents Act 1977.

His claim was, however, rejected by a hearing officer appointed by the Comptroller-General of Patents and that ruling was subsequently confirmed by a judge. Amongst other things, the hearing officer noted that the profits generated by the device were dwarfed by the company’s overall multi-billion-pound turnover.

In seeking to re-open his case, the professor pointed to the great disparity between the level of his remuneration and the profits yielded by his invention. No other single patent had achieved an equivalent rate of return for his employer. Had he worked for a smaller company, the outcome might well have been different and his employer had, in effect, been found to be ‘too big to pay’.

The Court accepted that it would be wrong to focus solely on a simple comparison between the benefits generated by the invention and the company’s overall profits. In dismissing the professor’s appeal, however, it found that the hearing officer had taken all relevant matters into account before concluding that the outstanding benefit test was not satisfied in the context of the company’s overall performance.