Making and Dealing with Complaints and Whistle Blowing
Employers should make it clear that it is both safe and acceptable for workers to raise any concern they may have about misconduct or malpractice in the workplace.
A procedure should be adopted that covers the following:
• a clear statement that malpractice is taken seriously in the workplace
• clear guidance as to which members of staff should be approached initially by workers
• respect for the confidentially of staff raising concerns
• define the specific circumstances where a worker may make an external disclosure
• how to treat any recommendations which may be made by the recipient of the information
• access to independent advice.
Where a protected disclosure has been made, employers should take all reasonable steps to try and ensure that no colleague, manager or other person under their control victimises the whistleblower.
Confidentiality clauses in severance agreements and contracts should be reviewed.
Employers should review the terms and conditions in their arrangements with contractors to ensure that those who work for them also have access to the employer’s whistle blowing policy.
How to Conduct a Grievance Hearing
Managers should be trained in their use and employees should be given information on how grievances should be handled.
An employee must inform the employer of the grievance in writing, if they are to use it as a basis for an employment tribunal application. Following this first step the second step is for the employer to invite the employee to a meeting and remind the employee that they can be accompanied by a work colleague or trade union official.
The invitation should be within 28 days of receiving the grievance. After the hearing the employee should be given the decision in writing and advised of their right to appeal. If the employee wishes to appeal it is appropriate to hold the appeal with a more senior manager. Again the employee should be advised of the right to be accompanied. The appeal decision should be given to the employee in writing.
It should be noted that Employment Tribunals can adjust compensation awards by between 10 and 50% for failure by either party to adhere to the 3 step procedure.
Communication Monitoring and Evaluation
The obligation to inform can be done by simply informing staff that communications may be monitored for particular purposes such as abuse of the internet or e-mails. A statement could be included in the staff handbook or disciplinary procedure, setting out clearly what use of the telephone, e-mail systems and internet access is authorised and what use is unauthorised.
To inform external telephone callers or senders of e-mail the best way is to include a recording, or statement, at the start of any call, or e-mail, informing the caller, or recipient, of the likely monitoring.
Employers should have guidelines to maintain the confidentiality of any information obtained from monitoring and that the information is to be accessed and used only by named people.
Introduce appropriate software that blocks access to specific sites such as pornography or adult entertainment.
The Human Rights Act 1998
This Act allows UK law courts to enforce the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. The most important of these for employers are:
• Article 4 – prohibiting slavery and forced labour
• Article 6 – the right to a fair trial
• Article 8 – the right to respect for private and family life, home and correspondence
• Article 9 - freedom of thought, conscience and religion
• Article 10 - freedom of expression
• Article 11 - freedom of assembly and association including the right to join a trade union
• Article 14 - the right not to suffer discrimination in the enjoyment of rights under the convention.
The Act does not apply directly to the private sector and workers cannot take their employer to court for infringement of these rights. However, employment tribunals and other courts have to interpret existing employment law, wherever possible, in a way that is compatible with these rights.
These rights must not be enforced in a way that will prevent different people from enjoying similar or other rights e.g. the employee’s right to privacy and the employer’s right to reasonable rules governing the work environment, and must be proportionate in that they can be ignored if the employer has sound and objective business reasons for a policy or practice that infringes a person’s right e.g. a woman wishing to work part-time for family reasons but the nature of the job prevents part-time work.
Some work areas where these rights may have an impact is on the observance of religious festivals etc., dress and appearance codes, any discrimination on the basis of sexual orientation, excessive working hours, and flexibility issues at work. These issues will be of particular importance if they are a factor in a person’s dismissal. It is unlikely, however, to have much impact on the private sector for some considerable time.
Employer Monitoring of Workplace Communication Tools
Monitoring of employees’ use of the company’s telecommunications system, including e-mail and the internet, is now illegal under the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 except in certain specified circumstances.
The Regulations give lawful authority to the employer to intercept internal telephone calls and e-mails as follows:
• to establish the existence of facts relevant to the business e.g. to resolve a contractual dispute done over the telephone
• if it is done for the purpose of monitoring or recording for compliance purposes
• to demonstrate standards to be achieved by persons using the system e.g. for quality control and staff training purposes
• if it is in the interests of national security or for the purpose of preventing or detecting crime
• if it is done to investigate or detect unauthorised use
• to monitor for operational purposes such as protecting against viruses and making routine interceptions such as forwarding e-mails to correct destinations
• if it is in connection with monitoring certain confidential telephone counseling service e.g. businesses own welfare helplines
• to gain access to routine business communications to check voice mail systems when staff are on holiday or sick leave.
Lawful authority is conditional on the employer having made all reasonable efforts to inform all users of their own systems that interception might take place even though express consent is not required.
Employers may be liable under the principle of vicarious liability for any harassment or defamation of other people through the e-mail so monitoring is an important legal right.
There is a statutory duty for all companies to have a grievance procedure. The Advisory Conciliation and Arbitration Service (ACAS)
has produced a Code of Practice on Disciplinary and Grievance Procedures. This advice is echoed in the Codes of Practice issued under the Equality Act 2010
Whilst these Codes are not legally binding, if the advice contained in them is not followed without very good reasons for not doing so any claims brought before an employment tribunal by an employee under these and unfair dismissal law are likely to succeed.
This good advice is buttressed by the legal requirement for which must be within 4 weeks of employees issued with contracts of employment; employers should include in the written particulars of the terms and conditions of employment a note specifying (by description or otherwise) a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to their employment, and the manner in which any such application should be made.
Where there are further steps consequent to any such application, the note must either explain those steps or refer to the provision of a document explaining them which is reasonably accessible to the employee.
The worker also now has the right to be accompanied by a companion, who may be a fellow employee or a full-time trade union official (or lay trade union official). It is the workers choice and a trade union official can be asked even if the employer does not recognise a trade union or recognises a different one to that of the official requested to attend.
A grievance hearing to which this right relates is one about the performance (or lack of performance) of a statutory or contractual duty by the employer. If the meeting date suggested by the employer is inconvenient for the companion, the worker can insist on another date providing it is within five days of the original date.
Whistle-blowing in the Workplace
The Public Interest Disclosure Act 1998
provides for specific protection for employees who make protected disclosures in specified circumstances. The types of protected disclosures are as follows:
• that a criminal offence has been, is being or is likely to be committed
• that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject
• that a miscarriage of justice has occurred, is occurring or is likely to occur
• that the health or safety of any individual has been, is being or is likely to be in danger
• that the environment has been, is being or is likely to be damaged
• that information tending to show any matter falling within the above categories has been, is being or is likely to be deliberately concealed.
The worker must raise the matter in a prescribed way in order to be protected against unfair dismissal and victimisation. The worker must, in all but the most extreme circumstances, raise any concern internally first to the following:
• the employer or to some other person who has legal responsibility for the matter
• the individual responsible for the conduct
• some other person in accordance with the employer’s procedure
• the legal advisor in the course of obtaining legal advice.
There are certain circumstances where a worker can make the disclosure externally, without raising it internally, to a person or regulatory body prescribed by the Secretary of State e.g. the Health and Safety Executive. The worker will have to show that they reasonably believed that the disclosure is substantially true and the disclosure is not made for personal gain.
Gagging clauses in employment contracts are void in so far as they conflict with the Act’s protection.
The Data Protection Act 1998
The Data Protection Act 1998
gives a right to privacy in the processing of personal data. Processing covers any operation involving data including its collection, recording, use, retrieval, consultation, disclosure , adaptation, alteration, combination, destruction or erasure.
Data covers not only automatically processed information, but also manual records kept as a set of information relating to an individual or by reference to criteria so that specific information relating to particular individuals is readily accessible.
All personal information is subject to eight data protection principles. These require that the data must:
• be processed fairly and lawfully
• not to be used for a purpose for which it was not collected
• be adequate , relevant and not excessive for the purpose
• be accurate and up to date
• not be kept longer than necessary
• be processed in accordance with the data subject’s rights
• be kept secure and protected from unauthorised processing, loss or destruction
• be transferred only to those countries outside the European Economic Area that provides adequate protection of personal information.
Data can only be processed with the person’s consent, unless it is necessary in order to perform a contract or to comply with any legal obligations to which the data controller is subject.
There are additional conditions to comply with where the data is sensitive personal data i.e. information on the racial or ethnic origin of the data subject, political religious or other beliefs, trade union membership, physical or mental health, sex life, actual or alleged committal of offences and any proceedings relating to the committal of an offence and sentences.
Not only must the eight principles be complied with in these cases, but the data subject must have given their explicit consent to processing the personal data. If they have not, then the employer must show that the processing is necessary for the purposes of exercising or performing any right or obligation which is imposed by law on the data controller in connection with employment, or is necessary to protect the vital interests of the data subject where consent cannot be reasonably obtained.
In addition, the Act restricts the use of automated decision making (e.g. psychometric tests).
Individuals have access to, and can correct, any personal data, including manual files. Data controllers are liable for any damages caused by breaches of the Act. Data collections must be notified to the Data Protection Commissioner, who can issue enforcement notices in respect of a breach. Breaches of notification requirements and the procurement or sale of personal data are criminal offences.
Data Protection: Principles of Good Practice
Employers should consider their use of data, why they need it, what they use it for and how long they keep it.
A system should be put in place to ensure that the information is accurate and updated regularly and can be disposed of once it is no longer necessary for its purpose. Employees could be given copies of the information held on them on an annual basis and asked to confirm the accuracy of the information.
Employers need to be able to identify which data they have, why they have it, and who can access it in order to prove if necessary that they have taken all reasonable steps to prevent any loss occurring.
A person should be appointed to take overall responsibility within the company for the way it collects information, how that data is stored and by whom, and how it can be processed by its subject and kept confidential. This person would also be responsible for how data is disclosed internally and externally and to whom.
Employers will also need to comply with the Code of Practice on the Use of Personal Data
issued by the Data Protection Commissioner. It covers standards in relation to data generated in recruitment, shortlisting, interviewing and selection procedures; retention of records; access by management, third parties and the subject to employee files; and recording of disciplinary decisions.
In addition recommendations about the monitoring and use of telecoms facilities, including personal e-mails and access to internet sites, are included.
In particular, the Code says that employers should only monitor after first establishing that there is a problem that calls for monitoring. In respect of e-mail, it suggests that the first step would be to carry out “traffic” monitoring to determine whether the system is being abused, and in relation to telephone monitoring it suggests that an itemised call record may be an appropriate initial step.
The Code makes it clear that there should be monitoring where there is a clear business need and the methods used to carry it out should be proportionate and not unduly intrusive into an individual’s privacy.