Employment Law E-Bulletin Issue 46

• Sports Direct warehouse workers to receive back pay
• Royal Mail Group Limited v Jhuti UKEAT/0020/16 – Dismissal automatically unfair due to protected disclosure even though decision-maker was unaware of disclosure
• TUC survey on sexual harassment at work

Sports Direct warehouse workers to receive back pay

Sports Direct warehouse workers are to receive back pay totalling £1 million after the retailer admitted breaking the law by not paying the national minimum wage. This resulted from the compulsory and unpaid searches that the company carried out when workers were leaving the warehouse at the end of their shifts. The retailer will also be fined £2 million by the Department for Business, Energy and Industrial Strategy.

This is a useful reminder of the sanctions that employers can face if they fall foul of the national minimum wage legislation. Maximum penalties were increased in April this year, rising from 100% to 200% of the underpaid wages, with a maximum of £20,000 per underpaid worker.

Royal Mail Group Limited v Jhuti UKEAT/0020/16 – Dismissal automatically unfair due to protected disclosure even though decision-maker was unaware of disclosure

Ms Jhuti was employed by the Royal Mail Group (Royal Mail) from September 2013 until October 2014. Soon after she joined Royal Mail, she suspected that another employee had breached Royal Mail’s rules and the requirements of its regulator, Ofcom.

Ms Jhuti sent emails about the potential breaches to her team leader, who responded by questioning her understanding of the rules and requesting that she retract her allegation. Upset by her team leader’s reaction but fearing that she might lose her job, Ms Jhuti retracted her allegation.

Ms Jhuti was required to attend weekly meetings with her team leader and was given “an ever-changing unattainable list of requirements”. She contacted HR to complain about how she was being treated but nothing was done. After more meetings with her team leader, Ms Jhuti contacted HR again to complain that she was being harassed and bullied as a result of her disclosures.

Ms Jhuti went on sick leave and raised a grievance. Royal Mail responded by offering her a termination package worth one year’s salary, which she rejected. Soon afterwards, another manager, who knew nothing about the background, reviewed Ms Jhuti’s case and terminated her employment for poor performance.

A worker who makes a protected disclosure must not be subject to a detriment on such grounds, and any dismissal resulting from the fact that they have made a protected disclosure will be automatically unfair.

Ms Jhuti therefore brought employment tribunal proceedings. Although the tribunal found that Ms Jhuti had been subject to detriments, it didn’t find that she had been automatically dismissed. Ms Jhuti appealed.

The EAT allowed the appeal, holding that Ms Jhuti had been automatically dismissed for making protected disclosures even though the person who dismissed her was unaware of those disclosures.

Employers should ensure that protected disclosures are taken seriously. This case demonstrates that a decision made by one person in ignorance of the true facts, and who is manipulated by someone responsible for the employee who does know the true facts, can be attributed to the employer. Any individual tasked with reviewing an employee’s case should liaise closely with HR to determine the full background. It would also be wise to have a method of capturing details of any disclosures made so that no liabilities are inadvertently caused.

TUC survey on sexual harassment at work

The TUC has carried out a survey of 1,500 women which found that 52% had been sexually harassed at work. In 90% of cases, the perpetrator was male and in 17% of cases women  said that they had been sexually harassed by their line manager or someone with direct authority over them. 79% of those who experienced sexual harassment did not tell their employer. The reasons for this included a fear of the effect on their working relationships and job prospects, embarrassment and the fear that they would not be believed or taken seriously.

Harassment involves unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. It then becomes discriminatory if it is related to sex, gender reassignment, marriage or civil partnership, being pregnancy or maternity leave, race (including ethnic or national origin, nationality and colour), disability, sexual orientation, religion or belief or age.

Employers should be mindful of potential harassment of a sexual or other nature within the workplace and be proactive in tackling this. An employer is under a legal duty to protect employees from such behaviour and, if it is not dealt with, they could leave themselves exposed to discrimination claims. A starting point would be to implement a strong Anti-harassment and bullying policy which can stand on its own or be part of a wider equality policy