Employment Tribunal Victory

The Union has won an important Employment Tribunal case for a member sacked by Lloyds Bank.

Although the case involved Lloyds, all members should spend the time reading what happened because the case demonstrates very clearly how many companies fail to deal fairly with alleged disciplinary issues; how many of those involved in disciplinary cases lack the independence to make fair decisions and how faceless HR officials often guide hearing managers to reach the decisions HR and more senior line managers want made.

Members might well reflect on what can happen to people not represented by an independent union prepared to take on employers?

Finally, members who use social media could usefully ask whether they are putting themselves at risk?

The Case

Around 18 months ago, a member sent out a tweet from her Twitter account sharing her personal views on a political issue that featured heavily in the press at the time.

Her account made no reference to her employment or her employer, yet a third party hunted her down and through LinkedIn identified her employer as Lloyds Bank. In what was clearly an orchestrated attack from a group of people with a political axe to grind, the tweet was re-tweeted to Lloyds and 5 people made comments suggesting that Lloyds should ‘distance themselves’ from the member i.e. sack her.

How It Was Handled

The member was immediately called to an investigatory meeting, without allowing her time to be represented and following a shallow investigation and disciplinary process led by HR, Lloyds dismissed the member with immediate effect.

The Issues

It was clear to us that the decision was grossly unfair and that we needed to fight our member’s case at the Employment Tribunal. Article 10 of the Human Rights Act gives everyone the right to freedom of expression on political issues and matters of social concern, in any medium, including social media.

Whether or not some managers in Lloyds agreed with the member’s views, scant regard was paid to her right to freedom of expression and a decision was made to deliver the ultimate sanction to a long-standing and dedicated employee, in response to a malicious, vindictive attack from a small number of politically-motivated individuals.

The Judgement

Over a two-day hearing, the Judge listened to a cross-examination of the Investigation Manager, Disciplinary Hearing Manager and Appeal Hearing Manager and also listened to the member explaining her version of events.

The Judge described the disciplinary hearing as “defective” and said “it would have been perverse for any reasonable employer to have imposed any sanction”. He added that “no reasonable employer of the size and with the resources of the Respondent (Lloyds) could have carried out an investigation so unsatisfactorily”.

This was a massive and well-earned rebuke for Lloyds and those anonymous people who directed this case, putting the Investigating Manager and the Appeal Hearing Manager in the firing line.

The Role Of Lloyds HR

It has long been our concern that many of the HR departments with whom we deal have an improper influence over the handling of disciplinary and grievance cases, a view that was echoed by the Judge when referring to one of the managers handling this case:

“She took the lead from HR as to the seriousness of what had taken place, the relevant policy to apply, the words and phrases she used and, in effect, was little more than a puppet”

HR professionals know very well that there is an implied contractual right to a fair disciplinary process and that although HR can answer hearing managers’ questions on procedure, the ultimate decision has to be that of the hearing manager, free from influence by HR. It’s noted widely in legal opinion that HR professionals often go well beyond the limits of appropriate involvement and the Judge clearly saw that in this case.

This is not a phenomenon limited to Lloyds and we have had some very revealing feedback from members that is influencing how we now deal with disciplinary cases and grievances everywhere. It’s inevitable that more cases will proceed to the Employment Tribunal, where employers can’t dictate what will happen.

Make Sure We’re By Your Side In Investigatory Meetings

The Judge was particularly scathing of the lengths the Lloyds went to prevent the member being supported at her Fact Find and its policy on handling investigations. He said:

“I thought it unfortunate… that the Respondent as a matter of policy does not inform its employees that an investigatory meeting is due to take place, or give the employee time in which to seek an appropriate companion … I can see no justification for the subterfuge used in this case.”

If you’re invited to an investigatory meeting, contact us immediately so that we can be by your side to ensure that the meeting is conducted appropriately.

The Perils of Social Media

Whilst we wholeheartedly support the principle of freedom of expression, it’s important to remember that social media in all forms, including email, are very public, even if your privacy settings are at their most secure. People who want to ‘offside’ you, including people you may have thought were your friends, may misuse the access you’ve given them.

Importantly, it’s very difficult to retract or destroy content once it’s been published, so if you were in any doubt about whether you should say something, our advice would be to not say it at all!

We’ll have more to say about social media in a subsequent newsletter.

Insurance For Your Job

Not all employers behave as Lloyds did in this case and indeed most don’t. However, in our experience, a tendency in many organisations to delegate important decisions like dismissal to people who are clearly ill-equipped to make them does mean that arbitrary and unfair dismissals are more common.

This means that action in the Employment Tribunal is likely to be an unfairly dismissed employee’s best chance of justice.

However, taking a case to the Employment Tribunal is an expensive and complicated process: in most cases the Tribunal Fees alone are £1,200 and retaining senior barristers will cost upwards of £10,000 even in fairly straightforward cases. It’s no exaggeration to say that even using less experienced junior barristers, taking a case to the Tribunal would cost between £6,000 and £8,000 in total. Without the experience and commitment of Affinity to guide them and our financial backing, most members would have to give in.

As this case has shown, they don’t need to.