Christine and Seamus discuss your employment law queries live in our webinar series, “Employment Law at 11”. This month it's an NI Case Law Special. Seamus and Christine will unpack the lessons to be learnt from 3 recent NI cases:

1. Watson v Police Service of Northern Ireland [2024] - failure to disclose information during the recruitment process.
2. Bond v Chief Constable of the PSNI [2023] - sex discrimination claim.
3. Rainey v Mid & East Antrim Borough Council [2023] - unfair dismissal and protected disclosures.

Recording:

Transcript:

Christine:  Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. My name is Christine Quinn. I'm a Knowledge Partner here at Legal-Island. I'm joined as usual by Seamus McGranaghan, Director and employment law expert over at O'Reilly Stewart Solicitors. So, you're very welcome, everyone.

So, what are we talking about today? We've got a bit of a case law special for you. We all love a bit of case law. So, we've picked out three recent Northern Irish cases that we think are interesting and you can learn some lessons from.

Firstly, we've got Watson v The PSNI. This is about a failure to disclose information during the recruitment process and kind of the impact of that.

Second case, sorry, PSNI, we've got another one against you guys. It's Bond v The Chief Constable. It's a sex discrimination claim. It was in the media when the judgement was released. It was all around kind of the COVID period. So, it's a really interesting one.

Third case we'll give the PSNI a bit of a break and return to Rainey v Mid & East Antrim Borough Council, which is an unfair dismissal and protected disclosures case. Again, it circles around the pandemic. So, you're starting to see the big decisions coming in on that now in the tribunals.

So, thanks as always to our sponsors, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

Now, as usual, we're going to kick off with some polls just to make sure you're awake on this very grey Friday morning. So, they're based around the cases we're going to be discussing.

The first one really relates to the Bond v The Chief Constable case. So, have you trained your staff in unconscious bias? And if you can answer yes, no, or what's unconscious bias for us, please, that would be great. We'll see what you're thinking.

Let's see those results. So, we've got a big 56% are saying yes, they've trained their staff in unconscious bias. We do have a small group, though, Seamus, that don't know what unconscious bias is, which is quite interesting.

Seamus:  Yeah, I'm surprised that the training is up as high as over 50%. It's 56% in relation to specific training on unconscious bias. It may be that it does form part of the general harassment, bullying, and discrimination-type training that would go on in an organisation, but it is quite specific and, and to an extent something that is not widely known about. There's certainly case law in relation to it, but it's not something that would come up in a lot of the case law that you hear about.

Certainly through the Equality Commission here and the news articles, it tends to be those kind of straightforward issues around the matters that we would sort of think of discrimination, like sex discrimination and age. But obviously the unconscious bias can filter into any of those aspects of discrimination.

So, it's great to see it's as high up there as 56%. And for the 10%, hopefully then we can give them a bit of knowledge about that this morning.

Christine:  Yeah, I think the Bond case is a really interesting one on unconscious bias because I do think the perpetrators, if we can call it that, will be even as surprised in that case that people thought they were being sexist. So, I think it's a really useful one.

Let's have a look at the next question then, Maria, if you'll get that up for us. So, this is really around the Rainey case that we'll be discussing in a little bit. Do you have a formal policy in place for contact with staff while they're working remotely? So, if you could answer yes, it's in the handbook, or no, each manager is empowered to do their own thing, or no, contact with remote staff is ad hoc.

So, let's see how you're dealing with your remote workers. There we have 52% saying that they empower their managers to do their own thing. I am fairly surprised at that because we're kind of four years on from the pandemic when remote working became the norm, I suppose. I would expect slightly more people to have kind of a process or a policy for that. What do you think, Seamus?

Seamus:  Yeah, I'm glad to see that we've nearly hit 40% that at least have it in the handbook, because we do constantly bang on about policies and procedures whenever we're on these webinars.

But the aspect of each manager empowered to do their own thing, I mean, I think maybe at managerial level there is an aspect of professional conduct and that maybe if you're nipping out for an hour to do an appointment while you're working from home one of the days, that's okay.

But it's always the concern that I have, and it always gives me a funny feeling in my tummy whenever someone says, "Oh, it's okay, I'm working from home tomorrow", and you're thinking, "Right, okay".

Specifically if I'm trying to maybe get a call arranged with a client or consult with a client and I'm doing it remotely, it always does panic me because ultimately the Rainey case is around the fact that the member of staff was required to be available on Teams during his normal working hours and he was uncontactable.

It's those aspects when you ring a member of staff and you can clearly hear they're in the car, or they're at the hairdresser's, or they are at the park with their kids. That may be fine and may be okay for some organisations, particularly if you're up at a management level and you do sort of have that autonomy, because maybe later in the evening you're going to be able to do your work and maybe that works okay.

But sort of where the working from home aspect has moved to, I think, is that employers are expecting that if you're working from home, you are actually working from home and you're doing it in your normal hours.

Ultimately, it comes down to what the policy and procedure is. But I think that that's where we're maybe seeing elements of conflict arising. I mean, there's no doubt there has been a sea change, again, of employers vastly trying to get employees back to the office on a full-time basis. And there is a bit of friction happening around that, and that aspect of you don't want the small number to damage the goodwill that is there for the vast majority of employees as well.

So, when we get to Rainey, it'd be good to maybe go through and discuss the specifics of what the tribunal had to say.

Christine:  Yeah. Well, I think when we get to the Rainey case, if anyone's on the fence about remote work, and I don't want to tip them over to the side of no more remote working, but Rainey is a bit of a cautionary tale.

Thanks, everyone, for getting involved in those polls.

So, remember you can drop in any questions for Seamus as we go along, and I'll pull them out as and when.

You'll find all the decisions in the hand-out section of your screen. And we're also going to drop in links to the case reviews provided by Jason Elliott BL. They're going to be added into the chat, so you can have a look at those. They're short and sweet and they give you the main points of the case just to remind you.

So, Seamus, we've got Watson v The PSNI. What can you tell us about the background to that case?

Seamus:  So, this is an interesting case. The case itself is a Court of Appeal case. So, the written decision that we're talking about during this morning's webinar is based on the Court of Appeal's written decision.

But the background to this case relates to . . . It was initially . . . I suppose, first of all, Mr Watson was a police officer in the PSNI. And in and around 2001, the police set up a disciplinary panel essentially to look to discipline him. And he was unhappy about the status and the jurisdiction of the disciplinary panel, and he wrote to them and asked them to stay their disciplinary proceedings.

They issued a written outcome to say that they had decided not to stay it and that they would proceed. And Mr Watson then took a judicial review in the High Court. Now, that was heard by Lord Justice Colton, who granted the leave for judicial review, which is the first step for judicial review, and then dealt with the substantive case during the hearing.

And the judicial review was really around Mr Watson's application for the court to review the decision of the disciplinary panel, not stay the proceedings. That was rejected by the High Court in the judicial review case, and that's how then they end up at a Court of Appeal case.

And there are lots of intricacies and interesting points around the whole background of the case. But maybe just to move that on, the basics are that Mr Watson had applied for the police in 2016.

And everybody would be familiar enough with when you're making an application to the police, it's a fairly rigorous vetting process that you have to go through. As part of that, he had to complete a questionnaire that was part of the security vetting procedures.

And part of that questionnaire was that he had to make disclosures about either full- or part-time employment that he'd had in the past. The previous five years, I think, was the timeframe.

Now, he completed the questionnaire, submitted it, and then he started his training in 2017. And he was attested on . . . Attestation essentially was whenever he commenced his period as essentially a qualified police officer with the police in 2017.

Everything is fine, and then there are issues that arise in and around 2021. And these issues specifically relate to this questionnaire that he completed back in 2016.

So, there's our timeframe, 2016 to 2021, and he's working away as a police constable during that period. I'm not clear about how these disclosures came to light. I couldn't see reference to that in the Court of Appeal decision. They may be in the judicial review decision, but ultimately disclosures were made that he had failed to declare two roles that he had previously had.

One of the roles . . . and I'll just get the specific dates of these. One of the roles was a role in October 2011 to 2014, where he had worked at Matalan in a retail capacity, and he'd received a warning for gross misconduct. He wasn't dismissed, but he'd received a warning for gross misconduct during his time at Matalan, which he didn't disclose on this questionnaire.

And then there was a second post where he worked in this menswear retailer called Statement. I think I can possibly remember Statement as a men's fashion shop. And that was between January '15 and October 2016 he worked there. And there were allegations on 10 occasions during that employment that he had made unlawful deductions to himself. So, essentially he paid himself, and the total of amount was sitting I think around £1,600 or £1,700.

Now, it doesn't appear that there was ever a formal record or a formal disciplinary or that he was dismissed from that employment. And again, I'm not sure how those came to light.

But the main position was he didn't make the disclosures at the time, and that's how the disciplinary proceedings came about, because the panel were seeking to challenge him in relation to his failure to make those disclosures.

His position was, "Look, my job at Matalan was a Saturday job that I worked at between the ages of 16 to 18". I can't figure out how ages 16 to 18 work whenever he was there from 2011 to 2014, but . . .

And he also said that the role at Statement Fashions was a zero-hours contract. I'm assuming that his argument was, "I didn't make the disclosures because I only had to declare full- and part-time work, and I didn't see it as being such".

But the Court of Appeal in its decision makes it very clear that they should have been disclosed. And we're coming from an era here where there have been various criticisms in the media, and there's no doubt that there have been concerns and confidence issues with policing not only here, but across the water.

We think of the Sarah Everard case and things like that. There's definitely been a public confidence issue that has arisen. So, that seemed to be certainly a factor that was on the mind of the disciplinary panel, and also then laterally at the Court of Appeal.

So, whenever the police became aware of this, they decided to bring these disciplinary proceedings. The nub of that was that he had made a false declaration. That was the issue.

They said that he should have made the declarations at the time, but they went a step further than that, and they also said, "Following your attestation, you should have come back to rectify those matters that you were aware of, and you didn't do it".

And they specifically said that he hadn't sought to correct false allegations, and second of all, then, that that breached the ethics of the PSNI code. Those were the two issues.

So, he is taken to task on that. He applies for this stay, the panel is saying no, he goes to the judicial review, that's refused, and then he goes to the Court of Appeal.

Now, interestingly, it all became very academic because he decided to resign from the role, I think, in December 2023. And the case was heard in January 2024. So, it's a fairly fresh and new case that we're dealing with.

But the Court of Appeal had made a decision that even though he was resigning from his employment, and that this was an academic point, they said there was a public interest point here because they were aware of at least one other case whereby the same issues had arisen.

It's the issue in and around that whenever you attest, whenever you qualify, whenever you take that next step, are you obliged then to still rectify previous matters? And the Court of Appeal said that the central issue was the extent to which, if at all, a police constable can be disciplined for misconduct when the relevant misbehaviour took place before his or her attestation as a constable.

So, you can see the public interest point that the court were wary of, and ultimately they rejected the appeal. I'm sure that maybe Mr Watson had moved on and maybe was hopeful that the case wouldn't need to proceed in the Court of Appeal. But they made that decision.

And they were fairly scathing in relation to him in saying that these should have been disclosures that he should have made at the time. What they said was that a significant issue was the importance of maintaining confidence in the police service, and they said which obviously have an important role of upholding the law, and that that was where the public confidence aspect was.

They also went on to say, and I'm just reading here from the decision, "There was a need to exclude or remove from the police individuals who are unfit to hold the office of constable". And they added that, "Behaviour demonstrating that an individual is unfit to be a police officer should be also uncovered and acted upon".

So, the obiter and the dictum here coming from the court are that these are issues that they take very serious.

As regards us, the case is specifically for the police. But I think that there are a number of potential other roles and jobs that people have particularly around public service that you could see these issues arising and disclosures having to be made. And it might put certain individuals off for making applications for roles, for certain jobs.

Even if you're thinking of people that apply for roles on boards where they are paid or whether they're voluntary, you can certainly see that the push here is that you're looking at something that happened in 2016, coming to light in 2021, and a court decision in 2024 about it. You have an eight-year span there.

And in normal circumstances where we deal with disciplinary issues, we would be saying, "Oh, the ship has sailed. The matter has passed. We can't do anything about it now". But you could see here how serious the matter was.

And I don't think probably Mr Watson anticipated a Court of Appeal decision whenever he was making those initial applications for stay under the court.

So, an interesting one and one to bear mind, and I think we need to keep that in balance if we come across cases in the future, and particularly anybody who's dealing with recruitment issues and HR.

Christine:  Yeah. I mean, it is for very specific roles, but I think for everybody, you can have a look at your recruitment process and ask yourself, "Are you asking the right questions? Are you asking for the right disclosures to be made? And can you back up your decision to put those disclosures on your application?"

There's kind of the Ban the Box campaign about trying to get more ex-offenders into work. I don't envy HR at all. There's a very fine line you have to tread between making sure that the most appropriate people get the roles that have that authority and require that public respect and stuff, but while not keeping other people out of work entirely.

So, I think it is quite a specific case for the police, but I think there are lessons that we can take from it. And I'd say, Seamus, that I have two takeaways from the case, just to round up.

Firstly, it would be that Court of Appeal made it clear there is a duty to disclose particular things, such as previous employment. And if it's not done, there's then a continuing duty on the applicant, on the employee, to rectify that issue. So, it just doesn't fall away. He thought he was home free because it was eight years ago, but he still had that duty.

Secondly, for HR professionals, I would suggest having a clear policy on what disclosures you need to be made at the recruitment stage and why. So, they have to be focussed and effective really. You have to be able to stand by them and say, "We need this information because . . ." So, those would be my two takeaways in that.

So, onwards to the other PSNI case, Bond. Can you tell us a wee bit about what happened in the Bond case?

Seamus:  Well, Bond was a well-publicised case that was reported in various news outlets and it relates to a PSNI officer, Emma Bond. Now, the background for the claimant on this was that she was a former PSNI Chief Superintendent. So, she held a significant role within the police. She was up there in the hierarchy of senior management within the police. She was also the first female commander in Derry City and Strabane District. And she brought claims for sex discrimination and for protected disclosure, PID claims in the tribunal in March 2021.

So, really interesting case. She was long established. She was well known because she would've been at the forefront, and would've been on TV, for instance, and in media because of her role and the high profile nature of her role.

And the issues for this really set around the time of COVID in April 2020. She was notified and informed that there were other officers within her district that were under her management who had simply just not turned into work when COVID had happened. They were receiving pay, and in addition to that, some of them were also getting paid double time for work that they weren't actually completing.

And needless to say, at a time whenever COVID had happened, I think probably there was an issue in her mind about the public perception, again, of police, and particularly at a time whenever everybody was frightened about what was happening and very unsure about what was going to happen.

She logged the complaint with upper management. She informed upper management of the situation that was happening. And essentially that was the element where she had made a public interest disclosure.

She also then approached her officers within her team, and there's reference in the decision that there was a rollicking that happened. But I think essentially she was robust with them, told them that this wasn't appropriate, and reminded them of their duties and of their functions.

And that didn't go down terribly well with a number of the officers who then proceeded to make complaints about Emma Bond and the manner in which she had dealt with it. In her mind, she'd dealt with it robustly and appropriately. And these reports then were filed with police.

On foot of those reports, she was then issued with various regulatory breaches, essentially disciplinary procedures, as far as I can see, in relation to the way that she managed and handled the position around the officers within her management.

Subsequent to that, then, she also applied for a new role within the police. So, this was a role further up the hierarchy within the police as well. And there's no doubt that she was a well-thought-of person in her role both publicly and within the police as well.

These disciplinary proceedings came around, and ultimately then she took a claim for her PID claims and also for sex discrimination.

Now, she didn't bring this in any kind of grievance format or anything formally, but she had raised issues about travel attached to her role, that it was demanding. Usual complaints that we all have in relation to stress at work and those sort of good and bad days that you'll have in every role.

But interestingly, in relation to those allegations . . . and I just want to read this here. So, there was a complaint put in that was investigated, and the complaint came back to say that following an independent review, it outlined that the disciplinary charges or the regulatory charges that were brought against her were . . . "The inescapable conclusion drawn was that the assessment of the claimant's conduct as gross misconduct lay outside the bounds of reasonableness". It's probably the very polite way of putting it.

Essentially, this idea that she had been very robust. In her eyes, she was doing her role. It was appropriate.

And I think that during the hearing of the case itself, she put her hands up and admitted to certain language that she'd used. And I'll not repeat it here, you can read it in the decision, but nothing in my mind that was other than somebody being very direct, very straightforward, and very blunt about a position that they were clearly annoyed about and could see the risk of public confidence being damaged and things like that if this was to get out.

It's an unfortunate case in that she ended up leaving the police. And obviously, somebody that I think, reading from the judgement, was very capable and somebody that was an asset. She ended up leaving and I think has taken up a role in Scotland.

But interestingly as well, she'd gone for this temporary Assistant Chief Constable role in September 2020. She didn't get that role, but what happened was then that she was moved to the training academy.

I mean, I'm probably speaking out of turn when I say this, but when I read it, Christine . . . I don't know what your thoughts on it were, but it seemed to me as if there was a bit of a "put out to pasture" type role with the academy.

But she was saying, "No, I don't want to do that role. I very much want to see out my role that I'm doing. I feel that there's more to do, achievements to make", and she was annoyed about the move, and she felt that the move was a result of these complaints that had been made against her.

Specifically, she had contacted her direct line manager, Simon Byrne, at the time, and made specific complaints. And she said at the time that she felt that if she was a man, that she would've been treated in the same way. So, she wasn't happy at all about the role.

And in her case, as part of her case and the sort of detrimental aspect, the detrimental treatment that she had suffered, she made a direct comparison to a male colleague who got the role that she was looking to get. I think it was that or had gone back to cover her role. I can't remember quite what it was. But he lived just round the corner from her.

They had said that part of the reason for putting her to the training academy and moving her out of her role was because she'd mentioned about the fatigue and about being tired and the travel. But yet the male comparator lived essentially, I think, in the same area, round the corner, and had been given the same role.

Again, I think that was probably the tribunal looking at that. You could see sometimes you can bring tentative enough arguments in the tribunal, and if you just get it right and the tone is right, the tribunal can seize that and see that as something greater than maybe what you first anticipated.

So, the tribunal heard this case. This case was heard in January, April, and October 2023. So, again, a fairly fresh case, and cases that are coming out, again, as you mentioned at the start, through COVID.

Interestingly, the tribunal did make a finding for her. They did find that she was treated less favourably. Detrimental treatment as a result of both the PID and sex discrimination claims.

What I found interesting about this one was Simon Byrne gave direct evidence at the tribunal. So, he went as a witness, and he was cross-examined. And this was a note in his journal that he'd made. He said that he'd received an emotional text about issues on district from Mrs Bond, and that he had counselled her regarding a need for resilience.

Christine:  Yeah. That bit, I have to say, Seamus, as a woman that's the bit that my blood pressure went up, because I think the number of times as a woman you're explained that you're being emotional compared to . . . I doubt whether many times in your career, Seamus, you've been told to calm down or that you're being too emotional.

It actually made me think about the "Barbie" movie, of all things. But there's a quote in it where Ken is talking about the patriarchy, and a guy says to him, "We're actually doing the patriarchy very well. We're just better at hiding it". That is what kind of sprung to my mind in that.

I was actually quite encouraged by this decision, because unconscious bias is such a slippery thing to get hold of and to get your head round. We had 10% of our audience say they didn't get what it is, and it's just so subtle. Nobody is saying to her or about her, "Let's get rid of Ms Bond. She's a woman. She's no good because she's a woman". It's just very, very subtle undermining things that were happening really, wasn't it? And I was so pleased that the tribunal really got to grips with that.

Seamus:  Yeah. I think Judge Gamble gave the decision on this one. It is a very lengthy decision. I think it's over 90 pages. And you can see how the tribunal were focussed. I suspect that the tribunal got a sniff in the air of some form of discrimination, particularly in and around those PID claims. And that has led them to uncovering other issues throughout and probably during the hearing as well.

And it's difficult as a lawyer trying to take the needle and the thread and pull that through and to bring those arguments along specifically around unbiased . . . I lost my train of thought there. Sorry. The position around something that isn't tangible, that's not written down. The evidence of it is what . . . you can't show tangible evidence. It has to be that you are almost having to convince a panel about that.

So, I agree with you in relation to the unconscious bias point. That's what I was trying to get to.

But the other side, on the sex discrimination element, they said that she'd been treated less favourably than a hypothetical comparator in relation to the complaints made against her, and that she'd give unchallenged evidence. So, there was no challenge to her evidence about how other senior officers were unable to fathom why an investigation had been commenced based upon the circumstances.

So, it was interesting that she enjoyed, and it appeared to me that she enjoyed the support of other colleagues who were saying, "I don't understand why you are being disciplined". And I think that's really interesting about the unconscious bias point, that presumably male colleagues were saying, "But why? You had a robust conversation".

Christine:  Yeah, we've had the same . . . Yeah.

Seamus:  Yeah. You had a robust conversation with them. And if I, as a male, went in and did that, would the complaints have been made? Were the complaints just made because it was a woman that was getting to do it?

And I think when we were talking earlier on, you were saying about they were probably very surprised that they were being discriminative or that there was this element of it. It wasn't even maybe within their mind-set at the time to be directly discriminative. And I suppose that's around the unbiased . . . that you're not conscious of it.

But that's where I think the training part . . . When we go back to our poll at 56%, if it is up there and it is as high as this, I think that's really brilliant. But I just wonder having maybe gone through the case and explained all of that . . . Because it is one of those issues that you may not be aware of what you've said or what you've done and the impact that that has had until you think about it later down the line.

Christine:  Yeah. Brilliant. Thanks for that, Seamus. Just mindful of the time. I'll do a wee bit of a wrap-up on that. So, my real takeaways from the Bond case is, first and foremost, they were stereotyping. Men being described as assertive and women being described as aggressive is sometimes, not all the time, but sometimes one and the same characteristic really just being interpreted differently. So, be aware of that.

Secondly, very much linked to the first point, using words like emotional to describe how a female employee is responding to something is not helpful and it will raise their blood pressure, believe me.

Thirdly, if someone blows the whistle or flags issues to you, and then complaints are subsequently made against them, you really do need to take a breath, take a step back before initiating disciplinary or misconduct action against them. And really look, "Is this the right course of action?" You don't want to be penalising a whistleblower or penalising someone because they've reacted in a gender-stereotyped way in your mind.

So, that is a really interesting case. Thank you so much for that, Seamus.

We've got Rainey v Mid Antrim Council. What's the background to that one then?

Seamus:  So, this is another interesting case. This was a case that was heard in the tribunal itself in April and July 2023. I imagine that maybe they'd come back in July to do submissions or something along those lines.

But the basics of it are that the claimant was employed then in the council as a statutory finance manager. Commenced his employment on 1 July 2020, and he was dismissed on 11 January 2021. So, within that six-month probationary period is what we're talking about here.

Now, the claimant's role was very much related to preparing the annual accounts for the council, and his first manager raised issues that they were having difficulties contacting him. During a meeting, they arranged to discuss the claimant. Now, he wasn't invited to that meeting, but they tried on three occasions during that meeting to contact him during working hours and were unable to contact him.

He specifically had a clause in the contract that said that he could work from home. And this was the stage, again, where everybody was working from home as a result of COVID and the pandemic, but he was required to be available during his working hours via Teams.

I suppose it's that classic one that you see on all the social medias of the noise of the Teams theme coming through, ringing and just nobody picking up or nobody answering it, or maybe somebody getting out of bed at one minute to 9:00 to get on it. But it appeared that there wasn't any contact that they were able to make with him whatsoever.

So, suspicions were there. There was a change in management, and I think that the change in management just happened because somebody had left. A second manager came in, and that was in September 2020. And that manager also raised issues of work not being done, work that was incomplete, issues around the quality of the work as well, and also the fact that they couldn't seem to get in contact or get a hold of the employee.

I think that the claimant then had said that there was a . . . I think that the position was that the manager expressed the concerns. The claimant said, "You're being hostile". And what happened then was a third manager came in to manage the claimant. So, I suspect that there were some issues that had arisen between the two of them, and may be part of the frustration of not being able to get in contact.

Third manager came in and, again, picked up immediately on these issues that were arising, couldn't get in contact and issues around the quality of the work and things like that. And they arranged a probationary review meeting, which was in line with what the contract of employment had said.

Lo and behold, again, contact issues in and around the probationary review meeting. And the claimant then essentially seemed to get quite exercised about the probationary review meeting, made allegations, and I'll just specifically go to this, that said that the way that it was being dealt with was inappropriate, that he was being dealt with inappropriately, and that he needed to be given space.

He alleged then when he said that, that those were protected disclosures that he had made.

Ultimately, he asked that the meeting be dealt with essentially by a written correspondence rather than a face-to-face meeting. So, there was an entire reluctance for any kind of remote meeting or anything like that to take place as we were all doing at the time over Teams or Zoom or whatever the case was.

So, the claimant initially refused the call, and then eventually did have the call. It was about 45 minutes later that the call actually managed to take place. And they discussed issues of handover, and they discussed issues in and around the performance concerns that had arisen.

And during the call, the line manager heard another voice, and asked and enquired who that person was. It was the claimant's wife. The manager had said, "Look, I have concerns around GDPR here", and terminated the meeting.

So, they did in fact reschedule and have a further probationary meeting. They brought in HR at the time into that meeting. I think things had sort of escalated at that point.

Two issues were put to the claimant around his unavailability in relation to the meetings, and the hostile correspondence that he essentially had sent. The meeting did take place, but the decision was to terminate the employment on the basis that the probationary period had been failed. And he was dismissed then on 11 January 2021.

He brought a claim for automatic unfair dismissal. He obviously didn't have his year's service to bring a claim for straightforward unfair dismissal. So, he brought the claim for automatic unfair dismissal based on a protected disclosure.

So, to come back to the two disclosures, one was, "You're dealing with me inappropriately", and that, "I need space". So, you could probably have given this fairly short shift in relation to, "Do you meet the threshold in relation to a qualifying disclosure?"

I think Judge [Knight 00:39:26] made the decision on this one. It is a robust decision that covers all of the angles. It's a good decision to read to get a good understanding of how PID claims work.

For me, PID claims are very complex. They're very difficult. I do see a lot of claims of public interest disclosure coming across my desk. And they just don't meet the threshold in relation to what a public interest disclosure is. And that was really what this case was about.

I think there wasn't assistance or help given to the claimant on the basis that there were clearly challenges in relation to getting him on a call and getting the work done. And I suspect that the tribunal had taken that on board as well whenever they were coming to look at the case.

So, general position of the tribunal was that there wasn't a qualifying disclosure and that brought about the end of the case itself.

But it's just interesting, I think, that we're seeing a lot of these COVID cases arising. There's an element, I suppose, that if you were dealing with those cases at the time, you might have a lot more sympathy for employees and the circumstances that they were in.

But I think as we look back on it and the lessons that we learnt, and how essentially employers were in a difficult position and were trying to do their best. And it looks like in this case that that wasn't sort of reciprocated by the employee.

So, again, I think talk around what is your policy and procedure, say, in relation to working from home. And that's why I mentioned during the part of the poll there sometimes I do feel that a working-from-home day can be construed as "I get to do whatever I want. I can go and meet a friend for coffee at 11:00 because I'm working from home", where the specifics here were, and the challenge for the claimant was, "You're working from home, but you need to be available during your working hours for the Teams calls".

So, I think that that is the risk. And I do see the distinguishment that you would have maybe for someone that is in management and that sort of professional courtesy that they might have, where you know that they're going to get the work done later in the day if they have to have an appointment.

But it is something that I do get queries from HR advisers that will say to me, "I've had somebody say to me, 'Look, I'm working from home tomorrow, but is it okay if I go to the dentist?' And I'll say, 'Yeah, you can, but you need to make up the hours for it just as you would on a normal workday'."

Or alternatively, they might say, "Look, it might be easier for you to work from home that day because if that's going to take three hours and it's going to take you an hour to get into work and an hour to get back and all that sort of stuff, it might just be better to work from home that day".

But I do think that there needs to be those lines around what the employer's position is, what's acceptable to the employer, and what's not. And I certainly think we've moved far enough away from the pandemic at this point where employers are taking a much more robust approach.

Christine:  Yeah. I mean, lawyers come out in a cold sweat when you don't have a policy on something. So, just do me and Seamus a favour and get yourself a policy that sets your parameters, because you're in much stronger position going into tribunal if there is somebody that has taken the mickey, for lack of a better phrase. And in this case, the council were able to hold their own, really.

So, I'm just going to wrap up this case with my takeaways then, Seamus.

Firstly, I would say protected disclosures must not be generalised and they have to be in line with the legislation and the public interest. Mr Rainey's disclosures really only related to him. And so don't panic if someone says they have made a public interest disclosure. Put them to the test. Apply the law and see whether it comes out in the wash really.

Secondly, this case demonstrates the importance of the probationary period and how it can be utilised in cases where the employee is underperforming.

And thirdly, it also underlines the importance of having rules and parameters in place for home working. Get that policy drafted, is what we would say.

Brilliant. Thanks very much for that, Seamus. Three really interesting cases there. It's always good to do case law and see what others are up to and where they've gone wrong.

So, you'll see a slide there. If the Bond case we've just discussed has given you pause for thought, you'll be pleased to know that Legal-Island has launched a new eLearning course all about workplace harassment and sexual harassment. More information can be found in the post-webinar email.

Also, another slide should be appearing any moment. Yes, we've got our little slide all about holiday pay. We've been really talking about the PSNI a lot today. I wish the picture and screen had a little police hat hanging on that deck chair because I think they're really the ones that have shaken up holiday pay recently.

So, you can join us at our new event, Unlocking Holiday Pay, and we promise to have no academic discussions on the rights and wrongs of the law. We're just going to give some good practical advice on what you should be doing following the Agnew decision and the changes to the Working Time Regs.

So, I'll be chairing it, and it would be great to see you there. Come with your questions. We will answer them, we promise.

In the meantime, if you'd like to catch up with Employment Law at 11, you can find us wherever you get your podcasts. We're on Apple, Spotify, and Amazon.

And if you really are missing me and Seamus, you can connect to us on LinkedIn. Send us a message and let us know what you'd like us to talk about in upcoming webinars. It would be great to hear from you.

But otherwise, thank you very much, Seamus. Thanks for all your help, Maria, in the background. Have a lovely Friday, everyone. See you later.

Sponsored by:

Christine:        Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. My name is Christine Quinn. I'm a Knowledge Partner here at Legal-Island. I'm joined as usual by Seamus McGranaghan, Director and employment law expert over at O'Reilly Stewart Solicitors. So, you're very welcome, everyone.

            So, what are we talking about today? We've got a bit of a case law special for you. We all love a bit of case law. So, we've picked out three recent Northern Irish cases that we think are interesting and you can learn some lessons from.

            Firstly, we've got Watson v The PSNI. This is about a failure to disclose information during the recruitment process and kind of the impact of that.

            Second case, sorry, PSNI, we've got another one against you guys. It's Bond v The Chief Constable. It's a sex discrimination claim. It was in the media when the judgement was released. It was all around kind of the COVID period. So, it's a really interesting one.

            Third case we'll give the PSNI a bit of a break and return to Rainey v Mid & East Antrim Borough Council, which is an unfair dismissal and protected disclosures case. Again, it circles around the pandemic. So, you're starting to see the big decisions coming in on that now in the tribunals.

            So, thanks as always to our sponsors, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

            Now, as usual, we're going to kick off with some polls just to make sure you're awake on this very grey Friday morning. So, they're based around the cases we're going to be discussing.

            The first one really relates to the Bond v The Chief Constable case. So, have you trained your staff in unconscious bias? And if you can answer yes, no, or what's unconscious bias for us, please, that would be great. We'll see what you're thinking.

            Let's see those results. So, we've got a big 56% are saying yes, they've trained their staff in unconscious bias. We do have a small group, though, Seamus, that don't know what unconscious bias is, which is quite interesting.

Seamus:          Yeah, I'm surprised that the training is up as high as over 50%. It's 56% in relation to specific training on unconscious bias. It may be that it does form part of the general harassment, bullying, and discrimination-type training that would go on in an organisation, but it is quite specific and, and to an extent something that is not widely known about. There's certainly case law in relation to it, but it's not something that would come up in a lot of the case law that you hear about.

            Certainly through the Equality Commission here and the news articles, it tends to be those kind of straightforward issues around the matters that we would sort of think of discrimination, like sex discrimination and age. But obviously the unconscious bias can filter into any of those aspects of discrimination.

            So, it's great to see it's as high up there as 56%. And for the 10%, hopefully then we can give them a bit of knowledge about that this morning.

Christine:        Yeah, I think the Bond case is a really interesting one on unconscious bias because I do think the perpetrators, if we can call it that, will be even as surprised in that case that people thought they were being sexist. So, I think it's a really useful one.

            Let's have a look at the next question then, Maria, if you'll get that up for us. So, this is really around the Rainey case that we'll be discussing in a little bit. Do you have a formal policy in place for contact with staff while they're working remotely? So, if you could answer yes, it's in the handbook, or no, each manager is empowered to do their own thing, or no, contact with remote staff is ad hoc.

            So, let's see how you're dealing with your remote workers. There we have 52% saying that they empower their managers to do their own thing. I am fairly surprised at that because we're kind of four years on from the pandemic when remote working became the norm, I suppose. I would expect slightly more people to have kind of a process or a policy for that. What do you think, Seamus?

Seamus:          Yeah, I'm glad to see that we've nearly hit 40% that at least have it in the handbook, because we do constantly bang on about policies and procedures whenever we're on these webinars.

            But the aspect of each manager empowered to do their own thing, I mean, I think maybe at managerial level there is an aspect of professional conduct and that maybe if you're nipping out for an hour to do an appointment while you're working from home one of the days, that's okay.

            But it's always the concern that I have, and it always gives me a funny feeling in my tummy whenever someone says, "Oh, it's okay, I'm working from home tomorrow", and you're thinking, "Right, okay".

            Specifically if I'm trying to maybe get a call arranged with a client or consult with a client and I'm doing it remotely, it always does panic me because ultimately the Rainey case is around the fact that the member of staff was required to be available on Teams during his normal working hours and he was uncontactable.

            It's those aspects when you ring a member of staff and you can clearly hear they're in the car, or they're at the hairdresser's, or they are at the park with their kids. That may be fine and may be okay for some organisations, particularly if you're up at a management level and you do sort of have that autonomy, because maybe later in the evening you're going to be able to do your work and maybe that works okay.

            But sort of where the working from home aspect has moved to, I think, is that employers are expecting that if you're working from home, you are actually working from home and you're doing it in your normal hours.

            Ultimately, it comes down to what the policy and procedure is. But I think that that's where we're maybe seeing elements of conflict arising. I mean, there's no doubt there has been a sea change, again, of employers vastly trying to get employees back to the office on a full-time basis. And there is a bit of friction happening around that, and that aspect of you don't want the small number to damage the goodwill that is there for the vast majority of employees as well.

            So, when we get to Rainey, it'd be good to maybe go through and discuss the specifics of what the tribunal had to say.

Christine:        Yeah. Well, I think when we get to the Rainey case, if anyone's on the fence about remote work, and I don't want to tip them over to the side of no more remote working, but Rainey is a bit of a cautionary tale.

            Thanks, everyone, for getting involved in those polls.

            So, remember you can drop in any questions for Seamus as we go along, and I'll pull them out as and when.

            You'll find all the decisions in the hand-out section of your screen. And we're also going to drop in links to the case reviews provided by Jason Elliott BL. They're going to be added into the chat, so you can have a look at those. They're short and sweet and they give you the main points of the case just to remind you.

            So, Seamus, we've got Watson v The PSNI. What can you tell us about the background to that case?

Seamus:          So, this is an interesting case. The case itself is a Court of Appeal case. So, the written decision that we're talking about during this morning's webinar is based on the Court of Appeal's written decision.

            But the background to this case relates to . . . It was initially . . . I suppose, first of all, Mr Watson was a police officer in the PSNI. And in and around 2001, the police set up a disciplinary panel essentially to look to discipline him. And he was unhappy about the status and the jurisdiction of the disciplinary panel, and he wrote to them and asked them to stay their disciplinary proceedings.

            They issued a written outcome to say that they had decided not to stay it and that they would proceed. And Mr Watson then took a judicial review in the High Court. Now, that was heard by Lord Justice Colton, who granted the leave for judicial review, which is the first step for judicial review, and then dealt with the substantive case during the hearing.

            And the judicial review was really around Mr Watson's application for the court to review the decision of the disciplinary panel, not stay the proceedings. That was rejected by the High Court in the judicial review case, and that's how then they end up at a Court of Appeal case.

            And there are lots of intricacies and interesting points around the whole background of the case. But maybe just to move that on, the basics are that Mr Watson had applied for the police in 2016.

            And everybody would be familiar enough with when you're making an application to the police, it's a fairly rigorous vetting process that you have to go through. As part of that, he had to complete a questionnaire that was part of the security vetting procedures.

            And part of that questionnaire was that he had to make disclosures about either full- or part-time employment that he'd had in the past. The previous five years, I think, was the timeframe.

            Now, he completed the questionnaire, submitted it, and then he started his training in 2017. And he was attested on . . . Attestation essentially was whenever he commenced his period as essentially a qualified police officer with the police in 2017.

            Everything is fine, and then there are issues that arise in and around 2021. And these issues specifically relate to this questionnaire that he completed back in 2016.

            So, there's our timeframe, 2016 to 2021, and he's working away as a police constable during that period. I'm not clear about how these disclosures came to light. I couldn't see reference to that in the Court of Appeal decision. They may be in the judicial review decision, but ultimately disclosures were made that he had failed to declare two roles that he had previously had.

            One of the roles . . . and I'll just get the specific dates of these. One of the roles was a role in October 2011 to 2014, where he had worked at Matalan in a retail capacity, and he'd received a warning for gross misconduct. He wasn't dismissed, but he'd received a warning for gross misconduct during his time at Matalan, which he didn't disclose on this questionnaire.

            And then there was a second post where he worked in this menswear retailer called Statement. I think I can possibly remember Statement as a men's fashion shop. And that was between January '15 and October 2016 he worked there. And there were allegations on 10 occasions during that employment that he had made unlawful deductions to himself. So, essentially he paid himself, and the total of amount was sitting I think around £1,600 or £1,700.

            Now, it doesn't appear that there was ever a formal record or a formal disciplinary or that he was dismissed from that employment. And again, I'm not sure how those came to light.

            But the main position was he didn't make the disclosures at the time, and that's how the disciplinary proceedings came about, because the panel were seeking to challenge him in relation to his failure to make those disclosures.

            His position was, "Look, my job at Matalan was a Saturday job that I worked at between the ages of 16 to 18". I can't figure out how ages 16 to 18 work whenever he was there from 2011 to 2014, but . . .

            And he also said that the role at Statement Fashions was a zero-hours contract. I'm assuming that his argument was, "I didn't make the disclosures because I only had to declare full- and part-time work, and I didn't see it as being such".

            But the Court of Appeal in its decision makes it very clear that they should have been disclosed. And we're coming from an era here where there have been various criticisms in the media, and there's no doubt that there have been concerns and confidence issues with policing not only here, but across the water.

            We think of the Sarah Everard case and things like that. There's definitely been a public confidence issue that has arisen. So, that seemed to be certainly a factor that was on the mind of the disciplinary panel, and also then laterally at the Court of Appeal.

            So, whenever the police became aware of this, they decided to bring these disciplinary proceedings. The nub of that was that he had made a false declaration. That was the issue.

            They said that he should have made the declarations at the time, but they went a step further than that, and they also said, "Following your attestation, you should have come back to rectify those matters that you were aware of, and you didn't do it".

            And they specifically said that he hadn't sought to correct false allegations, and second of all, then, that that breached the ethics of the PSNI code. Those were the two issues.

            So, he is taken to task on that. He applies for this stay, the panel is saying no, he goes to the judicial review, that's refused, and then he goes to the Court of Appeal.

            Now, interestingly, it all became very academic because he decided to resign from the role, I think, in December 2023. And the case was heard in January 2024. So, it's a fairly fresh and new case that we're dealing with.

            But the Court of Appeal had made a decision that even though he was resigning from his employment, and that this was an academic point, they said there was a public interest point here because they were aware of at least one other case whereby the same issues had arisen.

            It's the issue in and around that whenever you attest, whenever you qualify, whenever you take that next step, are you obliged then to still rectify previous matters? And the Court of Appeal said that the central issue was the extent to which, if at all, a police constable can be disciplined for misconduct when the relevant misbehaviour took place before his or her attestation as a constable.

            So, you can see the public interest point that the court were wary of, and ultimately they rejected the appeal. I'm sure that maybe Mr Watson had moved on and maybe was hopeful that the case wouldn't need to proceed in the Court of Appeal. But they made that decision.

            And they were fairly scathing in relation to him in saying that these should have been disclosures that he should have made at the time. What they said was that a significant issue was the importance of maintaining confidence in the police service, and they said which obviously have an important role of upholding the law, and that that was where the public confidence aspect was.

            They also went on to say, and I'm just reading here from the decision, "There was a need to exclude or remove from the police individuals who are unfit to hold the office of constable". And they added that, "Behaviour demonstrating that an individual is unfit to be a police officer should be also uncovered and acted upon".

            So, the obiter and the dictum here coming from the court are that these are issues that they take very serious.

            As regards us, the case is specifically for the police. But I think that there are a number of potential other roles and jobs that people have particularly around public service that you could see these issues arising and disclosures having to be made. And it might put certain individuals off for making applications for roles, for certain jobs.

            Even if you're thinking of people that apply for roles on boards where they are paid or whether they're voluntary, you can certainly see that the push here is that you're looking at something that happened in 2016, coming to light in 2021, and a court decision in 2024 about it. You have an eight-year span there.

            And in normal circumstances where we deal with disciplinary issues, we would be saying, "Oh, the ship has sailed. The matter has passed. We can't do anything about it now". But you could see here how serious the matter was.

            And I don't think probably Mr Watson anticipated a Court of Appeal decision whenever he was making those initial applications for stay under the court.

            So, an interesting one and one to bear mind, and I think we need to keep that in balance if we come across cases in the future, and particularly anybody who's dealing with recruitment issues and HR.

Christine:        Yeah. I mean, it is for very specific roles, but I think for everybody, you can have a look at your recruitment process and ask yourself, "Are you asking the right questions? Are you asking for the right disclosures to be made? And can you back up your decision to put those disclosures on your application?"

            There's kind of the Ban the Box campaign about trying to get more ex-offenders into work. I don't envy HR at all. There's a very fine line you have to tread between making sure that the most appropriate people get the roles that have that authority and require that public respect and stuff, but while not keeping other people out of work entirely.

            So, I think it is quite a specific case for the police, but I think there are lessons that we can take from it. And I'd say, Seamus, that I have two takeaways from the case, just to round up.

            Firstly, it would be that Court of Appeal made it clear there is a duty to disclose particular things, such as previous employment. And if it's not done, there's then a continuing duty on the applicant, on the employee, to rectify that issue. So, it just doesn't fall away. He thought he was home free because it was eight years ago, but he still had that duty.

            Secondly, for HR professionals, I would suggest having a clear policy on what disclosures you need to be made at the recruitment stage and why. So, they have to be focussed and effective really. You have to be able to stand by them and say, "We need this information because . . ." So, those would be my two takeaways in that.

            So, onwards to the other PSNI case, Bond. Can you tell us a wee bit about what happened in the Bond case?

Seamus:          Well, Bond was a well-publicised case that was reported in various news outlets and it relates to a PSNI officer, Emma Bond. Now, the background for the claimant on this was that she was a former PSNI Chief Superintendent. So, she held a significant role within the police. She was up there in the hierarchy of senior management within the police. She was also the first female commander in Derry City and Strabane District. And she brought claims for sex discrimination and for protected disclosure, PID claims in the tribunal in March 2021.

            So, really interesting case. She was long established. She was well known because she would've been at the forefront, and would've been on TV, for instance, and in media because of her role and the high profile nature of her role.

            And the issues for this really set around the time of COVID in April 2020. She was notified and informed that there were other officers within her district that were under her management who had simply just not turned into work when COVID had happened. They were receiving pay, and in addition to that, some of them were also getting paid double time for work that they weren't actually completing.

            And needless to say, at a time whenever COVID had happened, I think probably there was an issue in her mind about the public perception, again, of police, and particularly at a time whenever everybody was frightened about what was happening and very unsure about what was going to happen.

            She logged the complaint with upper management. She informed upper management of the situation that was happening. And essentially that was the element where she had made a public interest disclosure.

            She also then approached her officers within her team, and there's reference in the decision that there was a rollicking that happened. But I think essentially she was robust with them, told them that this wasn't appropriate, and reminded them of their duties and of their functions.

            And that didn't go down terribly well with a number of the officers who then proceeded to make complaints about Emma Bond and the manner in which she had dealt with it. In her mind, she'd dealt with it robustly and appropriately. And these reports then were filed with police.

            On foot of those reports, she was then issued with various regulatory breaches, essentially disciplinary procedures, as far as I can see, in relation to the way that she managed and handled the position around the officers within her management.

            Subsequent to that, then, she also applied for a new role within the police. So, this was a role further up the hierarchy within the police as well. And there's no doubt that she was a well-thought-of person in her role both publicly and within the police as well.

            These disciplinary proceedings came around, and ultimately then she took a claim for her PID claims and also for sex discrimination.

            Now, she didn't bring this in any kind of grievance format or anything formally, but she had raised issues about travel attached to her role, that it was demanding. Usual complaints that we all have in relation to stress at work and those sort of good and bad days that you'll have in every role.

            But interestingly, in relation to those allegations . . . and I just want to read this here. So, there was a complaint put in that was investigated, and the complaint came back to say that following an independent review, it outlined that the disciplinary charges or the regulatory charges that were brought against her were . . . "The inescapable conclusion drawn was that the assessment of the claimant's conduct as gross misconduct lay outside the bounds of reasonableness". It's probably the very polite way of putting it.

            Essentially, this idea that she had been very robust. In her eyes, she was doing her role. It was appropriate.

            And I think that during the hearing of the case itself, she put her hands up and admitted to certain language that she'd used. And I'll not repeat it here, you can read it in the decision, but nothing in my mind that was other than somebody being very direct, very straightforward, and very blunt about a position that they were clearly annoyed about and could see the risk of public confidence being damaged and things like that if this was to get out.

            It's an unfortunate case in that she ended up leaving the police. And obviously, somebody that I think, reading from the judgement, was very capable and somebody that was an asset. She ended up leaving and I think has taken up a role in Scotland.

            But interestingly as well, she'd gone for this temporary Assistant Chief Constable role in September 2020. She didn't get that role, but what happened was then that she was moved to the training academy.

            I mean, I'm probably speaking out of turn when I say this, but when I read it, Christine . . . I don't know what your thoughts on it were, but it seemed to me as if there was a bit of a "put out to pasture" type role with the academy.

            But she was saying, "No, I don't want to do that role. I very much want to see out my role that I'm doing. I feel that there's more to do, achievements to make", and she was annoyed about the move, and she felt that the move was a result of these complaints that had been made against her.

            Specifically, she had contacted her direct line manager, Simon Byrne, at the time, and made specific complaints. And she said at the time that she felt that if she was a man, that she would've been treated in the same way. So, she wasn't happy at all about the role.

            And in her case, as part of her case and the sort of detrimental aspect, the detrimental treatment that she had suffered, she made a direct comparison to a male colleague who got the role that she was looking to get. I think it was that or had gone back to cover her role. I can't remember quite what it was. But he lived just round the corner from her.

            They had said that part of the reason for putting her to the training academy and moving her out of her role was because she'd mentioned about the fatigue and about being tired and the travel. But yet the male comparator lived essentially, I think, in the same area, round the corner, and had been given the same role.

            Again, I think that was probably the tribunal looking at that. You could see sometimes you can bring tentative enough arguments in the tribunal, and if you just get it right and the tone is right, the tribunal can seize that and see that as something greater than maybe what you first anticipated.

            So, the tribunal heard this case. This case was heard in January, April, and October 2023. So, again, a fairly fresh case, and cases that are coming out, again, as you mentioned at the start, through COVID.

            Interestingly, the tribunal did make a finding for her. They did find that she was treated less favourably. Detrimental treatment as a result of both the PID and sex discrimination claims.

            What I found interesting about this one was Simon Byrne gave direct evidence at the tribunal. So, he went as a witness, and he was cross-examined. And this was a note in his journal that he'd made. He said that he'd received an emotional text about issues on district from Mrs Bond, and that he had counselled her regarding a need for resilience.

Christine:        Yeah. That bit, I have to say, Seamus, as a woman that's the bit that my blood pressure went up, because I think the number of times as a woman you're explained that you're being emotional compared to . . . I doubt whether many times in your career, Seamus, you've been told to calm down or that you're being too emotional.

            It actually made me think about the "Barbie" movie, of all things. But there's a quote in it where Ken is talking about the patriarchy, and a guy says to him, "We're actually doing the patriarchy very well. We're just better at hiding it". That is what kind of sprung to my mind in that.

            I was actually quite encouraged by this decision, because unconscious bias is such a slippery thing to get hold of and to get your head round. We had 10% of our audience say they didn't get what it is, and it's just so subtle. Nobody is saying to her or about her, "Let's get rid of Ms Bond. She's a woman. She's no good because she's a woman". It's just very, very subtle undermining things that were happening really, wasn't it? And I was so pleased that the tribunal really got to grips with that.

Seamus:          Yeah. I think Judge Gamble gave the decision on this one. It is a very lengthy decision. I think it's over 90 pages. And you can see how the tribunal were focussed. I suspect that the tribunal got a sniff in the air of some form of discrimination, particularly in and around those PID claims. And that has led them to uncovering other issues throughout and probably during the hearing as well.

            And it's difficult as a lawyer trying to take the needle and the thread and pull that through and to bring those arguments along specifically around unbiased . . . I lost my train of thought there. Sorry. The position around something that isn't tangible, that's not written down. The evidence of it is what . . . you can't show tangible evidence. It has to be that you are almost having to convince a panel about that.

            So, I agree with you in relation to the unconscious bias point. That's what I was trying to get to.

            But the other side, on the sex discrimination element, they said that she'd been treated less favourably than a hypothetical comparator in relation to the complaints made against her, and that she'd give unchallenged evidence. So, there was no challenge to her evidence about how other senior officers were unable to fathom why an investigation had been commenced based upon the circumstances.

            So, it was interesting that she enjoyed, and it appeared to me that she enjoyed the support of other colleagues who were saying, "I don't understand why you are being disciplined". And I think that's really interesting about the unconscious bias point, that presumably male colleagues were saying, "But why? You had a robust conversation".

Christine:        Yeah, we've had the same . . . Yeah.

Seamus:          Yeah. You had a robust conversation with them. And if I, as a male, went in and did that, would the complaints have been made? Were the complaints just made because it was a woman that was getting to do it?

            And I think when we were talking earlier on, you were saying about they were probably very surprised that they were being discriminative or that there was this element of it. It wasn't even maybe within their mind-set at the time to be directly discriminative. And I suppose that's around the unbiased . . . that you're not conscious of it.

            But that's where I think the training part . . . When we go back to our poll at 56%, if it is up there and it is as high as this, I think that's really brilliant. But I just wonder having maybe gone through the case and explained all of that . . . Because it is one of those issues that you may not be aware of what you've said or what you've done and the impact that that has had until you think about it later down the line.

Christine:        Yeah. Brilliant. Thanks for that, Seamus. Just mindful of the time. I'll do a wee bit of a wrap-up on that. So, my real takeaways from the Bond case is, first and foremost, they were stereotyping. Men being described as assertive and women being described as aggressive is sometimes, not all the time, but sometimes one and the same characteristic really just being interpreted differently. So, be aware of that.

            Secondly, very much linked to the first point, using words like emotional to describe how a female employee is responding to something is not helpful and it will raise their blood pressure, believe me.

            Thirdly, if someone blows the whistle or flags issues to you, and then complaints are subsequently made against them, you really do need to take a breath, take a step back before initiating disciplinary or misconduct action against them. And really look, "Is this the right course of action?" You don't want to be penalising a whistleblower or penalising someone because they've reacted in a gender-stereotyped way in your mind.

            So, that is a really interesting case. Thank you so much for that, Seamus.

            We've got Rainey v Mid Antrim Council. What's the background to that one then?

Seamus:          So, this is another interesting case. This was a case that was heard in the tribunal itself in April and July 2023. I imagine that maybe they'd come back in July to do submissions or something along those lines.

            But the basics of it are that the claimant was employed then in the council as a statutory finance manager. Commenced his employment on 1 July 2020, and he was dismissed on 11 January 2021. So, within that six-month probationary period is what we're talking about here.

            Now, the claimant's role was very much related to preparing the annual accounts for the council, and his first manager raised issues that they were having difficulties contacting him. During a meeting, they arranged to discuss the claimant. Now, he wasn't invited to that meeting, but they tried on three occasions during that meeting to contact him during working hours and were unable to contact him.

            He specifically had a clause in the contract that said that he could work from home. And this was the stage, again, where everybody was working from home as a result of COVID and the pandemic, but he was required to be available during his working hours via Teams.

            I suppose it's that classic one that you see on all the social medias of the noise of the Teams theme coming through, ringing and just nobody picking up or nobody answering it, or maybe somebody getting out of bed at one minute to 9:00 to get on it. But it appeared that there wasn't any contact that they were able to make with him whatsoever.

            So, suspicions were there. There was a change in management, and I think that the change in management just happened because somebody had left. A second manager came in, and that was in September 2020. And that manager also raised issues of work not being done, work that was incomplete, issues around the quality of the work as well, and also the fact that they couldn't seem to get in contact or get a hold of the employee.

            I think that the claimant then had said that there was a . . . I think that the position was that the manager expressed the concerns. The claimant said, "You're being hostile". And what happened then was a third manager came in to manage the claimant. So, I suspect that there were some issues that had arisen between the two of them, and may be part of the frustration of not being able to get in contact.

            Third manager came in and, again, picked up immediately on these issues that were arising, couldn't get in contact and issues around the quality of the work and things like that. And they arranged a probationary review meeting, which was in line with what the contract of employment had said.

            Lo and behold, again, contact issues in and around the probationary review meeting. And the claimant then essentially seemed to get quite exercised about the probationary review meeting, made allegations, and I'll just specifically go to this, that said that the way that it was being dealt with was inappropriate, that he was being dealt with inappropriately, and that he needed to be given space.

            He alleged then when he said that, that those were protected disclosures that he had made.

            Ultimately, he asked that the meeting be dealt with essentially by a written correspondence rather than a face-to-face meeting. So, there was an entire reluctance for any kind of remote meeting or anything like that to take place as we were all doing at the time over Teams or Zoom or whatever the case was.

            So, the claimant initially refused the call, and then eventually did have the call. It was about 45 minutes later that the call actually managed to take place. And they discussed issues of handover, and they discussed issues in and around the performance concerns that had arisen.

            And during the call, the line manager heard another voice, and asked and enquired who that person was. It was the claimant's wife. The manager had said, "Look, I have concerns around GDPR here", and terminated the meeting.

            So, they did in fact reschedule and have a further probationary meeting. They brought in HR at the time into that meeting. I think things had sort of escalated at that point.

            Two issues were put to the claimant around his unavailability in relation to the meetings, and the hostile correspondence that he essentially had sent. The meeting did take place, but the decision was to terminate the employment on the basis that the probationary period had been failed. And he was dismissed then on 11 January 2021.

            He brought a claim for automatic unfair dismissal. He obviously didn't have his year's service to bring a claim for straightforward unfair dismissal. So, he brought the claim for automatic unfair dismissal based on a protected disclosure.

            So, to come back to the two disclosures, one was, "You're dealing with me inappropriately", and that, "I need space". So, you could probably have given this fairly short shift in relation to, "Do you meet the threshold in relation to a qualifying disclosure?"

            I think Judge [Knight 00:39:26] made the decision on this one. It is a robust decision that covers all of the angles. It's a good decision to read to get a good understanding of how PID claims work.

            For me, PID claims are very complex. They're very difficult. I do see a lot of claims of public interest disclosure coming across my desk. And they just don't meet the threshold in relation to what a public interest disclosure is. And that was really what this case was about.

            I think there wasn't assistance or help given to the claimant on the basis that there were clearly challenges in relation to getting him on a call and getting the work done. And I suspect that the tribunal had taken that on board as well whenever they were coming to look at the case.

            So, general position of the tribunal was that there wasn't a qualifying disclosure and that brought about the end of the case itself.

            But it's just interesting, I think, that we're seeing a lot of these COVID cases arising. There's an element, I suppose, that if you were dealing with those cases at the time, you might have a lot more sympathy for employees and the circumstances that they were in.

            But I think as we look back on it and the lessons that we learnt, and how essentially employers were in a difficult position and were trying to do their best. And it looks like in this case that that wasn't sort of reciprocated by the employee.

            So, again, I think talk around what is your policy and procedure, say, in relation to working from home. And that's why I mentioned during the part of the poll there sometimes I do feel that a working-from-home day can be construed as "I get to do whatever I want. I can go and meet a friend for coffee at 11:00 because I'm working from home", where the specifics here were, and the challenge for the claimant was, "You're working from home, but you need to be available during your working hours for the Teams calls".

            So, I think that that is the risk. And I do see the distinguishment that you would have maybe for someone that is in management and that sort of professional courtesy that they might have, where you know that they're going to get the work done later in the day if they have to have an appointment.

            But it is something that I do get queries from HR advisers that will say to me, "I've had somebody say to me, 'Look, I'm working from home tomorrow, but is it okay if I go to the dentist?' And I'll say, 'Yeah, you can, but you need to make up the hours for it just as you would on a normal workday'."

            Or alternatively, they might say, "Look, it might be easier for you to work from home that day because if that's going to take three hours and it's going to take you an hour to get into work and an hour to get back and all that sort of stuff, it might just be better to work from home that day".

            But I do think that there needs to be those lines around what the employer's position is, what's acceptable to the employer, and what's not. And I certainly think we've moved far enough away from the pandemic at this point where employers are taking a much more robust approach.

Christine:        Yeah. I mean, lawyers come out in a cold sweat when you don't have a policy on something. So, just do me and Seamus a favour and get yourself a policy that sets your parameters, because you're in much stronger position going into tribunal if there is somebody that has taken the mickey, for lack of a better phrase. And in this case, the council were able to hold their own, really.

            So, I'm just going to wrap up this case with my takeaways then, Seamus.

            Firstly, I would say protected disclosures must not be generalised and they have to be in line with the legislation and the public interest. Mr Rainey's disclosures really only related to him. And so don't panic if someone says they have made a public interest disclosure. Put them to the test. Apply the law and see whether it comes out in the wash really.

            Secondly, this case demonstrates the importance of the probationary period and how it can be utilised in cases where the employee is underperforming.

            And thirdly, it also underlines the importance of having rules and parameters in place for home working. Get that policy drafted, is what we would say.

            Brilliant. Thanks very much for that, Seamus. Three really interesting cases there. It's always good to do case law and see what others are up to and where they've gone wrong.

            So, you'll see a slide there. If the Bond case we've just discussed has given you pause for thought, you'll be pleased to know that Legal-Island has launched a new eLearning course all about workplace harassment and sexual harassment. More information can be found in the post-webinar email.

            Also, another slide should be appearing any moment. Yes, we've got our little slide all about holiday pay. We've been really talking about the PSNI a lot today. I wish the picture and screen had a little police hat hanging on that deck chair because I think they're really the ones that have shaken up holiday pay recently.

            So, you can join us at our new event, Unlocking Holiday Pay, and we promise to have no academic discussions on the rights and wrongs of the law. We're just going to give some good practical advice on what you should be doing following the Agnew decision and the changes to the Working Time Regs.

            So, I'll be chairing it, and it would be great to see you there. Come with your questions. We will answer them, we promise.

            In the meantime, if you'd like to catch up with Employment Law at 11, you can find us wherever you get your podcasts. We're on Apple, Spotify, and Amazon.

            And if you really are missing me and Seamus, you can connect to us on LinkedIn. Send us a message and let us know what you'd like us to talk about in upcoming webinars. It would be great to hear from you.

            But otherwise, thank you very much, Seamus. Thanks for all your help, Maria, in the background. Have a lovely Friday, everyone. See you later.