In this month's Employment Law at 11 webinar recording, Scott Alexander, Head of Learning and Development at Legal Island, and Seamus McGranaghan, Partner at O'Reilly Stewart Solicitors, answer listeners questions on topics including:

• Whistleblowing Dismissal or Breach of Contract;
• Redundancy Payment Limits;
• Jurisdictional Issues in Compromise Agreements
• Fair Employment Monitoring

Poll Questions asked in this webinar include:

• Have you ever used a compromise agreement when terminating an employee's contract?
• Have you ever used the LRA's conciliation service to help settle employment claims?
• Are you aware of how early conciliation will change employment tribunal processes from January 2020?

 Questions in this webinar include:

•  Can We Ask for Evidence of a Road Traffic Accident from an Employee?

Transcription

Scott: Good morning, everybody. We've got a number of fairly testing questions today that we're going to be going through, such as whistleblowing.

We've got the sort of cap on various contractual claims and redundancy payments. We've got a really thorny one on cross-border jurisdictional issues. We've another one on FE monitoring. We have another one and that came in there on disciplinary policies and covert recordings. We have another one on the Equality Commission case and pregnancy dismissal case that came in there and what we can do. So whether we get through them all or not, I don't know. If not, we'll hold them over to the next time. But if you have any questions, please do send them in.

As usual, we'll start off with a little poll.

Poll Questions

Have you ever used a compromise agreement when terminating an employee's contract?

Similarly, have you ever used the LRA's conciliation service to help settle employment claims?

Are you aware of how early conciliation will change employment tribunal processes from January 2020?

Let's move on to the first question, Seamus.

Whistleblowing Dismissal or Breach of Contract?

We found out that an employee was trying to build a case against us alleging financial wrongdoing in our business. It was complete breach of trust, so we dismissed her. She's now alleging she was dismissed for whistleblowing. How can this be correct?

Firstly, she hadn't lodged a complaint or informed us of the allegations before we took action. And secondly, we sacked her because she was sneaking behind our backs and accessing confidential information. We simply don't trust her. It has nothing to do with whether her allegations are true or not. She's a spy, and this gets very bad here, she's a spy and Lord knows what she'd be looking at next if we kept her on.

So this is an employee. I'm not sure how long this employee had been working for the employer, but obviously if it is whistleblowing, they don't need the one-year service that you have in Northern Ireland, or if you're in GB and you're listening, the two-year service. So what about this question? She hasn't actually made the allegation. She's building her case. Is it whistleblowing?

Seamus: Yeah. So you know that the whistleblowing legislation itself is complex and Judge Murray tends to deal with all of those cases at the tribunal, and she actually did a seminar back just before the summer for the employment lawyers group in relation to whistleblowing.

Scott: That's right. We actually published that on the weekly reviews, so maybe we'll send that to listeners.

Seamus: Yeah. It was very helpful and very useful and, you know, it's a developing area as well, and it's one that does arise. It's one of those claims also that can be open to use or abuse because of the fact that you don't need them you were saying that you don't need the 12-month qualifying period in order to bring a claim in relation to it. So it's similar to those sorts of claims also that you'll get for in health and safety claims or concerns that have arisen, and a lot of the times when people don't have that 12-month service they can latch onto these sorts of claims instead to try and get their claim in underneath that.

But the first point really is to look at the legislation. There's a lot involved in this question and it's lengthy, so I'm going to try to break it down. But legislation first of all, article 70B of the 1996 Employment Rights Order, and it says essentially that a worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by an employer done on the ground that the employer has made a protected disclosure. And we're saying the word sort of has made a protected disclosure. And then obviously there's all the complications and there's the complexities that are involved in the public interest disclosure order 1990, or the other PID orders as it's known.

And I suspect that the argument here will be around the fact that this is an employee that has not made a disclosure at this point. The question is clear that the employee was building a case. The employer discovered that they were building the case and the allegations are that the trust and confidence then had gone, they don't trust her any longer. And you can see that there's a serious level of mistrust that arises.

Scott: That could be because the employee alleges, "Oh, I was gathering information." But what they were actually doing was stealing information or getting up to badness. So I suppose the employer's saying look, she's saying it's because of that, but there doesn't seem to be in this any indication that the employee had said to anyone beforehand, "I'm trying to build a case here." So the only evidence is that this employee is accessing information to which he or she didn't, sorry, she, didn't actually probably have any authority. But even if they did have authority, there is no evidence at this stage anyway that the employee was actually gathering information. So let's assume that they were.

Seamus: Yeah.

Scott: That might bring them under the whistleblowing legislation.

Seamus: Oh absolutely, and that's a fine line. Look, let's be frank about it, that any employer that would come across an employee that would be gathering evidence in a way to maybe hurt or to damage their reputation, those are the things that the employer will, it will come to mind. Whenever they see, they'll be very sceptical of it. And the whistleblowing legislation, equally there, on the other side of it and to balance things out, is not there to be punitive or to punish an employer or a company. It's there to assist and to bring genuine issues that are of concern or public interest to the attention of the company and give them an opportunity to rectify it. So there's always that balance inside. But it is one that needs to be treated with caution.

Out of the gate straightaway you're saying you don't need to qualifying period here in relation to this. And the interesting aspect is that we're at this point where the employee has not made a disclosure, the employee is gathering evidence, and legitimately may well have serious concerns and legitimately is entitled to do that also. I want to just bring to the attention around this issue of the fact that there'd been no disclosure and there's very recently a story, just in August 2019, and it's a case of Bilsbrough and Berry Marketing and Services Limited. And I want to underline at this point really that this is the case that was brought in the Southampton Employment Tribunal, it's not an EAT decision or a Court of Appeal decision. It's a simple employment tribunal decision. But it is one that's interesting and I see that there's been a fair bit of commenting. Legal-Island have a commentary up on this case as well.

But just to give a bit of background on it, because it is interesting, and the background is slightly complex and I'm just going to cut through that. But really what you're looking at here was the case was brought on the issue of whether there was going to be protection for future disclosures. Disclosures that have not happened, but maybe were at that point, where there is gathering of evidence, where there is certainly . . .

Scott: Well, similar to this case here.

Seamus: Yes. And an interest from the employee that there was going to be something going on. The facts of the case are, and they interest me as well in this one, the employee had sought to bring a disclosure, had attempted to bring a disclosure, but just hadn't done it in the correct way, and the disclosure was defunct on that basis. And the employee became aware of the fact that the employee was attempting to bring the disclosure, and the manager very angrily spoke with the employee at the time and there was a bit of an argy-bargy, as they would say, between the employee and the employer. And the employee actually said at that meeting, "I have told a colleague and I'm going to bring this company down."

So the employer, on fact of the comment that was made took disciplinary action against the employee and suspended the employee. Now to be clear, they suspended the employee on the basis of the comment that was made, "I'm going to bring the company down." And where the issue arose was in the suspension letter the employer said that the reason for the suspension was the comment that had been made, but also linked the suspension to the activity that the employee had been researching ways in order to bring the protected disclosure. And actually what the employee had done was use the computer at work and use Google to find out how to make a disclosure to the Information Commissioner's office, and the employer had become aware of this.

But they did put that in the suspension letter, and ultimately the employee was dismissed and brought a claim for unfair dismissal. And also, on the basis that he's blowing the whistle and that there was a relevant claim there, similar to what our 70B would be. The tribunal looked at it and the tribunal actually made a clarifying that the reason for the dismissal was because of the comment that had been made. That that resulted in the trust and confidence that you had an employee within your organisation that was intending to bring the company down. Interestingly, the tribunal also made, now it's a small award, but they did make an award for injury to feelings on the basis of the whistleblowing aspect. And even though the employee hadn't at that point made a disclosure, they made a finding that that it did have an impact upon the decision in terms of dismissal as well.

So really what you have is a position, again, I'm stressing the fact that this is a key result of first arisen in terms of the actual employment tribunal hasn't been tested in any way, and I'm not aware if there's any appeal that's happening in relation to it. But you can see the direction that the courts are moving in and you can very much see a panel are trying to balance the position of an aggrieved employee that is going to take detrimental steps. And similar to what this question is saying, they're saying that we don't trust them, they're going to do something to harm our company, and balancing that off against the rights under the whistleblowing legislation also. And whether or not this will be supported in further cases, it's not a binding case in relation to our employment tribunal. But you could certainly, if you were acting in a case like this you would you bring them to the attention of the tribunal and asking them to have consideration of it.

Redundancy Payment Limits

Scott: Okay. Thank you very much, Seamus. You're listening to Scott Alexander from Legal-Island, and you've just heard there Seamus McGranaghan from O'Reilly Stewart dealing with a whistleblowing question. Now one of the things that we haven't discussed, but it comes up in whistleblowing anyway is that there is no cap on a whistleblowing award. And of course, you mentioned your injury to feelings.

Our next question also covers caps. Does a statutory redundancy payment contribute to the £25,000 cap on breach of contract claims that you can take to an industry or an employment tribunal?

Seamus: I have ever come across is this on a personal basis in any of my work where this has arisen, and on first blush, I was sort of very clear the position that that was a very straightforward answer which you would be saying that it doesn't. But I did do a bit of research and looked at some case law, and again, there was a 2009 decision in relation to a case. So essentially, to give a bit of background to this, this is the case of, I'm going to call it Uradar and it's against Lancashire Care National Health Trust Foundation. It's an EAT decision, but I'm just going call it Lancashire, I think.

Scott: We'll put a link on the transcript when it goes up. I think it's Ugrada, and I've got it down here as 2019, just for clarification, not 2009.

Seamus: Sorry, 2019.

Scott: But anyway, tell us about the case.

Seamus: Issue with the case, this was the claimant, and I'll just refer to her as the claimant rather than using her name, but the claimant was a NHS employee and went through the agenda for change and essentially her role had been selected as of being at risk of redundancy, gone through the redundancy process, because there was a reorganisation. And within that, the employer found an alternative role for the employee, but the employee looked at the role and considered it but decided that it wasn't a suitable role for her and therefore sought to take the redundancy payment instead.

But ultimately the employer, the respondent in this one, said no, that their view was that the alternative role was suitable for the claimant and she should have taken it, and therefore she wasn't getting a redundancy payment. There was no entitlement to. So that's why the case originated and how it ended up before the tribunal. So it was brought originally in the tribunal, two claims. One for breach of contract and the second for a statutory redundancy payment. And we're all familiar with the fact that claims in the industrial tribunal are limited on a breach of contract claim to £25,000.

Scott: And they have been since '94, when there were introduced

Seamus: Yeah, introduced under the order in 1994, and that figure has stayed the same, and I'll make a bit of commentary about that at the end of this question. But the ET essentially then, the employment tribunal in England, they concluded that the alternative offer of employment to the claimant was in fact unsuitable and that she was entitled to a redundancy payment. So that was the first part to get across.

The second related then to the contractual redundancy payment and the statutory. Now the contractual entitlement had been enhanced under the terms and it was working out to around £44,000, and in addition to that then there was a statutory payment of around £6,000. So in total the figure would've been around £50,000. But what the employment tribunal said was that they were capped by the £25,000 and that all they could award and all that she was entitled to was £25,000, and not entitled to the statutory monies on top of that. Which you would almost always think that that, the statutory entitlement you would always be entitled to no matter what. But they said no, you're limited to £25,000 and that's it.

Scott: So she appealed.

Seamus: So she appealed to the Employment Appeal Tribunal, and they essentially made a finding that no, that was incorrect. That there was going to be two separate claims. That there was a claim under the contractual sum and there was also a claim for the statutory element as well. And my understanding is that she would have got the £25,000 on the contractual amount, and in addition to that she would have received the £6,000 for that.

Scott: Six thousand for the first, statutory.

Seamus: So it wasn't that . . . the cap still stays in terms of its £25,000, but that she would have got the statutory amount as well. For me that seems fairly logical and it's a decision that I completely understand. I suppose the interesting side of it is that we have had that statutory cap for the sum of £25,000 since 1994, coming up nigh for . . .

Scott: Twenty-five years.

Seamus: For 25 years. It hasn't increased. And you'll be aware that annually a lot of the claims where the statutory caps apply are amended every year in terms of inflation, and we know the redundancy cap increases. The cap increases for compensatory awards. But there's never been any amendment to this. And the commentary earned around this case is there needs to be some amendment and change in that. And in actual fact, in this case if the statutory cap had have increased, this wouldn't have been the case that would have ever come to the Employment Appeal Tribunal. Because if it had increased along with inflation the £6,000 would even include any way within the statutory cap. So I think that there seems to be a call certainly across the water that that needs to be looked at. And it would seem reasonable on the basis that we're 25 years down the line.

Jurisdictional Issues in Compromise Agreements

Scott: Okay. Thank you very much, Seamus. If you have any queries about either of those questions so far or any additional questions that you have, please send them in. There's a little question box, everybody, on your screen.

The third one that we're going to deal with here has to do with jurisdictional points, and I'll read it out. It's quite a long question we got from a listener. Where does the jurisdiction fall when drafting a compromise agreement, which is, listen folks, that's why we asked those polls on compromise agreements. Where does the jurisdiction fall when drafting a compromise agreement if the employer is a Northern Irish firm, but the employee lives and works remotely in England? Now it doesn't say here, but it could be something like a salesperson who is based there on behalf of a Northern Ireland firm.

The contract of employment specifies that the jurisdiction is the courts of England and Wales. And we would understand that as being normal because the person lives and works in England and Wales and therefore, they would have the right to be protected under the, not just England and Wales, but the GB legislation applies. So the Employment Rights Act '96, the Single Equality Act of 2010, etc. would govern their rights.

The question here, is it necessary to draft two compromise agreements with both Northern Irish and GB legislation? Is it necessary that the employee seeks legal advice from both jurisdictions? And what are the risks to the employer if a compromise agreement is drafted with GB legislation? Is it still possible for the employee to bring a tribunal claim in Northern Ireland? So that could have been reversed, and we had a discussion before we came on air, where you've dealt with lots of those types of cases.

Seamus: Yeah.

Scott: Some things that involves the three jurisdictions, and you've got people who worked down south, maybe living in Northern Ireland and some things have to go across to Scotland or whatever. It's not that unusual. But in this situation here, you've got two jurisdictions. They're both within the UK. You've got a Northern Ireland firm and you've got employees who are based somewhere in England and Wales, or somewhere in GB. So what's the situation there? Do they need two compromise agreements if the contract's been terminated?

Seamus: Well, this is a complex question, and whether or not we get to the answer on this question is another matter. And I'm not being facetious when I say that, but it is complex, and it's all the more complex as a result of European legislation, recent decisions within our courts, and also with Brexit coming up, and ultimately what happens, whether there is a deal or there's not a deal. So there probably at this point isn't a clear answer in terms of this question.

What I think that we can do though is talk about the issues and give my experience in relation to what my circumstances have been. But certainly, this isn't an occasional thing that happens. It comes up quite a bit. And often whether or not it is that either an NI employer comes to me with employees in England, or whether it's an employee that lives here but works for an English company and spends some time in England and Wales or Scotland, and a little bit of work here in Northern Ireland as well, so it happens.

And the other side of the coin where it does happen is where you maybe have employees that are living in Northern Ireland, working for an English company, but their territory, say they're sales, and employee will be the island of Ireland. And my sort of rule of thumb for all of these cases has always been you look up to the jurisdiction that the employee is working in, and that should determine the jurisdiction in terms of their terms and conditions and their rights under legislation and their rights to bring claims and everything else.

Scott: And that would be reflected in this question because the person works in England and Wales and the terms and conditions that they have say that you're governed by the courts of England and Wales. That's understandable. And if you were to take a claim in the London tribunal say, then they would expect to see references to the Employment Rights Act as opposed to in Northern Ireland where we'd expect to see references to the Employment Rights Order of 1996.

Seamus: Absolutely. I mean a very straightforward position. And if it's a Northern Irish company, but there's employees in England, the terms and conditions should be governed by England and Wales legislation and England and Wales courts. And it makes it very clear that the employee has a right to bring a claim using those terms and conditions and everything else. You will also get these complicating factors that will arise as well, and it's sort of trying to work out where the jurisdiction is and what applies.

Scott: So let's assume this it's a simple one then, Seamus, and you just got an employee, your terminating the contract, you want to do a compromise agreement. They're wholly employed and they even live in England. It just so happens that the . . .

Seamus: The company's . . .

Scott: The company's in Northern Ireland. And that's no different than somebody working for Microsoft in Dublin. They're going to be governed by Irish legislation. They'll have the right to take a claim to an adjudication officer in Ireland. In this case here, this is clearly . . .

Seamus: It's very straightforward.

Scott: . . . a GB legislation. You do a compromise agreement, the Northern Irish firm would have to remind the employee that they need to take advice with somebody who's qualified and can give advice on GB legislation. You do your compromise agreement. Is it a claim in Northern Ireland though?

Seamus: For the employee to bring it to him in Northern Ireland?

Scott: Yeah.

Seamus: There is potentially the right for the employee to do that. Now why the employee would want to do that, if the employee lives in England and is governed by terms and conditions in England, that's the appropriate place to bring it. But under this legislation that we have there's the potential that they could also bring a claim in Northern Ireland. And the risk as always if you exclude claims under a settlement agreement within that jurisdiction, but it leaves your ability to bring a claim somewhere else, is it then possible for the employee to say, "Well, look, now I'll bring a claim for dismissal in the Northern Irish Industrial tribunals"?

Scott: You wouldn't expect a Northern Ireland tribunal to entertain a claim from somebody who's had their claim dealt with in a tribunal in England or Scotland. And you wouldn't expect them to deal with it if there's a compromise agreement which says, "I accept, I've got everything under my contract," and they've never lived in Northern Ireland. So the complicating factors probably arise where you've got somebody who probably lives in Northern Ireland, and it happens a lot, they fly over and they work in England during the week and they come back at the weekend. That's paid into the Northern Ireland branch account and that they've always been lived, they probably were recruited here. They went for an interview in Northern Ireland, but it was for a job because they're trying to get into an English market or a Scottish market, so the person's sent over for the weekend.

Seamus: And the classic examples of that tend to be the salesperson.

Scott: Or the lorry drivers.

Seamus: Yeah. Lives in Northern Ireland, has a contract of employment, and that governs Northern Irish law, but they're spending 70% of their working time in the Republic of Ireland because that's where the larger market is. So there is those complicating factors that arise, and at times certainly my advice has been we need to put both jurisdictions into the compromise agreement and look for either one lawyer that is qualified and has a practice certificate and a policy of insurance in both jurisdictions. Or that they have to get two different sets of advices. And there are lawyers in Northern Ireland that, I mean I know of one that is qualified and that they have a practicing certificate for the Republic of Ireland, for Northern Ireland, for England and Wales, and for Scotland as well. And if they don't, somebody within their firm does and that they can assist.

But it's worthwhile bringing to the attention, there is a very recent case there, 2019 of Merinson, and this is a case that really relates to circumstances that started in Netherlands under Dutch law. And essentially, Mr. Merinson worked for the employer in the Netherlands. There was a bit of a difficult relationship and ultimately, they decided to enter into the terms of a compromise agreement to terminate the employment. And the basics were that the contract was subject to Dutch law, and the contract stated that Dutch laws had exclusive jurisdiction to decide dispute.

So when you look at a compromise agreement or a settlement agreement if it's over in England and Wales, generally at the back of the agreements you'll always see the two points. One, what laws are applicable, and then second of all, what is it jurisdictions. Two different and distinct aspects. But for me, whenever I'm advising, I always look that it's the laws of Northern Ireland and the jurisdiction courts are of Northern Ireland also.

So nothing unusual in that sense. In this case of Merinson what happened was then that Merinson moves and is domiciled in England, and the employer learns after completion of the settlement agreement and after completion of the termination, everything else, that the employee . . . well, the allegation is that the employee has during the term of the employment taken kickbacks from the bank and has been getting money, and they seek to bring proceedings against the employee. Mr. Merinson says sorry, you can't. I have a signed compromise agreement and is completed and is subject to Dutch law.

Scott: That even if you want, now you have to go back to Holland to deal with it.

Seamus: Exactly. And what the respondent, what the employer said was no, we can enforce our agreement in England, in the courts in England. So the case was brought. There is a preliminary point issue in terms of this jurisdiction, and the courts look at it. It is complex, and I'm not saying that it isn't anything other than complex. But ultimately what the findings of the court were, now this was a Court of Appeal decision. It had been at the High Court and that was appealed, and the Court of Appeals stood over the High Court's decision. And what they said was that because these were events that arose after the settlement agreement, that they only found out about that . . .

Scott: So they hadn't been compromised.

Seamus: They hadn't been compromised. Now they were also keeping their powder dry and saying it was a matter for the courts to deal with, and that they weren't really getting into the good and the bad and the merits of the claim. But what they said was that ultimately that the claim could be dealt with by the UK courts because Mr. Merinson was domiciled in the UK. But also that, although it would be heard in the UK court, it was going to be subject to Dutch law.

And it's that aspect of your case being heard and dealt with within the UK here, but using some form of international law. And it really doesn't matter whether it's Dutch law or American law. Whatever it is, the courts are clearly saying that they have experience, the expertise, and this is the way that they can deal with it. Now it's all tied up in various pieces of legislation and agreements. And there's the Brussels agreement in relation to how these things are dealt with. And what will happen, whether there's a deal and no deal is another thing to be said. But certainly, on the basis of our question, I think it's straightforward enough, but I'm just highlighting the fact that employers are going to need to be careful whenever they're coming to draft settlement compromise agreements.

Scott: Yeah. And presumably if you take away the compromise agreement or settlement agreement as it's known in GB, Acas in England deal with employment claims. So if you're going to go through Acas and do a conciliated settlement, you'd have to go through Acas. They wouldn't touch it and they wouldn't put anything into their conciliated settlement agreement to do with Northern Ireland legislations. They wouldn't exclude that. If you were in the LRA, they wouldn't have any exclusion of rights to take claims in GB because there's just no jurisdiction.

So it might be if you do have a hybrid worker if you like, for want of a better word, who works across jurisdictions, that what you want to do is not an LRA or an Acas settlement agreement, what you're better doing is actually a compromise agreement where the person takes legal advice, and maybe even the employer provides that legal advice. Because as you saw in the Merinson case there, if it's held in the law of another jurisdiction, then presumably the claimant in that case would have to get his Dutch lawyers across. The firm would have to get their Dutch lawyers across to run the case in England, and you can sue for the expense of all those things.

Seamus: Yeah. And the idea behind the legislation in place is to favour the . . .

Scott: The weaker party.

Seamus: Yeah, the weaker party in that sense. But certainly look, but my approach has always been where you've the issue of, certainly when I act on behalf of the company, it's belts and braces and I'll put in. And I'll get advice from lawyers in England if needs to be in terms of covering the jurisdictions on it. Equally if I have a client of mine, a claimant, and I do a compromise agreement for them, and it's this idea that they have, they're living and they're working in Northern Ireland, but they spent 70% of their time in ROI, I will say that the employee, I can sign the agreement and I can deal with the Northern Ireland aspect. It's over a treaty and you can potentially still bring a claim in the Republic of Ireland if that's where the basis of the majority of your work was.

Scott: Okay. Thank you very much, Seamus. Again, if you have any questions on that, or if you have cross-border employees, then please get in touch. You've got a little question box there that's coming through. So I haven't had any questions from the question box here, so last week we had loads, which is why we are dealing with all these complex ones at this particular. Okay, to fair employment monitoring, and again, apologies to the person who sent this question because I did intend to do a poll, but I forgot actually. So maybe we'll do it next week.

Fair Employment Monitoring

But anyway, it's nice to get some maybe feedback from those who are listening. So here's the question.

In relation to fair employment monitoring, what is the law in relation to reporting back to the Equality Commission where employees refuse to provide information?

Is there any leeway or requirement for employers to make assumptions, or must they simply report that X number refused to supply information on religious background?

Seamus: Well, the short answer is that there is an opportunity in terms of making assumptions, but there is an actual set piece of guidance in relation to this issue. Legislative wise, what we go back to is we go back to FETO with the Fair Employment and Treatment of Northern Ireland Order of 1998. And part seven of the order sets what duties of employers in respect of their workforces. And that's where you'll find the obligations on the employer to report back to the Equality Commission, with the various monitoring.

So there's three aspects to it, to registration and monitoring for employers. It's the registration of employers with the Equality Commission and the duty to monitor your workforce. And the third is the requirement to review workforce compensation and the employment policies and practices. And this has come around basically because of the historical aspect of Northern Ireland itself.

Scott: And most of the employers will be used to doing those assessments. And then you get your three year returns and so on. And then you publish those in the public sector and such like as well.

Seamus: Yeah. And I want to just maybe jump to that to say that there are serious implications if you don't report back. And I've had experience of that with some clients where they've . . . new businesses that have been set up and they just haven't been aware of what it is that they have to do. But there's problems in relation to, if you don't there's a liable to summary conviction defined on exceeding level 5 on the standard scale where the employer fails to comply or fails after conviction and only gives false information as well. So if they submit full or false reports as well. The only defence that you can provide in relation to not doing this is that if you cover a reasonable excuse.

Just for anyone out there that is concerned about this or saying, well, we haven't done any reporting, the Equality Commission, in my experience, do tend to contact organisations where they haven't received reporting, reporting information through, and they will liaise and they will do their best in terms of encouragement and explain what it is that the employer needs to do. But you will not get away with it for failure to not provide the information.

So just going back to the question, and this is about really where someone fails to provide information to the employer in terms of the monitoring. So what it is that we're looking at in respect of monitoring is so that all employers must submit an annual monitoring return about the religious composition of their workforce, i.e. whether they come from the Protestant background or Catholic background. And you are obliged to retain your monitoring information, and you must retain it for three years or it's a criminal offense. And you're also required to keep this information confidentially, and it's a criminal offense to disclose monitoring outside of the specified circumstances in the order, i.e. to the Equality Commission. Or if you're involved in employment proceedings or court proceedings or something along those lines. So there's a bit of a burden with it.

And how do you go about monitoring? What is it that you do? The standard position is that most people will issue a questionnaire of sorts. Whether that's at recruiting stage or when someone is working for them, whatever it is. But the first principle method they talk about is the direct question. And if anybody wants to really get into this or if they have concerns about it, there is an Equality Commission guidance piece which is a step-by-step guide to monitoring. It was revised in 2011. You can pull it down off the Equality Commission's website. So if you're worried about any aspects of not complying, have a look at it.

Scott: We'll put a link to that in the transcript when it's up next week.

Seamus: Yeah. And it's the obligation to monitor your appointees, your promotees and your leavers as well. And the second aspect of it is where you ask a direct question and the employee refuses to give the answer or refuses to tell you information about it.

Scott: Form or whatever.

Seamus: And some people do. Some people just say I'm not, I don't consider myself to be anything. I'm not from any side of the community. And you're entitled to look at this, there is a residuary method, okay, and it's the sort of fallback method whenever of the direct question that you asked doesn't allow you to make a determination one way or the other. Just to get down into the residuary method, it's this aspect and I suppose it's a classic sort of Northern Irish thing almost, where even though it's not possible for you to make a determination, it permit you as the employer to use other pieces of what they call information provided by an employee.

And it's written pieces of information, so it's things like the surname and their other names, their address, where they might live. Does that tell you what their denominational background might be? The schools that they've attended and their sporting or their other leisure activities, what is it that they do? Is their cultural backgrounds with what they do and can that identify anything? And any course or work that they've undertaken for awards or examinations, qualifications, clubs, societies or organisations that they're a part of. Or if they have particular occupations. And sometimes people can be identified by the schools they teach in, or if they are clergy or administration in a certain type of religion. So you are obliged to use that information in order to make a determination.

Scott: There is a big assumption there and it's based around Northern Ireland-centric stuff.

Seamus: Yes. I'm surprised in a sense.

Scott: Listeners probably haven't noticed that I'm not local. I've been here 30 years, but I'm not local, and I've retained this wonderful accent.

Seamus: Kept it strong, yeah.

Scott: Kept it strong. Kept it strong. So it would be difficult to make these assumptions. And then again, since FETO, it was back in '98, and obviously there's earlier legislation to do with fair employment in Northern Ireland before that. But if you're looking at this particularly, the number of East Europeans, South Europeans and such like that have come to Northern Ireland since then, you'd have a good job trying to figure out how they fit in. Unless you just make an assumption and then of course in equality legislation, making assumptions is very dangerous that you're going to do.

So this question, I suppose, infers here, the way it's written, that some people make up stuff. So take me. You don't know my skill. You don't know my background. You don't know which sports. Obviously everybody knows I support hearts because I'm clever and it's forever, but you don't know most of the stuff, so you make an assumption. With a good name like Scott Alexander, he must have two Christian names. I have no idea, is it two surnames?

Seamus: It's the same actually.

Scott: I've got both. Ambidextrous names. So would it be okay for the employer to put a box as don't know or put a box as he's either Catholic or Protestant and just make an assumption?

Seamus: Well, certainly there is a drill method in terms of doing that, is that that's what the employer has to do, and I suppose what you're doing is you're using your best efforts to make the determination. There is a further step required where you have to make a disclosure to the individual, to the employee. And you certainly have to make that disclosure at least two weeks before the monitoring form is returned. And that very well might prompt the employee to come back to say sorry, that's not correct. This is the correct information that you need. It might not, and the employee might just think, well, so I don't identify as anything. They can put whatever they want down.

Scott: I've never ever come across that in all my days here, maybe you have, where an employer's gone up to an employee and said, "We think you're a Catholic." Or, "We think you're a Protestant."

Seamus: Yeah, I have never come across it.

Scott: If there is anybody listening who's done it, could you please send us, send something and say, "It was me. It was me." Because I'm not sure it's ever been done.

Seamus: Well, the obligation is to put this in writing to the employee, so it's formalised. So it wouldn't be as straightforward as, sorry, as simple as getting up and saying we think your X, Y, or Z. It would be putting in writing and I suppose you'd be presenting it in a letter to say we're completing monitoring information. We're legally required to do this. And we asked a direct question, we didn't get the answer. This is what our considerations are, and you have an opportunity to comment.

So that's how that would work, and I certainly think, I wouldn't recommend someone just walking up to a colleague and saying this is what I think. It should be done certainly within the guise of the reason and the justification for it. Because I could very well imagine someone maybe being upset by that approach and maybe ending up in a tribunal with it. So always the usual thing, keep things in writing.

Can We Ask for Evidence of a Road Traffic Accident from an Employee?

Scott: Keep things in writing. Okay, well, we've got a question, but we're going to have time to go through all the others, but a quick question here on those issues I suppose. Can we ask for evidence of a road traffic accident from an employee? I don't know why you would want to.

Seamus: Well, potentially, that employee has been off on sick leave and has said that they've had a road traffic accident and the employer isn't sure about that. And certainly you could ask for medical evidence if there has been an absence, if they've said they've been off sick being provided, that's justified, and you have a solid reason for asking the issue. I don't see any issue with it if it's part of an investigation. And within the workplace you could ask as well, provided that you're explaining that you're investigating the matter.

But I would imagine that this is something to do with maybe sick leave or where someone has taken time off because they said that they've been in an accident and the employers looking for proof of that. I would be seeking medical evidence rather than maybe asking the direct question of, "Give me evidence of your traffic accident." Use the formal procedures and can you obtain medical evidence for me in relation to that.

Scott: Yeah. And I suppose if somebody were putting in a claim because they'd had an accident at work, then that information would come through obviously anyways.

Seamus: Yeah. But it could be in terms of the employer sometimes have the right of recovery for absence payments and sickness payments whenever there has been car accidents, or right of recovery from the insurance company, and they might want the information on that basis. But again, as long as it's a reasonable request and you're justified in asking for it, you don't have an issue.

Scott: Okay, thank you very much to Seamus. Thank you very much everyone for listening. We're about to leave it there. The transcript should be up in about a week. If you want to listen back, it should be up this afternoon. Just a couple of other points.

First one is that our next webinar, if you want to send in any questions, that will be on the 1st of November. Friday 1 November, 11:00 here, or in Stewart. Seamus, of course, is going to be one of the speakers at the Annual Reviews of Employment Law. There are about 10 places left I'm told at the first of our annual reviews, the one at the Titanic. So if you want to get to Titanic building, or Titanic Belfast as they call it now, then you're going to have to move quickly and book online or contact the Legal-Island office. So thank you very much, everybody, for listening and thank you for your questions that came in there, and I hope to see you soon. Take care.