For this month’s post I thought I would do an actual case law update. This is not because I am short on material but because it coincides with two new cases that are both ‘legally interesting’ and will likely be of interest if you are running a marketing agency or similar where employees deal directly with your important clients. I apologise in advance if you clicked on this post in the hope of reading juicy tales of political espionage. Unfortunately, no former Cabinet ministers (or their ex-wives) were sent to prison in either of these cases… The first case involves something of a legal myth. Individuals or organisations who are the subject of covert film or other recorded footage without their knowledge, often argue that the recordings of their activities are inadmissible in legal proceedings. And in my experience, that is the general view that most people hold.
In Vaughan v London Borough of Lewisham and others, the issue for the Employment Appeal Tribunal (the ‘EAT’) was whether the Employment Tribunal was right to refuse V’s application for admission of 39 hours’ worth of covert dictaphone recordings of meetings as evidence in support of her claims. The EAT decided that the Tribunal was wrong to refuse permission and whilst the practice of making recordings secretly was ‘very distasteful’, the evidence was not inadmissible simply because the manner in which it was obtained was discreditable. The relevance of the evidence is key to it’s admissibility and the Tribunal will need to see/hear it before deciding on whether it is relevant or not. If my years of practice are anything to go by, covert recordings are rarely the smoking guns that parties believe them to be but the Tribunal will get to consider them nonetheless. The second case which caught my attention involved the dismissal of an employee based on the complaint of a third party (client) in Bancroft v Interserve.
The brief facts are that Bancroft, employed by Interserve, worked as a chef at a bail hostel under a catering services contract between Interserve and the Home Office. Bancroft did not have a good relationship with the hostel’s manager and the HO insisted that Bancroft no longer work at the hostel. He was subsequently dismissed by Interserve. The reason for dismissal was third party pressure to dismiss. (Ever had a client that didn't like their Account Manager??) It was apparent that Interserve did little investigation into the issues that arose between the chef and the hostel manager. You may already know that it is lawful to dismiss an employee if there is third party pressure (from a client for example) to do so. However, the employer must still act reasonably in dismissing for that reason. It is not enough for them to simply say ‘they made us do it’. Reasonableness will usually involve consideration of alternative employment within the business. In this case, the EAT ruled that the Tribunal failed to consider whether the employer had done everything it could do to mitigate against the injustice caused by the HO’s insistence that Bancroft no longer work at the hostel. The EAT suggested that the employer should have looked at the rights and wrongs of the situation between the chef and the manager and whether they could have been dealt with in formal procedures. In other words, the third party’s request that the employee be removed, however important that third party might be to your business, is unlikely to justify dismissal on the basis of the request alone. For marketing and advertising agencies, dealing with employees who may rub your valued clients up the wrong way is often one of the most challenging of situations to deal with. There is nothing more likely to stoke the employer’s fire than a damaged client relationship followed by a successful unfair dismissal claim from the troublesome, former employee! Nick Wilson is responsible for the employment law service at Crooks Commercial Solicitors Limited, a specialist commercial law firm with experience in many sectors including recruitment. If you would like to discuss the issues arising out of these cases, please contact Nick on 01924 669159, email at email@example.com or www.ccs-law.co.uk.