How much investigation must an employer carry out?

For a dismissal to be fair, the employer must have a fair reason for dismissal and must have acted reasonably in treating that reason as sufficient to justify dismissal.

The Court of Appeal in Shrestha v Genesis Housing Association was asked whether the obligation to conduct a reasonable investigation means an employer must investigation every aspect of an employee’s defence to an allegation of misconduct. Its answer was no: an employer can decide something is too implausible to investigate.

Mr Shrestha’s expenses claims were examined over a three month period and it was discovered that he had claimed excessive mileage – every journey he had claimed was above the AA suggested mileage and, in some, instances, significantly greater. When questioned, he claimed difficulties in parking, one way road systems and roadwork’s, road closures and diversions were to blame.  The employer did not look into these reasons for the additional mileage and dismissed Mr Shrestha for gross misconduct.

The Court of Appeal was clear in its decision that the tribunal was required to consider whether the employer had carried out as much investigation into the matter as was reasonable in the circumstances. But the band of reasonable responses test applies to an investigation into alleged misconduct as well as to the reasonableness of the decision to dismiss.

The Court of Appeal held that the investigation was reasonable and should not be interfered with. To say that each line of defence put forward must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach. The investigation should be looked at as a whole when considering the question of reasonableness. Mr Shrestha dismissal was therefore fair.

50 Shades of Employment Law

Thank you to everyone who joined the Employment Team at CCW for its employment forum last week to discuss love and lust in the workplace.

Workplace ‘liaisons’ are nothing new, and neither are the problems than can result. Some can lead to sexual harassment cases which can carry serious legal – and financial – consequences.

Here are three things you maybe didn’t know (but ought to know) about sexual harassment:

  • ‘Of course I put my arm around her shoulders: we’re a family here’. You may believe your conduct is harmless and not intended to have the intention or purpose of violating the other person’s dignity. However, if the conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person that will be harassment. Crucially, the effect is assessed from his/her subjective viewpoint and not the harasser’s. There is, of course, an objective test as well: a reasonable person must have expected the person to have felt that way. So, if you put your arm around her shoulders once but don’t do it again after she tells you it makes her uncomfortable, that’s unlikely to be harassment. If you continue to do it despite knowing how it makes her feel, wouldn’t you expect her to feel intimidated or offended? Be aware: a one-off incident can be sexual harassment if it is serious enough. The idea that the harasser was only ‘testing the water’ and did not know the conduct was objectionable will not wash with an Employment Tribunal.
  • ‘We’ve always enjoyed banter at work. If someone doesn’t like it they don’t have to join in.’ Sexist jokes or stories need not be directed at anyone in particular for someone to find it offensive. Similarly, an employee can find it offensive and believe their dignity has been undermined where colleagues are viewing sexiest or pornographic images on computer screens even when he/she has never been shown them and has not complained.
  • ‘I’ve behaved exactly the same way towards her for years and she’s never complained’. Just because someone has put up with conduct for years does not mean that it is wanted conduct and it has not necessarily put paid to a claim of sexual harassment and/or constructive dismissal.

We were delighted to be joined by guest speaker, Steph Brown District Manager East Scotland for Signet Trading, H Samuel Division. Steph explained: why she won’t allow her staff to leave copies of Fifty Shades of Grade lying about in staff rooms; why sexy playing cards can spell trouble at staff events; and CCTV cameras can catch much more than just shoplifters – but only those of you who joined us will know why!

The Employment Team at CCW will be discussing disability discrimination at the next employment forum on 23 April 2015, 12 – 2 pm, at our Dunfermline office. If you would like to join us please reserve your place by emailing Donna Reynolds at  Donna Reynolds is an experienced employment law and HR specialist in Fife, Edinburgh and across Scotland.

Worker’s right to be accompanied at a disciplinary or grievance hearing

The right to be accompanied at a disciplinary or grievance hearing, and how that right is exercised, is something employers and employees often argue about.  The recent Employment Appeal Tribunal ruling in Toal and another v GB Oils Ltd regarding workers’ rights to be accompanied to disciplinary and grievance meetings, provided they make ‘a reasonable request’, is not necessarily going to put an end to these arguments. The EAT ruled that, provided the companion is a work colleague or trade union representative/official, the employer must agree to the worker’s request. The ACAS Code of Practice on Disciplinary and Grievance Procedures will now be changed to reflect this decision.

Our advice until now has been to only accept reasonable requests for a companion. For example, we wouldn’t advice that you allow a worker to be accompanied at a disciplinary hearing by someone who was a witness (either for you or the worker) because that would lead to a conflict of interest. Or, we would agree that it would be unreasonable for a worker to request to be accompanied by a colleague working at a different or remote site when there is someone whom the worker works alongside both available and willing to accompany him or her.

The changes to the Code of Practice will confirm that the right to choose a companion is not linked with the requirement for the request to be reasonable. However, it does say that “in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may chose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location”.

You should also be aware of these additional changes:

  • Workers can change their chosen companion without waiving their right to change their choice again.
  • A worker does not need to put their request in writing or make it within a certain period of time but should provide his or her employer with the name of the companion where possible and specify whether it is a fellow worker, trade union representative or official;
  • A worker should provide their employer with enough time to make any necessary arrangements to allow the chosen companion to attend the meeting.

It still remains the case that if a worker’s chosen companion is not available at the time proposed by the employer, the employer must rearrange the hearing to a time proposed by the worker (which must be both reasonable and within five days of the original date proposed).

The concern with these changes to the Acas Code of Practice is that they could lead to an Employment Tribunal concluding a dismissal is unfair if an employer refuses a worker’s choice of companion.  However, Acas has said that “if the worker’s choice was designed to disrupt the process then the remedy for the employer’s breach of their right by refusing their choice of companion, might only be nominal. Moreover, there may also be a limited impact on any subsequent unfair dismissal case, as an employer’s refusal to allow an employee to be accompanied by their companion of choice would not necessarily make the dismissal procedurally unfair nor necessarily lead to any uplift in any compensation awarded.”

Depending on the circumstances, and regardless of the changes to the Acas Code of Practice, you may decide that you are still unwilling to agree to, say, the worker’s witness accompanying him or her at the disciplinary hearing. If you’re ever faced with this decision don’t hesitate to get in touch to chat through the possible consequences of your decision.

Donna Reynolds is an experienced employment law and HR specialist in CCW’s Employment Team working in Fife, Edinburgh and across Scotland.


What’s in a name – have you been ‘holding’ out?

Perhaps you’d like to consider adding group, international, holdings or services to your company name (or register a similar name for other companies in your group)?

Until very recently, there was a prohibition on the use of certain words considered to be the “same as” or “sensitive” within company names, but thanks to recent legislative changes the list of words which cannot be chosen has been reduced. Of course, your corporate names may well have been sorted out a while ago but if your timing was unlucky and had to choose differently, you can think again now. There are still some words and expressions which cannot be used. However, changing a company name is a simple process and we can guide you through any queries you have.


If you would like more information please email Emma Arcari is an experienced corporate and commercial solicitor advising businesses on contract law, transactions, procurement and disputes in Edinburgh and across Scotland.

Will Fifty Shades do the law a favour?

With success come various burdens. It is often said that imitation is the sincerest form of flattery, but such flattery is often a colossal problem for successful creative artists. This has been the case in recent years for the author of Fifty Shades of Grey, E.L. James.

She joins the ranks of many best-selling authors, such as J.K. Rowling and Dan Brown, who invest heavily in the enforcement of their rights to protect their works. These cases often address very contentious and novel points of law and, although they may be seen as publicity stunts, often clarify important principles of law that might not otherwise be considered by courts due to the common lack of resources of copyright holders to take such cases to court. The problems which E.L James has encountered are no exception.

One problem that blights her regularly is the ripeness of the books for parody. Parody is a category of copyright usage that is treated differently in various jurisdictions. A recent change to UK law has created new exceptions from copyright infringement for parody, caricature and pastiche. They are now permitted when previously the permission of the rights-holder was required. This new law was scheduled to come into force in July 2014, but was delayed until October 2014. Unfortunately for some creative comedians, their production of a parody of the novels called “50 Shades! The Musical” was due to premiere in the UK at the Edinburgh Festival in August. It was therefore met with a legal challenge, as various other parodies of the books have in recent years.

However, the new exception will potentially cover any future parodies in the UK, subject to some safeguards. The main safeguard is the “fair dealing” requirement, which is notoriously controversial and difficult to define. Should this year’s Festival throw up another 50 Shades parody, as it surely will, a legal challenge by E.L James would be very much welcomed by legal commentators to test and clarify the new law and its components. However, the poor parody-makers might well be deserving of a break at last.

The Fifty Shades series is well-known to have derived from fan fiction written in honour of Stephanie Meyer’s Twilight series. The issues surrounding fan fiction, derivative works and copyright infringement are a labyrinth and have distinct nuances in different legal jurisdictions. In the UK, these issues were addressed in a case surrounding the Dan Brown book, The Da Vinci Code, which was challenged as infringing an earlier work by non-textual copying. The claimant listed various similarities between the works, but the case ultimately failed, as would most such cases given the difficult test involved.

However, this issue has been raised in a US case relating to a pornographic film made of the Fifty Shades novels. The producer of the film, Smash Pictures, claimed that E.L. James’ rights were unenforceable, as the Fifty Shades novels themselves lacked copyright due to (a) them being derived from the Twilight books; and (b) the intermediate fan fiction version being placed in the public domain. Although this case was settled out of court, it does raise some interesting issues that might be raised in the future in the USA, which has different laws from the UK relating to derivative works. Such a case could help clarify the position of the rights in fan fiction, which is a growing phenomenon in recent years. However, unless Stephanie Meyer decides to raise a case, it would seem quite unlikely such a case would get very far.

What is certain for E.L. James, especially with the upcoming release of the film adaptation of the books, is that there will be further enterprising people that will seek to capitalise on her success. This will lead to further legal action and, hopefully, the clarification of a few more problematic legal niggles.

Grey Lease Rights

Black and white may be desirable in commercial property fine print, but it pays to be aware of the other shades if pain is to be avoided.

A grey area in commercial property leases relates to the termination of commercial lease – excluding residential and agricultural leases, to which different rules apply.

Many clients are surprised to learn that despite there being a clearly defined end date in their lease it will not automatically terminate on that date unless either the landlord or the tenant serves a valid notice to quit on the other.  In the absence of such a notice the lease will continue on the same terms by “tacit relocation”, which translates into the term “silent renewal”.  Where the original term of the lease was in excess of one year the period of tacit relocation will be a further year and if it was for less than a year it will continue for the same period (and so on indefinitely until a valid notice to quit is served by either party). The extension will be on the same terms and conditions as contained in the original lease, with the exception of the duration.

In practical terms what does this mean for the respective parties? For landlords it can prevent them regaining possession of their property.  As such the lease could continue from year to year at the same rent. For tenants it may be beneficial to continue the lease year to year due to the rent implications, but their security of tenure will be limited to a year at best, which commercially could be difficult. Alternatively, tenants who want out of the lease will be horrified to find it extended by up to a year.

Given the above it is vital that the parties are aware of the end date specified in the lease and of the notice provisions if they do wish it to end on that date. Where the period of the lease is more than four months the period of notice is generally not less than 40 days.

So, don’t get tied up in an uncomfortable position – stay on top of your lease terms or they could come back to bite you.


Love Is in the Air

With both Valentine’s Day and the release of 50 Shades of Grey just around the corner, Love is in the air. And that can include the workplace.

This will come as no surprise to anyone who has met their significant other at work. (If that includes you, you are in good company. Think Barack and Michelle Obama, Jada Pinkett and Will Smith, Angelina Jolie and Brad Pitt.) However, it will also come as no surprise to learn that not everyone struck by cupid’s bow from across the open plan office go on to live happily ever after. Office romances can often be as short lived as the ‘good’ biscuits in the office biscuit tin, or the memory of the weekend on Monday mornings. What’s more, they don’t often end amicably which can spell trouble for employers.

There’s no employment law against an office romance. Whereas in the US, love contracts are commonplace, employers in Scotland have long recognised that you can’t legislate affairs of the heart or, more accurately, employees can not give up their rights to be protected from sexual harassment. Here, unlike the US, employees are not fired for partaking in a ‘romantic liaison’ or office romance with a co-worker or, at least, not without having to defend itself against a sex discrimination claim for doing so.

The trouble with love is everything is rosy until we fall out of love. Problems can arise when one half of the couple doesn’t want things to end. Or the feeling is not mutual and one co-worker’s flirting or sexual advances are most definitely not welcome. The possibilities for sexual harassment complaints are endless.

There are other issues to consider too. For example, one half of the couple has the power to make decisions over the other’s role. This could give rise to a conflict of interest and accusations of favouritism from jealous colleagues. Depending on their respective positions in the business, how can the employer be sure that confidential information remains just that?

It’s not unknown for employers in certain industries to enforce a policy of not allowing romantic relationships between co-workers in the same department. If one develops, one or both can then be transferred to another department. However, for most employers the better approach may be to think carefully about the behaviour or conduct it will not, and its employees should not have to, tolerate in the workplace including inappropriate physical contact or language or personal use of company communications systems. The employer then has a very clear policy that it can then communicate and implement. Rules preventing those in relationships interviewing, managing or promoting each other may also be included in this policy and exiting policies such as the equal opportunities policy could be updated to reflect the employer’s tolerance towards not only co-workers romantic relationships but their everyday, platonic interactions with each other.

If you would like more information The Employment Team at CCW are hosting its bi-monthly employment forum on Thursday 12 February at CCW Business Lawyers Dunfermline Office where we will be celebrating the month of love. We would love for you to join us to explore some of the grey areas in employment law including: sexual harassment, is it or isn’t it? whether an employee’s ‘exploits’ outside work can affect their position at work; and personal relationships at work.

We are pleased to be joined by our guest speaker Stephanie Brown, District Manager East Scotland for Signet trading, H Samuel Division. Stephanie will share her love/hate experiences of managing employee relations with the help of case studies.

It’s free to attend and lunch will be provided. Book early to secure your place. Contact Donna Reynolds.


50 Shades of Grief

Sorry for the pun, but as a New Year resolution, can I urge you to avoid giving lawyers lots of cash by not putting in place that paperwork that you always promised to get around to. Put another way, lawyers like us make more money from sorting out a mess than from preventing a mess happening – and while we’re always happy to accept your generosity, bear in mind the other consequences of things being “not quite right”:

  • The business may go down the tubes as you spend all your time arguing with former colleagues, seeing your accountants and lawyers and so on
  • The bank may not like what is happening and call in their loan (and that guarantee you signed years ago…)
  • Your competitors may take their eyes off the ball, and start out-manoeuvring you.

So – what is to be done? Some things are predictable (death, for example) and some can be anticipated (serious injury, shareholder disputes or divorce). I think it best to prepare for the worst in the hope that it won’t happen. So:

  1. Do you have a Shareholders Agreement in place? If not, shouldn’t you? Disputes, death or divorce can (often) mean that otherwise successful businesses fall apart
  2. What happens on death or serious injury? If you don’t have wills and Powers of Attorney in place, sort that out – now. As a personal example, a friend in Australia had a stroke and couldn’t deal with family finances – but the bank wouldn’t/couldn’t take instructions from his wife. That’s bad enough at a personal level – but what if that happened to your business and suppliers couldn’t be paid?
  3. Plan ahead. We are all guilty of cracking on with the day job and getting our heads down, without pausing and working out what we want to do. In other words, the business does what we want, and we don’t react to the latest crisis. I got some good advice some years ago – which, of course, I haven’t followed – to find some time to look out of the window and think.

This is, inevitably, a counsel or perfection. It would be nice to find the time to get things done properly but today’s crisis is….. But, if you don’t start, you certainly won’t get there. So, why not come into our office for a coffee and at least get what should be done onto a piece of paper. The tasks can then be prioritised and, if they can’t all be done this year, let’s make sure that this time next year there is at least one less on the list.

Good idea? Unless, of course, you want all that hard earned money to go to lawyers or accountants…!