EMPLOYMENT LAW JANUARY 2019
Employment law SOS
This month, our employment law expert explores catering
for a shopfloor worker with a severe nut allergy, an alleged
managerial cover-up and how to deal with poor references
BY DAVID BESWICK, SENIOR PARTNER, EVERSHEDS SUTHERLAND www.eversheds-sutherland.com
O ne of our managers
(‘M’) has been accused
of asking a member of the
shopfloor team (‘J’) to lie in
order to cover his back. In
short, M had told the rest of
the senior team that he was
at a meeting with one of our
suppliers, when in fact he
was (allegedly) on the golf
course. M asked J to fabricate
a phone call from the supplier
to ‘verify’ that M was at the
meeting. J, rightly, reported
M to his line manager, but
we’re unsure of what the right
course of action should be?
This situation potentially
has both whistleblowing and
disciplinary implications. In
relation to whistleblowing, J
has raised a concern regarding
malpractice by M, which if
it amounts to a qualifying
disclosure, will afford J
protection from suffering any
detriment or dismissal as a
result. Whether the report
of M’s behaviour to J’s line
manager amounts to a qualifying
disclosure will depend on a
number of factors, including
what J told his line manager
and whether J had a reasonable
belief that the disclosure was in
the public interest.
Regardless of whether
the matter amounts to
whistleblowing, in taking the
matter forward, an investigation
will need to be conducted into
the matters J has raised. This
would usually include reviewing
any documentary evidence,
taking statements from J and
M separately, and also from any
other relevant witnesses. It can
then be determined whether
there is a case to answer, and
whether a disciplinary hearing
should be convened.
In advance of any disciplinary
hearing, M will need to be made
aware of the full allegations
against him and receive a copy
of the evidence to be considered.
He will also have the right to be
accompanied at the hearing by
a colleague or union rep. The
manager chairing the disciplinary
hearing should be independent,
as far as is possible, and it is
recommended that a note-taker
is also present. After all evidence
has been considered, the chair
will make their decision on
the appropriate outcome. This
should be confirmed in writing.
If a sanction is applied, M
should also be given the right
of appeal. Any appeal should be
We’ve recruited a new
member of staff who
has an extremely severe nut
allergy. Even the slightest trace
of nut in the air will mean
he needs hospital treatment.
We clearly don’t want that
to happen, so have vetted
everything in the canteen
to make sure it is nut-free.
However, one member of staff
has objected to this, refusing
to ‘sacrifice his lunch for the
sake of one person’. Is there
anything we can do?
Employers have a legal duty
to provide a safe working
environment so far as reasonably
practicable. This legal duty
straddles both health & safety
and employment law obligations
and includes safeguarding any
employees with allergies.
Employers should look to
take a risk-based approach,
as with other workplace hazards,
and take reasonable steps to
prevent exposure. Just because
a measure is possible does
not mean it must be taken;
it is important, though, that
reasonable control measures are
put in place to reduce the risk of
exposure, such as clear labelling,
effective communication to
all employees and training to
raise awareness. In vetting the
canteen produce, it sounds like
you have already taken some
steps in this respect.
We would also recommend
that you ensure that you have
in place a sufficiently trained
first aider to be able to deal with
anaphylactic shock until fully
qualified medical personnel can
take over, and take specialist
advice in relation to any other
steps you could reasonably take.
Open communication will
also likely have a positive impact.
heard by someone who has not
been previously involved in the
matter, and preferably in a more
senior position than the manager
who chaired the original hearing.
We suggest that you review
the company’s disciplinary
policy, as this may provide
guidance for you, particularly
around timescales and who your
company deems appropriate
to deal with the various
stages of the investigation
and disciplinary process. We
also suggest reviewing the
company’s whistleblowing
policy and ensuring that steps
are taken to protect against any
repercussions for J resulting
from him raising his concerns.
12 www.manufacturingmanagement.co.uk
/www.eversheds-sutherland.com
/www.manufacturingmanagement.co.uk