Posted on 10.10.14
It’s always around 9pm on a Sunday that my mind starts turning to Monday morning and what it has in store for me as an employment lawyer. Because that’s when Downton Abbey starts, with its hotbed of staff politics and misbehaviour, matched only by the blundering decisions of the hothead hoity-toity landowners. There is so much for us employment lawyers to feast on.
Scandal is never too far away from Downton, both upstairs and downstairs (to mix my period dramas), and with it, historically, comes some fairly summary rough justice. Let’s face it, how many employees sit there on a Sunday night dreaming of being employed by the Downton estate in 1920’s Britain? Not too many I’d wager. A classic exchange from a recent episode went as follows: the Dowager Lady Violet was complaining to the (generally very worthy) cousin Isobel about her footman having a day’s holiday off. Isobel commented that: “Servants are human beings too” to which came the response: “Preferably only on their days off “. That may resonate with some employers – how many employers hark back to such golden old days when the Employment Rights Act and the Working Time regulations were nothing but a bad Orwellian dream?
In previous series, we’ve seen a footman dismissed for having shell-shock, leaving with nothing more than a good reference and a week’s pay in his pocket. Does disability discrimination/unfair dismissal spring to mind anyone? Was an up to date medical prognosis sought, were reasonable adjustments considered? You know the answer. A wayward lady’s maid was sent packing without so much as a by-your-leave – though she was caught bed-hopping with a visiting Major.
But do I detect a more benevolent attitude as series 5 continues to take us through the post-war 1920s? Kitchen servant Daisy has been given time off to study – the right to request the same in 2014 does not exist where employers have under 250 employees. Lady Cora has recently been tussling with whether to dismiss her maid, Baxter, who admitted a previous conviction for theft from a former employer. I’m sure in series 1, Baxter would have been immediately escorted from the premises whereas Lady Cora has dealt with it rather more admirably.
Just because Lady Cora has discovered Baxter’s conviction, and she didn’t declare it earlier, would that give Cora the right to dismiss in 2014? As ever, it depends on the circumstances of the offence and its relevance to the role. The individual facts should be investigated (which, to be fair, her ladyship did quite patiently before making her decision not to dismiss). A theft of jewellery from a previous employer would seem to be directly relevant to Baxter’s role as maid to Lady Cora, as, let’s face it, there are more than one or two pieces of diamante on show every Sunday night. Weighed up against that is Baxter’s voluntary (if belated) disclosure of the conviction and the fact that she has already been successfully employed at Downton in position of trust for some time. What if she had lied in response to a direct question about having any convictions? That in itself may constitute a breach of trust and confidence, but again employers would be best advised to establish the reasons why before making a decision.
So, what if Lady Cora had decided that Baxter could not continue in her role? An additional point for her to have considered would have been whether, given the size of the employer, there would be an alternative position Baxter could be offered which would avoid the risk of her having access to items of value. A rather clumsy comparison, but a real-life one that I have dealt with, would be the example of the bus driver with convictions for sex offences. Undoubtedly he would not be suitable for the school run, but is there anything to prevent him from working in an office at the depot with limited or no access to the public? We deal with these queries a lot more frequently than you might imagine and they’re often not straightforward!
Employers in similar circumstances should consider:
- carrying out a criminal record check before offering a job, if there’s a particular risk involved. On the face of it, if any conviction is “spent”, the applicant should not be excluded from employment. Unfortunately for the employee there appears to be no remedy if they are so excluded.
- asking a prospective employee to declare any convictions. If they don’t and you discover them later, you may be able to dismiss (after due investigation!).
- inserting a contractual right to require employees to undergo periodic criminal record checks and/or to declare any new convictions as they occur. If any disclosed convictions are spent, you need to be careful not to fall foul of unfair dismissal legislation.
- preparing a written policy setting out the rationale for requiring any of the above, for the sake of transparency and consistency.
Anyway, back to Downton. What might be in store next Sunday? Bullying and harassment? Relationships at work? Don’t get me started….