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A year later it was necessary for the employee to seek a further reference from the former employer. The prospective employer asked specific questions – would you re-employ him and is there any reason why we should not employ him? On this occasion the former employer referred to the issues that had been identified, explaining that they had not been investigated but suggesting that they would have led to no more than an improvement plan for the employee rather than any formal disciplinary action. The two specific questions were left unanswered. As a result of this comment the employee did not get the job for which he had applied and was out of work for some time.

The High Court ruled in his favour, finding that the reference involved a breach of the employer’s duty of care. Overruling this, the Court of Appeal decided that the employer could not be criticised for referring to the issues that had been identified while stressing that they had not been investigated. The Court considered that as the reference was factually accurate and balanced, it could not be said to be unfair. The case poses a dilemma for employers in cases such as this. The Court thought it was difficult to see what else the employer could have done: refusal to give a reference at all would probably have made it more likely that the prospective employer would draw an adverse inference.

The employee had in fact moved some 6 months beforehand but had failed to inform the employer. It was not until some three years later that the employer’s letter was brought to the employee’s attention, as a consequence of a personal injury claim which he was pursuing against the employer.

The EAT ruled that the employee’s employment had not been effectively terminated. If an employer regards an employee as having repudiated his employment contract by failing to submit sick notes and remaining on unauthorised absence, the employer must make it clear to the employee that he accepts the repudiation so as to bring the employment to an end. This will amount to a dismissal by the employer. There is no such thing as implied termination or “self-dismissal”.

In this case the employer for some three years failed to take effective steps to inform the employee of its decision to treat him as having repudiated his contract. His employment was therefore treated as having continued during this period. The outcome of the case might have been different if the employer had argued that the employment had been frustrated by the long absence but it failed to raise this point in the Employment Tribunal and was therefore barred from raising it on the appeal to the EAT.

Despite sending a contrite letter of apology, the employee was dismissed on the ground that the comments could have damaged the relationship between the employer and the VW Group and had put the employer’s reputation at risk. The comments made no reference to VW and there was no evidence that the relationship with VW had been damaged. The employer had a policy which warned against posting job-related information on the Internet as this could involve a breach of confidence. An appeal against the dismissal failed, even though the appeal manager took the view that the comment was “not too horrendous”.

The Tribunal found the dismissal unfair. It rejected the idea that the comment could be treated as a breach of confidence or a contravention of the employer’s general catch-all rule forbidding conduct which brought the company into disrepute or breached company standards.

Although the outcome was different from that of another recent case where the employer had a clear policy on internet use and the posting of Facebook comments, the Tribunal in that other case acknowledged it would have regarded a final written warning as a sufficient penalty. Employers need to be careful to avoid over-reacting when faced with conduct of this kind.

Under the Act a commercial organisation is guilty of an offence if a person associated with it bribes another person, intending to obtain or retain business or a business advantage for the organisation. In essence, bribing is defined as offering or giving a financial advantage to another person with the intention of bringing about or rewarding the performance of a business function in a way which is not in good faith or impartial or is in breach of trust.

Organisations will have a defence if they can show that they had in place adequate procedures designed to prevent bribery. A person associated with a commercial organisation will include an employee or agent but could also include a sub-contractor with whom the organisation has no direct contractual relationship. In order to address this risk, organisations may need to consider imposing anti-bribery conditions in contracts with their contractors and requiring that similar conditions should be incorporated in contracts with sub-contractors.

The government’s guidance states that hospitality and promotional expenditure that is reasonable, proportionate and made in good faith is an established and important part of doing business and that the Act does not seek to penalise it. However, hospitality and promotional expenditure could still form the basis of the offences under the Act. There would need to be an element of improper intent. The Guidance suggests that when the hospitality or expenditure is more lavish and beyond what might be the reasonable standards in the particular circumstances, there is more likely to be an inference that the elements of an offence under the Act are present. Other factors that might point to bribery are whether the hospitality or expenditure was not clearly connected with legitimate business activity or was concealed.

Employers are developing policies and procedures aimed at providing themselves with a defence. It is likely that policies and examples of acceptable and unacceptable conduct will vary as between employers depending in particular on the nature of their hospitality and promotional practices, as norms may differ between commercial sectors. Disciplinary rules will need to be amended to refer to any new rules that are introduced to prevent bribery. Whistleblowing policies may also need to be reviewed to ensure that employees who have concerns about possible breaches of the anti-bribery legislation follow the employer’s procedures for reporting such concerns.

This update is for guidance only and is not intended to be a substitute for legal advice on specific facts.