Monthly Bulletin – February 2025 – Practical Perspectives

Why, for many employees and managers ‘sorry seems to be the hardest word’

Apologising at work can be a daunting task. Often, employees and managers hesitate to say ‘sorry’ outright, opting for vague, noncommittal phrases like, â€˜I apologise for any hurt caused.’ Such equivocal apologies avoid admitting wrongdoing, instead shifting the focus to others’ feelings without acknowledging personal accountability. 

Celebrities are a dab hand at this. Lea Michele, the former Glee star, when accused of toxic behaviour on-set, issued an ‘apology’ which suggested that it was her privileged position that caused her to be “perceived as insensitive or inappropriate at times.” – appearing to shift responsibility for her actions. Recently, in his first attempt at an apology after a raft of sexual misconduct allegations were made against him, Masterchef host Gregg Wallace referred to his accusers as ‘middle class women of a certain age’. After this first attempt backfired, he attempted to apologise for this apology, this time with the classic deflection of personal responsibility: ‘I apologise for any offence that I caused’. 

Why is saying ‘sorry’ so difficult? Fear of losing face, damaging reputation, or admitting fault that could invite further criticism often holds people back. In hierarchical workplaces, managers may feel that admitting a mistake undermines their authority, while employees might worry about career repercussions. But avoiding genuine apologies can backfire, fostering distrust and resentment.

For managers, mastering the art of apologising is especially critical. When leaders apologise sincerely, they model accountability, promote a culture of openness, and build trust with their teams. A heartfelt apology: â€˜I was wrong, and I’m sorry for how this impacted the team. Here’s how I’ll fix it’  – demonstrates integrity and a commitment to improvement.

However, a poorly delivered apology can do more harm than good. Deflecting blame or using conditional language a la Gregg Wallace (‘I’m sorry if you felt that way’) communicates insincerity and undermines the apology’s purpose. True apologies require courage and empathy, showing a willingness to be vulnerable for the sake of repairing relationships and fostering a healthy workplace culture. A good apology isn’t just about saying ‘sorry’ – it’s about meaning it.

Comments about an individual’s accent can be harassment

A recent Employment Appeal Tribunal (EAT) case has highlighted that making comments about someone’s accent, such as saying it’s hard to understand, can sometimes be considered unlawful racial harassment.

In Carozzi v University of Hertfordshire, the employee (the Claimant) accused her employer (the Respondent) of several types of discrimination and harassment. Some of her claims focused on comments made about her strong Brazilian accent. Initially, the tribunal dismissed all her claims. However, the Claimant appealed, arguing that:

1. Accent and Ethnic Origin: She believed the comments about her accent were connected to her ethnic origin (being Brazilian), even if those making the comments weren’t influenced by her ethnicity when they made the comments.

2. Victimisation: She had claimed her employer refused to share a document (meeting notes) because they were worried she might use it to make a discrimination claim. Employees are protected from being treated less favourably because they have raised issues of potential discrimination. The tribunal had dismissed this claim on the basis that the employer would have withheld the document if they had been worried that the employee might make another legal claim (one which was not for discrimination) so there was no less favourable treatment. The Claimant argued that this was wrong.

The EAT agreed with the Claimant and allowed her appeal. Here’s why:

1. Accent and race are linked
   The EAT clarified that comments about someone’s accent can be ‘related to’ their ethnic origin – it doesn’t matter if the person making the comment wasn’t influenced by their ethnic origin in making the comments.
   
2. Refusing to share documents can be victimisation
   If an employer refuses to share a document because they fear it might be used in a discrimination case, this could count as victimisation. The EAT said the tribunal was wrong to dismiss this claim, the real question was whether the refusal to provide the notes was influenced, at least partly, by concerns about a possible discrimination complaint. 

What Does This Mean for HR?

• Train employees to be cautious and respectful about comments on accents—they can easily cross the line into harassment, especially if the accent is tied to a person’s race or nationality.
• Transparency is important. Withholding documents out of fear they might lead to legal claims could lead to victimisation complaints.

How to dismiss fairly when the working relationship breaks down

Employees who have worked for a company for over two years are protected by law against unfair dismissal. This means that if an employer wants to dismiss such an employee, they need to:

1. Have a valid or ‘fair reason’ for the dismissal.
2. Show that the dismissal was handled reasonably.

There are five fair reasons for dismissal, one of which is known as “some other substantial reason” (SOSR). SOSR is often used when the relationship between the employee and employer has broken down completely, making it impossible to work together.

In the recent case of Alexis v Westminster Drug Project, the employer restructured the organisation, and three roles were to be replaced by two new ones. The employees affected, including the Claimant, had to apply and interview for the new positions. The Claimant didn’t get the job. She had dyslexia and complained about the interview process, saying she should have received the questions 24 hours in advance.

After raising a grievance and appealing the outcome unsuccessfully, she began sending numerous emails to the decision-makers. This behaviour led the employer to call a meeting to discuss whether she could continue in her role. The employer concluded that the relationship had broken down beyond repair and dismissed her with notice for SOSR. The Claimant then brought an unfair dismissal claim.

The tribunal rejected her claim, and the Employment Appeal Tribunal (EAT) agreed. The EAT found that:

• Relationship breakdown justified dismissal
  The employer had reasonable grounds to decide that trust and confidence had been lost, and the relationship had reached a point of no return. In such cases, dismissal is a reasonable step.
• Length of service may not matter
  The Claimant argued that her long service should have been considered, but the EAT explained that length of service only matters if it is relevant to the decision. Here, the dismissal was due to the breakdown of the relationship, so her service length wasn’t a factor.
• No need to consider alternatives
  Once the relationship was irreparably damaged, the employer didn’t need to explore alternative options to dismissal.

HR can take the following points from this case: 

• If trust and confidence are completely lost in the employment relationship, dismissal may be justified under SOSR.

• Employers should document clear evidence of the breakdown and the steps they took to assess the situation.
• Length of service is not always a required consideration—only if it is relevant in some way to the dismissal decision.
• Unlike dismissals for capability or misconduct, employers don’t need to jump through additional steps or explore alternatives when they have clear evidence the relationship has broken down.

Government plans to extend ban on non-compliant employers hiring overseas workers

Employers who want to hire workers from outside the UK must generally have a sponsor licence. This includes hiring workers from the EU, Iceland, Liechtenstein, Norway, and Switzerland, who arrived in the UK after 31 December 2020. A sponsor licence ensures the employer can legally employ overseas workers.

What happens if employers break visa rules?

The Home Office can revoke a sponsor licence if an employer repeatedly breaks visa rules. This can cause serious problems for businesses that depend on overseas workers. If a licence is revoked:

• The employer cannot legally hire overseas workers anymore.
• Sponsored workers already employed will lose their visa. They usually have 60 days to find a new sponsor or leave the UK, unless they have less time left on their current visa.

Currently, there is no right to appeal a revoked licence. Employers must wait a “cooling-off” period of 12 months before they can reapply for a sponsor licence.

New proposed rules

The Government has proposed stricter rules to hold employers accountable and prevent worker exploitation:

1. Longer cooling-off period
   Employers whose licences are revoked will now have to wait two years instead of 12 months before they can reapply.
2. Stricter compliance with employment laws
   Employers must comply with employment rules, such as paying the national minimum wage. Breaking these laws could lead to their sponsor licence being revoked.
3. Ban on charging workers for visa sponsorship costs
   Employers will no longer be allowed to charge workers for the costs of their visa sponsorship, including certificates of sponsorship and sponsor licence fees. This rule aims to stop exploitation, particularly of care workers, who sometimes end up in debt to their employers. 

These changes are a wake-up call for employers who rely heavily on overseas labour. Ensuring compliance is more important than ever to avoid significant business disruption and losing access to overseas labour.

And finally, AI applications such as ChatGPT have, over the last 12 months or so, become an important tool in improving business efficiency. However, a recent tribunal judgment indicates that it is not just employers who are taking advantage of AI. It was recently credited with encouraging a serial litigant in a disability discrimination claim against a prospective employer. In Mallon v West Midlands Growth Company, the Respondent failed in its attempt to get the Claimant’s disability discrimination case struck-out on the basis that the Claimant was a serial litigant. According to the Respondent, the Claimant would be “unrealistic in applying for roles for which he [had] no relevant experience”. Since 2019, the Claimant had applied for roughly 4,600 jobs and initiated over 60 legal claims. 

The Claimant admitted he used an AI tool to analyse his email trails with prospective employers. He uploaded his correspondence to the technology, which, in the case against West Midlands Growth Company, allegedly revealed the company’s poor communication and that failure to accommodate his requests could amount to an Equality Act 2010breach.Hopefully, this serial job applicant story is an exceptional case. However, as AI technology continues to develop and becomes more accessible, more people will use AI tools to analyse the behaviour of their employers or prospective employers.