Has anyone come accross this issue before as i am not quite sure which way to dispute this one!

Client was employed full time and his employer wanted him to disclose his driving liscense details to a third party. Client was unhappy about disclosing sensative data to a an outsourced contracter and refused to sign - quoting data protection laws. Client lost his job on these grounds. Client argued his case at an ETA, case to be decided this week.

Meanwhile, client claimed contribution based JSA. Initially this was paid, then client was told the decision was superseeded and stopped. Client has appealed, arguing that he had 'just cause' to refuse the instruction and therefore not misconduct

Can anyone advise me of a way forward? Any advice appreciated

The issue of just cause or even good cause (strictly speaking) is not relevant for losing a job through misconduct. One has to argue that the employee’s actions were just not misconduct. If an employee had a good or legitimate reason for failing to comply with an employer’s request then he should not be sanctioned. You need to gather as many facts as you can.

Furthermore, it is important here to observe the distinction between “good cause” and “just cause”. Good cause is very much fact specific and is more or less what a reasonable person would have done in those particular circumstances having regard to all the relevant facts. The classic definition can be found in R(S) 2/63.

Just cause is subtler. Here it needs to be argued that it is reasonable in the circumstances for the burden of financially supporting the claimant to fall on other contributors to the national insurance fund. In other words was the claimant’s behaviour such that the NI fund should support him. Just cause is only applicable to leaving a job voluntarily.

If the ETA goes his way then his case should be unanswerable. If it does not then there will be problems.

Regards
Paul

Thankyou very much for your reply Paul. I am hoping the ETA will decide in his favour, as you say this will add weight to his case. As the client was given the choice of "sign or leave" it was difficult to establish if client was constructively dissmissed, unfairly dissmissed, or dismissed for misconduct, which hopefully the ETA will decide upon.

It seems to me that it will have to be a case of proving "good cause" as client appears confident he was dismissed rather than voluntarily leaving the job - in effect he had go.

Will keep you all posted - and thanks R(S)2/63 which has been very helpful.

Why was he asked to do this? Was there any good reason for the instruction? He is generally obliged as an employee to carry out all reasonable instructions from the employer. Could they not have verified the licence himself, and confimred whatever the other organisation needed to know>

It may have been a question of the contractor's insurance, in which case there was a chance that without this information they would not have been covered by their own insurers. If that's so, and there was a genuinely good reason for the instruction, he should have had an explanation.

If the facts show that he had to resign, it could be be argued that he did not lose his employment through his misconduct but as a result of effectively being told to resign (and thus this was also not a case of voluntary leaving see R(U) 1/58 noted in Wood. Ergo, no sanction should apply.

If you feel that the first part applies, it's a matter of then arguing that he did not do anything blameworthy and wrong and that his actions were reasonable in the circumstances, (eg lack of assurances about data security, history of identity theft, unreliable organisation, etc).

Then, also to submit if the Tribunal were minded to find that there was misconduct, to press for a minimal sanction period.

Theft carries a maximum sentence of imprisonment for seven years. To get any kind of prison sentence for such an offence (let alone 7 years) , it would be after many offences and/or major amounts stolen. There is an analogy with variable length sanctions. The maximum "sentence" is 26 weeks, and should only apply in cases of repeated sanctions and or aggravating circumstances. I have used this argument at Tribunals, having first heard it suggested by a Tribunal Chairman during a hearing.