Wednesday, July 13, 2005

Pregnancy Discrimination – the grim statistics

Amazing as it may sound in the 21st Century, the Equal Opportunities Commission has reported that 45% of women employees interviewed in a survey claimed to have suffered less favourable treatment as a result of pregnancy.

This would suggest 30,000 lost jobs per year and a consequent "saving" of Statutory Maternity Pay of £12 million pounds.

None of this will come as a surprise to practising employment lawyers who will have many tales to tell of clients who have fallen pregnant only to mysteriously find themselves "redundant" or subject to previously unheard of disciplinary action or performance management.

The Devil's Advocate might suggest that this is the inevitable consequence of the increasing regulatory burden on employers in this area but the loss of talented and experienced staff to employers must surely be a greater detriment than the cost of family-friendly policies in this area.

For more details see

Follow the Rules or Pay the Penalty

The Birmingham Employment Tribunal has recently had to apply the new statutory provisions relating to failure to follow the Disciplinary Procedures required by the Employment Act 2002.

The rules require minimum procedures including written advance notification of the grounds for the disciplinary action and a fairly conducted meeting in order for a dismissal to be fair.

Where the procedure is not followed not only will the dismissal automatically be unfair but also the damages will be increased by a minimum of 10% and a maximum of 50%.

In the recent case the Claimant was dismissed without warning whilst in the car with his boss on a 2 day sales field trip, ostensibly for poor performance.

The Respondent tried to argue that the minimum uplift should be applied because it had not been rude to the Claimant. We successfully argued that the Tribunal should apply the maximum 50% uplift, which increased the damages by over £3500.00.

The Tribunal held that the purpose of the rule was not to compensate the employee for injury to feelings or to punish the employer but to reflect the seriousness of the departure from the required procedure. Since there had been no attempt to go about things in the correct manner a full uplift was appropriate.
Another good example of how costly trying to cut corners can be!

Friday, June 10, 2005

Crackdown on Workplace Computer Misuse

According to today's Times an Audit Commission report has found that nearly 50% of cases of IT abuse in the public sector relate to the downloading of porn.

In a scathing report the Commission criticises a "culture of complacency" and calls for the use of software which blocks access to such sites.

A growing proportion of Employment Tribunal cases involving Unfair Dismissal are believed to relate to misuse of the Internet at work.

Employers have not always won the reported cases and problems can arise where it has not been made clear what is and is not an acceptable use of workplace IT. This can be avoided by having a clear written IT policy and asking all staff to sign a copy as confirmation that they are familiar with the contents.

For further information see
http://www.timesonline.co.uk/article/0,,2-1646787,00.html
and

Monday, June 06, 2005

Who Is My Employer?

The Employment Appeal Tribunal has once again recently had to tackle the vexed question as to who is the Employer in a case where the employee had been provided via an Employment Agency.

In the case of Bushaway v RNLI, the Employment Tribunal found Mrs Bushaway was an employee of the Royal National Lifeboat Institution throughout the period she worked for the RNLI notwithstanding that for the first part of the period in question she was a "temp" supplied by an agency.

The practical importance of the distinction was that unless Mrs Bushaway could show that she was an employee throughout she would not have the necessary 12 months' qualifying employment to bring a Claim.

This is always an area which is ripe for litigation and employers need to be aware that the Tribunal will look behind how the parties have described the situation in documents and assess the reality of the relationship.

There were quite significant differences between the arrangements for the Claimant and permanent employees but the EAT held that the Tribunal had asked itself the right questions in deciding that she was an employee and its decision was not therefore open to attack.

The best practical advice may well therefore be that where employers are dispensing with a worker's services they should ensure that they follow a fair procedure just in case a Tribunal concludes that they are an employee, whatever the paperwork says.

Incidentally, it has recently been reported that there is at the present time a case going through the system as to whether volunteers working for the RNLI are "employees" for the purposes of employment legislation. This is a matter of some practical importance to charitable organisations and seems to be producing a lot of litigation at present. The outcome of that case will be awaited with interest.

There is a report of the case at

Opting Out Remains An Option!

The EU Parliament's controversial proposal for the removal of the UK's "opt-out" from the maximum 48 hour working week under the Working Time Directive has bitten the dust after the Government managed to obtain enough support in the Council of Ministers to prevent the matter being put to a vote.

The matter is unlikely to be raised again in the foreseeable future, especially as the UK is about to take over the EU presidency and given the general uncertainty as to the future direction of the EU in the wake of the rejection of the proposed EU constitution by French and Dutch voters.

Business leaders have reacted positively to the news and are keen to stress the competitive edge which the "opt-out" gives the UK, combined with our remaining outside of the "Euro zone."

Trade Unions, who have long campaigned for the end of the "opt-out", have expressed their disappointment at the loss of an opportunity to put an end to the UK's perceived "long hours culture", although employers would point out that many of those working the longest hours are high-earning, well motivated staff working those hours because they want to.

For more details please see

Tuesday, May 10, 2005

Mind Your Language!

The Head Coach of Super League Rugby League club St Helens has been dismissed for gross misconduct after allegations that he swore at employees of two clubs and at a match official.

The harsh penalty will surprise many, particularly those used to seeing professional footballers use "colourful" language with apparent impunity.

The Employment Tribunals have long recognised that bad language can be a ground for a fair dismissal. An employer is entitled to lay down its own rules and if it is made clear from the outset that bad language is not acceptable even an isolated incident may lead to dismissal.

If there is no express rule, then the Tribunal will look at the context – a one-off remark whilst under stress followed by a prompt apology may not justify dismissal where a lengthy tirade would do. Similarly the sort of banter which might be acceptable on a building site may not be appropriate in a Solicitors' office. Swearing at superiors, which is seen as insubordination, is likely to be particularly frowned on.

It now remains to be seen whether the Tribunal will have to adjudicate on this case!

For more details see:-

http://news.bbc.co.uk/sport1/hi/rugby_league/super_league/st_helens/4527831.stm

Thursday, May 05, 2005

The Wonders Of Modern Technology?

A recent study by a Psychologist at the University of London suggests that constant text messaging and use of email reduces mental capability and performance by the equivalent of 10 IQ points.

More and more businesses are becoming aware of the effect on productivity of the use of personal mobile telephones during working hours and a sizeable number of dismissal cases now relate to unauthorised use of work IT for personal activities.

Any well-run business will want to have an IT policy making clear what is and is not allowed – many of the cases where unfair dismissal has been found have arisen because proper parameters were not set. A good argument can be made for a blanket ban during work time in view of the apparent interruptions to concentration which email and text can bring.

For more details see:-

Out of Sight, Out of Mind?

The Court of Appeal has now confirmed that in calculating Maternity Pay entitlements account must be taken of any pay rises which the employee would have received from their employer had they not been absent.

Michelle Alabaster's case against Woolwich plc went all the way to the European Court of Justice in Luxembourg before returning to the Court of Appeal where she was awarded the princely sum of £204.53 plus interest.

This case follows on from the decision of the Employment Appeals Tribunal last year that failure to keep a maternity absentee informed of developments at work (in that case a vacancy for which she may have been interested in applying) was capable of being a breach of the implied term of mutual trust and confidence and therefore of giving rise to a constructive unfair dismissal claim.

All in all, a salutary lesson that those on maternity and similar types of leave should always be kept in mind and not simply forgotten for the duration of their absence.

For more details see:-

Friday, April 22, 2005

Sickness Absence – A Stressful Subject

The British Medical Journal has reported that stress and depression have overtaken lower back pain as the most common cause of long term absence from work.

Cynics often suggested that lower back pain was often quoted as a reason for absence from work due to the difficulties with disproving its existence, and the same people might make a similar suggestion with regards to "stress."

In the past the Courts have insisted that workplace stress is only actionable if it amounts to a well-recognised psychiatric illness but in the sphere of disability discrimination legislative changes remove this requirement, making it more difficult for employers to deal with long-term absences resulting from this type of condition.

It seems unlikely that stress will lose its place at the top of the "league table" in the foreseeable future.

For more information see:
http://news.scotsman.com/uk.cfm?id=372712005

A Hollow Victory?

Citizens Advice has issued a new report which warns that many employees who are awarded compensation by Employment Tribunals are failing to receive the money to which they are entitled.

The Tribunal has no power to enforce awards so if the employer does not pay up the employee's only choice is to incur further cost by seeking to enforce through the County Court – which is in itself a notoriously inefficient system of debt recovery.

CAB alone deal with up to 700 complaints a year of non-payment.

Legal rights are only as good as the ability to enforce them and this is one area where it would appear that a major overhaul is long overdue.


For more details see http://www.citizensadvice.org.uk/press-050401

Friday, March 11, 2005

£82,000 for Council worker subject to racial discrimination and victimisation

A whistleblower was recently awarded £82,000 from her ex-employer Sandwell Borough Council for racial discrimination and victimisation.

Caroline Duncan informed on the improper selection process used to re-house families. In 1998 she became aware that a white family had been housed before an Asian family despite the fact that the Asian family had been a higher priority on the housing list.

Miss Duncan subsequently suffered victimisation and racial discrimination from her fellow colleagues who made her sit at a desk alone and generally made life very difficult for her. She was also overlooked some 11 times for promotion into management and senior officer positions.

While the Council are considering lodging an appeal against the level of compensation awarded this cannot detract from the fact that Miss Duncan has won her case on a personal level showing that people and professional bodies alike who allow such victimisation to go ahead will be called upon to answer to their actions.

For Further information please see:

The Penalties of Part-Time Work for Females

Recent reports have highlighted that many female part-time workers are at a significant career disadvantage compared to their fellow female full-time workers.

Many females opt for the flexibility of part-time work so as they can continue with the care of children or older relatives. However it seems that this flexibility does not come without a price as many part-time workers find themselves stuck in lower-status jobs with little or no prospects of promotion and inevitability lower pay.

It can only be hoped that the gap between the part-time worker and the full-time worker is vastly reduced as the concept of flexible working patterns become more widely accepted by employers.

For further information see:

Swearing in the workplace – gross misconduct?

Few employers would dispute that the use of foul language by an employee is no longer acceptable behaviour and amounts to gross misconduct justifying immediate dismissal.

However, a Tribunal has found that a female lorry driver sacked for swearing at an assistant warehouse manager was unfairly dismissed.

The employee had become frustrated when she found another lorry blocking her way at a tyre depot. She used foul language and was consequently sacked for gross misconduct.

The employee expressed remorse for her actions, acknowledging that her language was disgusting and that she had not acted like a lady should.

The Tribunal ruled that she had contributed to her dismissal to the degree of 25% and awarded £4,000.00 in compensation. The Tribunal declined to order reinstatement.

The decision is to some extent surprising given the severity of the language used. However, Tribunals are willing to look at all the circumstances of a case and a relevant factor appears to be that more colourful language may be tolerated as the norm in the working environment of a lorry driver as opposed to an office worker.

For further information please see:

Police Authority Fail To Defend Equal Pay Claim

A Police Authority has been ordered to pay compensation of between £7,600.00 and £19,000.00 to 7 female employees, after it was proven they were being paid less than their male colleagues for doing similar work.

The Police Authority admitted liability after an independent job evaluation report found in the women’s favour, all of whom were in senior administration posts.

The women’s Union, Unison welcomed the decision, stating that it proved that this sort of discrimination had to stop or employers would be forced to pay out huge sums in compensation.

Hopefully this decision reinforces what should already be accepted practice, that women should be without question or qualification be paid the same as men who are doing work of a similar nature, and the police as enforcers of justice should not need the wake up call that this decision has given them.

For further information please see:

Wednesday, March 09, 2005

Maternity costs set to rise

The European Court of Justice has ruled that maternity payments must ensure that the recipient benefits in full from any pay rises awarded during her maternity leave.

This will even apply where the pay rise takes effect for other employees later than the first six weeks of the leave.

There is some suggestion that this change may be retrospective – potentially reaching back as far as 1976 when the relevant provisions of the Sex Discrimination Act came into force!

Whilst this is good news for pregnant women businesses will worry that this is just the latest increase in the financial and administrative/record keeping burden in this area. With paid Ordinary Maternity Leave set to be extended from 6 to 9 months by 2007 this is a burden which is only going to increase.

For further details see:-

http://news.ft.com/cms/s/dc724352-8eac-11d9-8aae-00000e2511c8.html

Thursday, March 03, 2005

Agencies Under Fire

The TUC has accused many employment agencies of dubious practices which lead to agency workers receiving less than the National Minimum Wage.

Amongst the scams are charging for cashing pay cheques.

The law in relation to Employment Agencies was significantly tightened last year and it is easy for even a reputable agency to fall foul of the complexities of the rules. In certain circumstances the contract may be unenforceable if the agency worker is not informed of certain rights at the outset.
For more information on this story see:

Long Hours - A British Disease?

The TUC last week urged employees to celebrate "Work Your Proper Hours Day" by sending their employers an anonymous "Bossogram" pointing out the amount of unpaid overtime which they do.

They claim that the UK has a "long hours culture" and that British workers carry out £23 billion pounds worth of unpaid overtime every year.

Long working hours can lead to stress, family breakdowns and ultimately to decreased productivity.

They can also leave employers facing hefty compensation claims, especially where the complex Working Time Regulations have not been followed.

For more details see:

National Minimum Wage - On The Up

The Prime Minister announced on Friday that the National Minimum Wage will increase to £5.05 per hour in October. This will be the first time that it will have broken the £5.00 mark.

In due course it is intended to increase the figure to £5.30.

There is a sharp divide between Unions and Business on this issue. The TUC claims that the rate is still too low, whilst employers' organisations claim that the increase will lead to job losses.

Although the principle of a National Minimum Wage now appears to be accepted by most, the level at which it should be set will remain a focus of controversy and the considerable complexity of the Regulations will continue to cause headaches for those who have to apply them.
For more details see:

Thursday, February 17, 2005

Lack of Workplace Flexibility Leaves Women Paying the Part-Time Penalty

Of the UK’s 7.4 million part-time workers, more than three quarters are women who are sacrificing their future career to either care for children or older dependant relatives.

Part-time workers get lower hourly pay, receive less training and therefore see their future career prospects and income eroded. As a result, female workers are significantly disadvantaged in the workplace.

This female “skills drain” is affecting UK productivity and has consequently led to the Equal Opportunities Commission calling for a fundamental shift towards flexible working practices.
Should flexible working become accepted practice across the economy women will be able to vary the time, place or organisation of work, enabling them to work the same hours as men and finally address the current workplace inequality which exists.

Monday, February 14, 2005

An End To Workplace Romance?

The idea of “love contracts” has long been used in America in order to deal with the problems caused by the break-up of a workplace romance.

The contracts see signatories pledge to behave professionally should their romantic involvement with a fellow employee cease, and are soon to be introduced in the UK.

Critics including the TUC are concerned about the level of control that an employer can exert over an employee, in what remains essentially a private matter conducted outside of the workplace.

Indeed, should employees refuse to sign such a contract and are then dismissed for so doing, they would have a strong claim for Unfair Dismissal.

However the need for such a contract from an employer’s perspective cannot be denied in view of recent reports which state that one in four relationships begin at work and the risk of sexual harassment claims against the employer if a relationship goes sour.

http://news.bbc.co.uk/go/pr/fr/-/1/hi/business/4257131.stm

Tuesday, February 08, 2005

Half of Mothers to be face discrimination

The Equal Opportunities Commission has unveiled new research which reveals the difficulties facing pregnant women in the workplace.

Around 30,000 of the 441,000 women who every year work while pregnant claim to have been sacked or made redundant as a result of their pregnancy. One in five working pregnant women claim to have lost out financially.

There are concerns that employers who have not adopted to the modern flexible workplace are losing out on the skills and experience of valuable members of staff by not having family friendly policies in place.

The law in relation to maternity rights is extremely complex and it is easy to do the wrong thing even when the employer has the best of intentions. A sensible employer will review their policies and procedures regularly with the help of expert legal advice, rather than risking being one of the 34 employers a month facing a potentially unlimited compensation claim.

For more details see:

http://news.scotsman.com/uk.cfm?id=122582005

Old age – New rules

The Department of Trade and Industry has decided that, for the first time, employees over the age of 65 will be able to claim redundancy pay, according to press reports.

The full details of the Age Discrimination legislation which will come into force in 2006 are yet to be announced. It therefore remains to be seen whether this is a "sop" to employees or an indication that employers can expect the overall tone of the provisions to be onerous (and therefore potentially costly.)

For example it is not yet clear whether the size of redundancy payments will be affected. At present employees receive 1 ½ weeks' redundancy pay for each full year worked over the age of 41, but there have been suggestions that this will be reduced to 1 week's pay across the board, rather than just for service between the ages of 22 and 41 as at present.

For more details see:

http://news.ft.com/cms/s/7ec5de2c-78ad-11d9-9961-00000e2511c8.html

Tuesday, February 01, 2005

Taxing Times

The Court of Appeal has now held that it is not in itself less favourable treatment of a fixed term worker to dismiss them at the expiry of their fixed term.

Mrs Webley was employed on a fixed term contract by the Inland Revenue and felt she had been treated unfairly in being dismissed after 51 weeks (before she qualified to bring an Unfair Dismissal claim.) She claimed this was unlawful discrimination on the grounds of her fixed term status because a permanent employee would not have been sacked after 51 weeks.

The Court of Appeal overturned the decision of the Employment Appeals Tribunal and said that as the fixed term was the whole essence of her contract, its expiry in itself could not be a detriment giving rise to a claim.

The Regulations are still comparatively new and it is wise to seek expert advice on their implications.

Ironically the Inland Revenue had paid out substantial ex gratia compensation to the workers who were to replace the fixed term employees, and who were told they would not be needed as a result of the (now overturned) EAT decision!
See a report of the case at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1745.html

Incapacity Benefit

This is a "hot topic" at the moment given Tony Blair's expressed intention to clamp down on claimants.

By co-incidence the Employment Appeals Tribunal has very recently confirmed that Tribunals must deduct the entire amount of Incapacity Benefit received from the compensation they award to a successful Claimant.

Previous case law suggested that only 50% was to be deducted, but the EAT said that this would give the employee a "windfall" because Incapacity Benefit is not covered by the recoupment provisions which require benefits to be repaid to the Department of Works and Pensions out of any damages.

This is of course good news for employers facing a Tribunal claim but the best advice is of course to avoid ending up in the Tribunal in the first place.

There is a full report on this case at www.employmentappeals.gov.uk/uploads/UKEAT0438041712005/index.htm
Read more about the Government's plans at http://news.bbc.co.uk/1/hi/uk_politics/4224721.stm

Tuesday, January 25, 2005

Watch your mouth!

The Employment Appeals Tribunal has recently had to rule on a case where an employee alleged that he had been promised a substantial pay increase by his boss over drinks at the firm's Christmas Party in Blackpool.

In the case of Judge v Crown Leisure Ltd it was held that the words used were "words of comfort" and not, as Mr Judge alleged, a contractually binding promise.

Nevertheless, every case will turn on its individual facts and employers should beware of comments made in a social context (especially after the lips have been loosened by a few drinks) having far-reaching consequences.

Former TV pundit Ron Atkinson has also been in trouble recently over alleged comments made about Chinese women during an after dinner speech. In the past an employer has been held liable to two waitresses who were exposed to racist jokes during an after dinner speech by comedian Bernard Manning. Although the Courts have now held that employers are not liable for the actions of third parties like said Mr Manning, they can still be liable if it can be shown that the employer's actions in exposing the employee to such treatment were themselves discriminatory.

The best advice – don't let the situation arise in the first place!

Case link:

www.employmentappeals.gov.uk/uploads/UKEAT0443042892004/index.htm)

Stress At Work – the ongoing saga

The Court of Appeal last week gave judgment in the latest set of cases dealing with this thorny issue.

The general drift of the case law seems to be against finding employers liable. At first instance the High Court had found in favour of 5 of the 6 employees whose cases were considered by the Court of Appeal but on appeal only 2 of these decisions were upheld, leaving the "score" at 3-3.

The key test is to ask what a reasonable employer would have done in the light of what he should have been expected to know. This will usually involve asking whether there was something unusual about the employee or the job which should have lead to steps being taken to avoid the employee suffering injury through stress.

Employers cannot be complacent – the recent consultation on workplace stress by the Health and Safety Executive is likely to lead to guidance in due course which may make it easier for employees to argue in the future that there were steps which the employer should have chosen to take and this is likely to be a fruitful area for litigation for some time to come.

See the full judgment at http://www.bailii.org/ew/cases/EWCA/Civ/2005/6.html

See further information from the Health and Safety Executive at http://www.hse.gov.uk/consult/condocs/stressms.htm

False Accusations – a cautionary tale

A teacher who was dismissed following allegations of sexual misconduct made by two pupils successfully claimed £22,000.00 compensation for unfair dismissal last week.

The Daily Mail for January 19th reported the case of Iwan Rees from Powys who was dismissed despite a Police investigation which concluded that the allegations were groundless.

Employers can find themselves in a difficult position – if no action is taken this can lead to legal action by the complainant (especially if they are a fellow employee) but if they take action prematurely then this can lead to a Tribunal claim.

There is no legal requirement to await the outcome of a Police investigation or for definite proof of guilt – the test in an unfair dismissal claim is simply whether the employer genuinely believed in the employee's guilt after a reasonable investigation.

Where the employer went wrong in this case is that it appears to have made insufficient enquries into whether the pupils were worthy of belief.

Given the potentially expensive consequences of getting this wrong this is an area where employers will want to get expert legal advice as soon as issues of this type arise.