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.