Thursday, September 30, 2010

Unfair Dismissal and Continuous Service - When a summer "break" is not a "break."

The EAT has made an interesting ruling on whether a 7 week break in work for an employer meant that a teacher did not have the 12 months' continuous employment that is required (in most cases) before an employee can bring an Unfair Dismissal claim.

Mr Hussain had a fixed term contract to cover for a teacher who was off sick. This lasted from 26th April to 8th July 2008. By co-incidence the teacher for whom he was covering resigned on 8th July.

As a result on 25th July Mr Hussain was offered a permanent job, replacing the teacher who had resigned. This was to start when the new term began on 5th September.

On 5th June 2009 he was dismissed. If his continuous employment started on 26th April 2008, when he first started at the School, then he could bring an unfair dismissal claim. If his continuous employment began on 5th September 2008, when his current contract began, he could not.

Where an employee is absent from work during any week due to a "temporary cessation of work" that week counts towards their continuous employment.

The Employment Tribunal found that the absence was not because of a "temporary cessation of work." The two contracts were separate and when the first one ended there had been no expectation of Mr Hussain returning. It was "pure chance" that a new contract had been entered into. The suggestion was that it would in some way be "unfair" for Mr Hussain to acquire employment rights in those circumstances.

The Employment Appeal Tribunal rejected this argument. The question was purely and simply whether the break between the two contracts was due to a temporary cessation of work. Whatever the reason for the first contract ending and the second one starting, there had been a temporary cessation. The school closed for the summer in July and re-opened in September, when the work began again.

Whether this was "fair" was beside the point. His Honour Judge McMullen stated "This is not about fairness. It is about construction of the statute." A salutory reminder that us lawyers work in courts of law and not courts of justice!

The EAT was at pains to stress that this was a decision on its specific facts. The fact that Schools tend to have terms and can be predicted to re-open after the summer was clearly a relevant consideration.

The rules about continuous service contain various little quirks and what can appear to be breaks may not be so. If someone works at all during a week it counts, so someone who resigns on a Tuesday and is then taken back on the Friday of the following week will retain their continuous service. It should never be assumed when dismissing someone that because they have not been an employee for every day of the last 12 months they can be dismissed without any risk. It should also be remembered that the statutory notice period of one week will be added onto the length of service even if not worked and as such the qualifying requirement is really 11 months and 3 weeks (ish.)

The case is reported at http://www.employmentappeals.gov.uk/Public/Upload/10_0199fhwwSBSM.doc

Sex Discrimination, Constructive Dismissal and the Office Christmas Party!

Only last week in this Blog I bemoaned the frequency with which Solicitors appear as parties in cases before the Employment Appeal Tribunal (EAT.)

Lo and behold another case is reported today. The facts are quite bizarre and as the EAT delicately put it revolve around "injudicious behaviour at the office Christmas party."

Ms Nixon was in a relationship with a colleague at the firm of Solicitors for which she worked. However at the Christmas party much alcohol was imbibed and she appears to have ended up retiring with the firm's IT manager to a room at the hotel where the party was being held.

Whilst drawing a veil over what then transpired, suffice to say when Ms Nixon discovered she was pregnant shortly thereafter there was much speculation in the office as to whether there were in fact two candidates for the post of father.

Somewhat concerningly from an employment law perspective far from seeking to quell the speculation the HR Manager appears to have been instrumental in spreading it.

Ms Nixon hoped to arrange a move to another office of the firm, at least until her complaint about the HR Manager was resolved.

The senior partner however came to the conclusion that she must return to work at the usual office.

The Claimant resigned, complaining about the failure to deal properly with her complaint about the HR Manager and claimed constructive dismissal and sex discrimination.

At first instance the Tribunal found in her favour on constructive dismissal but rejected her sex discrimination claim. They said that the reason why she objected to the speculation was that it reflected on her behaviour/a relationship with the HR manager at the Christmas party and was not related to pregnancy.

Her damages for unfair dismissal were reduced by 90% to take account of what was said to be her contributory fault, including her conduct at the party and events after the proceedings were commenced, including what the Tribunal felt were inappropriate comments to the press.

Both sides appealed to the EAT.

The finding of constructive dismissal was upheld. The Tribunal had correctly found that the Respondent's handling of the grievance had been inappropriate.

The Tribunal found that the complaint did relate to pregnancy - the speculation was about who had made her pregnant - and therefore substituted a finding of sex discrimination.

The case was remitted to the Tribunal to reconsider the finding on contributory fault and the Tribunal was reminded by the EAT that only conduct preceding the dismissal can be taken into account. The EAT also gave a strong steer that the behaviour at the Christmas party could not be said to have contributed to the fundamental breach by the employer.

The EAT rejected the Respondent's claims that the Tribunal had shown the appearance of bias. The Respondent was also criticised for sending the Employment Judge a copy of a without prejudice offer they had made. A Judge should never see this sort of material before handing down his or her decision.

The report is at http://www.employmentappeals.gov.uk/Public/Upload/10_0108wwfhSBZT.doc

Tuesday, September 28, 2010

Rejection Letters - To Write or Not To Write

In the current economic climate advertisements for job vacancies will typically attract very large numbers of applications. In addition speculative letters enclosing a CV in the hope that there might be something available are becoming increasingly common.

Employers may be tempted to only respond to those applicants who they want to interview, or even not to tell people who come for interview the outcome unless they have got the job.

Setting aside whether this is courteous (there is nothing more annoying than not being contacted again after an interview - I am still waiting for the outcome of an interview I had with a firm in Nottingham in 1991!) is it sensible from a legal perspective?

Whilst there is no legal obligation to write back to someone, failing to do so may if they come from a category of person who can bring a discrimination claim encourage the applicant to think that their letter and CV have not been properly considered- and that this was because of their race, sex or whatever.

Sending a letter explaining that they have been unsuccessful after full consideration will at least make them less likely to read sinister motives into the lack of a response.

The vexed question is then whether you say anything about why the person has not got the job, or why the successful applicant did. On balance it is probably best not to volunteer this information as a matter of course - if you have been unlucky enough to attract the attention of a serial litigant it may just give them information to pore over looking for flaws.

If however someone persists and positively asks for feedback then it is probably best to give them some constructive explanation as to what would have made their application more attractive. It is unlikely to be appropriate to give details about the attributes of the successful candidate (especially if they happen to have been of a different race, sex, age etc.)

Finally, it may be best not to tell unsuccessful applicants that you will keep their CV on file. If they do not get a subsequent job for which they would have been qualified and they find out that someone less obviously suitable got that job then you may once again face allegations of discrimination.

Never forget - damages for discrimination are potentially unlimited, even for someone you have never met!

Thursday, September 23, 2010

Employers' Liability for Bad References - A Cautionary Tale

The Employment Appeal Tribunal has upheld a Judgment of the London Central Employment Tribunal which found a firm of Solicitors and an individual Partner liable for victimisation after a former employee of a predecessor firm was given an unhelpful reference.

The reference made various negative comments but most significantly referred to the fact that the employee had previously made a complaint to the Employment Tribunal of sex discrimination.

The Tribunal found that this comment was gratuitous and could only have been intended to put the recipient on enquiry in relation to those proceedings.

The actual appeal was about whether the Solicitors were liable for the loss of earnings arising from the withdrawal of the job offer resulting from the bad reference. The EAT held that they were. The evidence showed that the new employer had specifically taken into account the mention of the Tribunal proceedings and the Respondents' actions had caused the Claimant's loss.

As such the Respondents were "on the hook" for these losses. The figure will be set later but as we are talking about London Solicitors the amounts will presumably be significant. An award of £7500.00 for hurt feelings was also upheld.

There is (usually) no obligation on an employer to give a reference. Whilst it is an urban myth that you cannot give someone a bad reference (you can if it is fair and accurate and you are not doing so because they have done a protected act like made a claim of discrimination and as long as you do not discriminate on any impermissible ground) why would an employer want to take the risk?

On the other hand there is no point giving someone a good reference that they do not deserve because you can then be liable to a third party who employs them if they were misled!

The safest course is to have a policy of simply providing a basic factual reference giving dates of employment and position held, and making clear to all staff from day one that this is what you will do. It is important to have a blanket policy because if you pick and choose you might be accused of discrimination.

Oh, and unless there is a good reason for doing so, don't volunteer that the employee took you to a Tribunal!

It is a depressing feature of reviewing reported cases in the Employment Appeal Tribunal that firms of Solicitors appear as the losing party with disturbing regularity. Perhaps even more concerning is how often this seems to be in cases relating to discrimination - especially on grounds of sex or disability.

Whilst this is entirely speculative, one does wonder whether this reflects an unwillingness on the part of non-specialist Solicitors to seek advice from Employment lawyers, presumably on the basis that as Solicitors they already assume they know how to do things right. On the other hand they may assume that people will be reluctant to sue Solicitors. If those mindsets are out there then they could prove to be very expensive. It is worth bearing in mind that Employment Tribunal Awards are unlikely to be covered by Professional Indemnity Insurance.


The case is reported in full at http://www.employmentappeals.gov.uk/Public/Upload/10_0189rjfhMSJOJ.doc

Friday, September 17, 2010

Unfair Dismissal - What Did I Do Wrong?

The Employment Appeal Tribunal has reminded employers that they must be careful to ensure that an employee facing a disciplinary hearing knows exactly what they are supposed to have done.

Mrs Celebi worked for a catering company and was based at a Sixth Form College in London. She was responsible for organising the cash collected from the students so that it could be banked. Somewhere along the line from the students to her, the security company and the Bank £3000.00 in cash went missing one day.

Mrs Celebi was suspended and asked to attend a disciplinary hearing. The letter made clear that she was at risk of dismissal for gross misconduct but did not say that the employer suspected that she was guilty of stealing the money.

She was subsequently dismissed and brought an unfair dismissal claim.

At the Employment Tribunal the clear evidence from the manager who dismissed her was that she believed Mrs Celebi had taken the money.

The Tribunal concluded that the employer had reasonable grounds for believing that Mrs Celebi was responsible for "the missing £3000.00" and that it was fair to dismiss her.

The EAT said this was wrong. As the Court of Appeal had made clear in the previous case of Strouthos v London Underground an essential part of a fair procedure is that the employee knows exactly what the allegation is. There is a difference between being to blame because money goes missing (it could be a mistake, lax security, inefficiency) and being guilty of stealing it. If Mrs Celebi was being disciplined for stealing she should have been told this.

Her dismissal was therefore unfair.

The case will now go back to the Employment Tribunal to decide what compensation she should get and whether her damages should be reduced because if she had known the charges against her she might have been fairly dismissed anyway or because she contributed to her own dismissal.

That will apparently be the eighth time the case will have been before the courts (so far.) Bearing in mind that the employer will probably not recover its costs even if it succeeds in reducing the damages award to nil it just shows how much cheaper it is to ensure that you draft the disciplinary letter clearly in the first place.

The case is reported at
http://www.employmentappeals.gov.uk/Public/Upload/10_0032wwfhSBLA.doc

Discrimination Damages - It Wasn't (All) My Fault!

The Employment Appeal Tribunal (EAT) has confirmed that Employment Tribunals can reduce damages for psychiatric illness caused by discrimination if the Employer's actions were not the sole cause.

A previous case had proceeded on the unopposed assumption that this was possible so this if the first definitive ruling in the EAT on the issue.

Miss Thaine succeeded at Tribunal with 2 claims for Sex Discrimination . The employer had tolerated pornographic magazines and posters being displayed by her male colleagues and also the signing-in book being moved into the male changing rooms leading to her suffering sexist abuse when she went to retrieve it.

The Tribunal found that these had been a "material and effective cause" of her subsequent breakdown. They went on however to only award her 40% of the compensation they would otherwise have awarded her for this, on the basis that 60% of the reasons for her breakdown were other factors - including concerns over her mother's health, splitting up with her boyfriend and a history of depressive episodes.

She appealed stating that once the discrimination was found to be a material cause of her breakdown she should receive 100% compensation. The employer cross-appealed stating that the reduction should have been even larger.

The Employment Appeal Tribunal carried out a detailed review of the case law on this topic in the field of personal injury litigation and decided that on balance the Tribunal did have the power to do what it did, on the basis that it was unfair for the employer to be held responsible for the whole of the damage when they were only partly to blame for it.

No doubt this will now lead to Tribunals being asked to scrutinise claims for psychiatric injury in a lot more detail with Claimant's medical notes and personal histories being pored over in detail to look for evidence that there were other causes to the problem.

The simple advice is of course to make sure your male staff are not sitting around reading pornography and making sexist comments in the first place!

The case is reported at http://www.employmentappeals.gov.uk/Public/Upload/10_0144wwfhSBSM.doc

Tuesday, September 14, 2010

Unsuccessful Interviews - Disaster or Discrimination?

A survey for an online job search site has found evidence of some astonishing gaffes by job-seekers at interviews.

A somewhat difficult to believe 13% are said to have failed at interview by answering their mobile phone or sending texts in mid-interview.

Other major faux pas were criticising their current or previous employers, dressing inappropriately or (bizarrely) "providing too much personal information" - the mind boggles!

Anecdotes referred to one candidate keeping a crash helmet on throughout the entire interview, another making an international phone call the moment the interviewer left the room and a third using his fingers to retrieve the remains of a dunked biscuit from inside his hot drink.

Whilst it is (hopefully) obvious why those candidates did not get the job, if someone is unsuccessful without a clear reason they may allege that their race, sex, age, sexual orientation or disability was held against them. If there is no clear audit trail showing why the successful candidate was chosen employers leave themselves vulnerable to this sort of allegation - and the damages can be unlimited even though the Claimant has never worked for you!

Best practice is to have a clear and transparent process, asking each candidate the same non- discriminatory questions (i.e. not asking a woman whether she plans to have children) in the same order and having some objectively measureable means of selecting the successful candidate. Where feedback is requested it will help to avoid creating unnecessary suspicion if this is provided.

Disciplinary Procedures are not academic(al)

The Outer House of the Court of Session, the Scottish equivalent of the High Court, has found that Hamilton Academical FC wrongfully dismissed their assistant manager in 2008 when he was sacked a little over 2 months after being appointed.

John McCormack was appointed to assist the Manager following the club's promotion to the Scottish Premier League. He had a reputation in Scottish football as a "hard man."

Within a short time the Club had come to the conclusion that his managerial style was not to their liking. They were unhappy about him allegedly turning the air blue on the touchline during a pre-season tournament and there was also an allegation that he had reduced a player to tears. It was also alleged that he had made inappropriate comments to and stripped off for the showers in front of a female physiotherapist. On another occasion a chair had been pulled from under someone for a joke during a seminar being given to the players by a nutritionist.

Mr McCormack was confronted and dismissed without notice for gross misconduct.

The Court of Session ruled that if Mr McCormack's conduct as a whole was to be treated as gross misconduct then it was incumbent on the Club to have made clear what was expected of him. After his coaching style was questioned there was no repetition of the behaviour at the tournament. He had apologised to the physiotherapist if he had upset her and the incident had not been repeated. The prank with the chair was no more than that.

Bearing in mind he had been brought in as a "hard man", if they were not expecting him to behave in character then they should have told him this.

The case shows the importance of having a proper "paper trail" even in cases where the employee has less than 12 months' service and cannot bring an Unfair Dismissal claim. The case was worth pursuing here as the employee was on a fixed term contract and therefore his damages were likely to be a lot more substantial than the small amount payable for his notice period in a run of the mill wrongful dismissal claim.

Interestingly the Court found for the Club on the issue of the length of the fixed term contract and found that it was only for one year (in case Hamilton went down) and not the two years that Mr McCormack alleged. This shows the importance of ensuring that the important terms of a contract of employment are in writing, to avoid future disputes.

The case is reported at http://www.scotcourts.gov.uk/opinions/2010CSOH124.html

Thursday, September 02, 2010

Britain's Got Talent - But You Haven't Got a Case!

An Employment Tribunal in London has ruled that an unsuccessful applicant on "Britain's Got Talent" cannot bring proceedings for disability discrimination against the programme's producers Freemantle Media or Simon Cowell's television company Simco.

A Pre-Hearing Review decided that the Claim was brought well outside of the time limts and also that Simon Cowell was not in any event her employer.

Emma Czikai, 54, had alleged that she suffered disability discrimination because the Respondents did not do enough to support her and should not have allowed her audition to be broadcast after she had made them aware of her difficulties. She stated that she suffered from fibromyalgia and also spondylosis of the neck.

The case is a useful reminder that Employment Tribunal time limits are very strictly enforced. For some types of claim, such as Unfair Dismissal and Unlawful Deductions from Wages, the time limit can only be extended if it was "not reasonably practical" to present the claim in time, which is extremely difficult to prove.

In other cases, in particular those relating to discrimination, time can be extended where it is "just and equitable" to do so but even here the higher courts have made clear that any indulgence is the exception rather than the rule.

Although this case failed on its facts it is worth remembering that it is not only employees who can bring discrimination claims. Workers in certain other relationships are among the categories of people who can apply and unsuccessful applicants for jobs are entitled to claim - you could face an expensive damages bill from someone who never works for you! Interestingly the Claimant has said that the Tribunal's Written Reasons accepted that it could have been possible for Simon Cowell to be her employer and she felt this left the door ajar for future contestants.

It seems unlikely Miss Czikai will be auditioning for the programme again as she said she held Simon Cowell personally responsible for what she described as her "public humiliation."