Friday, December 30, 2011

Worklife/Balance - Is Your Email Really Necessary?

The BBC reports that Volkswagen has reached an agreement with Unions in Germany to stop sending emails to its employees outside of work time.

Blackberry servers will be set up so that emails stop 30 minutes after a shift ends and do not restart until 30 minutes before the next one begins.

One does wonder how effective this will be in allowing people to have uninterrupted "me time" if their Line Manager has their mobile phone number.

This follows on from another BBC report which suggested that only 34% of employees were not intending to check their work emails from home over Christmas.

Whilst modern technology does offer people the flexibility to work from home the "flip side" of this is that it can lead to a situation where the boundary between work life and home life is blurred or disappeared and management and clients/customers expect an employee to be available 24/7, 365 days a year.

If someone is expected to be available to deal with work outside of normal office hours this has potential to give rise to disputes over holiday entitlement, whether the 48-hour maximum working week is being exceeded and even whether someone's pay equates to an hourly rate below the National Minimum Wage. Being bombarded with work outside of normal hours could also lead to constructive dismissal or workplace stress claims.

There will of course be some jobs where people have to be contactable in emergencies (but even then there will probably be few cases where it needs to be the same person who is available all the time) but in most cases there is a lot to be said for ensuring that employees are not expected to check their emails at ungodly hours, or are even positively discouraged from doing so for the sake of their quality of life.

Wednesday, December 21, 2011

Britain has still Got Talent and you still haven't got a Case!!

Last September I reported on how a "Britain's Got Talent" contestant had failed to convince an Employment Tribunal that she should be allowed to bring a disability discrimination claim against the companies that run the competition, Simon Cowell and Amanda Holden.

The Claimant, Miss Czikai, alleged that reasonable adjustments should have been made to the audition process to accomodate her disability (although it was unclear why her disability should have affected her ability to sing) and that she had been harrassed as a result of clips of her being posted on "You Tube."

The Employment Appeal Tribunal has now heard and dismissed her appeal.

The EAT held that the appeal was bound to fail. Miss Czikai had clearly and unambiguously withdrawn one of her Claims, and there was no basis upon which she could try to reopen it.

The Claimant's Claims were brought more than 3 months after the date when the events occurred and were therefore out of time. The audition was clearly a one-off event and more than 3 months ago. The posting of the clips of the Claimant on "You Tube" was held, perhaps (with respect) slightly more controversially to be a one-off act rather than a "continuing act" and time therefore ran from when the clip was posted rather than not beginning to run until it was taken down (if ever.) One might have thought it was arguable that the posting of a clip on "You Tube" will have a continuing effect of (potentially) harassing the subject rather than being a one-off act like a remark made to someone's face which is never repeated.

None of the Respondents was acting in a capacity that made the Claimant as a contestant on the show an applicant for employment and as such the Claimant could not bring herself within the Disability Discrimination Act 1995 (which was the legislation applicable at the time.)

The Employment Judge had been entitled to find that the Respondents had not in any event been aware that the Claimant had a disability and required reasonable adjustments to be made to the audition process.

In respect of the harassment Claim arising out of the You Tube posting, even if this had not been out of time, there was no basis for a finding that this had been done for a reason related to the Claimant's disability.

Apart from that, she had a really good case!

It seems unlikely that this one will end up in the Court of Appeal, but you never know...

Friday, December 16, 2011

Administrations and TUPE - A Connection with the Unforeseen

The Court of Appeal has upheld the decisions of an Employment Tribunal and the Employment Appeal Tribunal that the Chief Executive of a company was automatically unfairly dismissed for a reason connected with a transfer of undertaking.

Under the Transfer of Undertaking (Protection of Employment) Regulations 2006, a dismissal for a reason "connected with" a transfer is, subject to a very limited exception, automatically unfair.

On 23rd May 2008 Ultralon Holdings Limited went into administration. The same day Mr Baillavone and 43 other employees were dismissed by the administrators. The company subsequently went into liquidation. On 25th June 2008 the business and assets of the company were sold to Spaceright Limited.

Mr Baillavone brought a claim for unfair dismissal against Spaceright. If he had been automatically unfairly dismissed for a reason connected with the transfer of the business to Spaceright then the liability would pass to Spaceright (who would of course in any event be more likely to be worth suing than Ultralon.)

Spaceright denied liability. They said that as a sale of the business to a particular puchaser had not been in mind at the time of the dismissals they could not be said to be for a reason connected with the transfer. The Court of Appeal agreed that both lower courts had been right to reject this argument. The reason for the dismissal was to save costs.

The Employment Tribunal had found that the reason why Mr Baillavone had been dismissed was that it was felt by the Administrators that any purchaser would either be a company that already had a Chief Executive or would be a new venture that would want to appoint a Chief Executive from within the ranks of its own directors." It was also clear that the Administrators had continued to trade with the active intention of seeking to sell the business.

The Court of Appeal said that the Tribunal had to look at whether there had been both a dismissal and a transfer, because otherwise the relevant Regulation did not come into play. If there had been, then the Tribunal had to decide whether they were connected. As a matter of common sense events could be connected even if the occurence of one could not be foreseen at the time of the other. The Administrators here had achieved within 4 weeks what they had set out to achieve.

Some press comment has suggested that this will discourage Administrators from trying to save companies but, with respect to the Court of Appeal, the decision seems pretty clearly right. Here there was clear evidence that the expectation had been that there would be a transfer and that this was the reason why the Claimant was surplus to requirements. It does not by any stretch of the imagination mean that dismissals to genuinely save costs will always be unfair.

What it may do is encourage Administrators to ensure that they have applied thought to who should be dismissed and why and discourage blanket decisions to dismiss all or large numbers of employees.

Thursday, December 15, 2011

Emails - Be Careful who you CC in!

The Employment Appeal Tribunal has rejected an employer's appeal against an Employment Tribunal finding that an employee who resigned after inadvertently being copied into an email critical of her was constructively dismissed.

Jane Aspden was "UK Leader" for Hardie Grant, a publishing company.

In March 2010 the CEO of the parent company emailed the MD of a company with whom they had been planning to enter into a joint venture to inform him that they would not be going ahead. The email said, amongst other things:-

" The process has also led me to really question my own UK leader - but that is my problem. She is a really safe pair of hands, but we need an easier, more composed leadership, which we’ll get on to soonest. Obviously why this note is confidential.”

Very unfortunately indeed, forgetting that this paragraph was in the email the CEO forwarded a copy of it to Ms Aspden a few days later. The next day she spoke to him and said that she would not need to discuss the budget with him as clearly she was not going to be working there in 12 months' time. The CEO reassured her that he had no plans to dispense with her, but about a week later she resigned.

She claimed that she had been constructively dismissed on the basis that the email amounted to a breach of the implied term of mutual trust and confidence. The Employment Tribunal agreed and awarded her damages of more than £85,000.00.

Hardie Grant appealed to the EAT, who upheld the finding of unfair dismissal. The legal test was whether looked at objectively (regardless of the CEO's actual intentions) the email was likely to have the effect of destroying or seriously damaging trust and confidence. The Employment Tribunal had been entitled to find that it did. The EAT also reminded itself that the case law establishes that once there has been a breach it cannot be cured by the employer, so the CEO's subsequent reassurances did not assist the employer.

The one consolation for Hardie Grant was that the EAT found that Ms Aspden's compensatory award should be reduced to the (then) maximum amount then awardable in an "ordinary" Unfair Dismissal case of £65,300.00. The Tribunal had grossed up the balance over the tax-free threshold of £30,000.00 to avoid the Claimant in effect having tax deducted twice, but whilst this is permissible the statutory "cap" still has to be applied.

Even so, it was a very expensive mistake for Hardie Grant, especially when one considers the unrecoverable legal costs of the proceedings in the Employment Tribunal and the Appeal.

There can be a temptation to fire off emails in a conversational tone without remembering that these can create a permanent record, and to copy in all and sundry without thinking about how they will react. This case is a lesson to employers (and for that matter employees, whose off the cuff comments can leave them open to disciplinary action) to think before pressing "send" or "CC."

Tuesday, December 06, 2011

References - Not Worth The Paper They Are Written On?

Cross-Bench peer Baroness Deech has complained that the Data Protection Act has made University references worthless. She claimed (although she did not produce anything other than anecdotal evidence) that referees felt unable to give honest accounts of candidates because they can be seen by the subject of the reference using the Act.

She suggested that this problem also applied to references from former employers. Certainly during a radio debate on the topic yesterday I heard one employer expressing the view that they could not give someone a bad reference because this could lead to a claim for Unfair Dismissal.

That last comment is clearly wrong since the giving of a reference is not in any sense a dismissal, but the trend does seem to be away from employers putting their necks on the line by giving anything other than basic factual information out.

There is an urban myth that you cannot give someone a bad reference. This is not true. A reference which is bad can be given provided that a reasonable employer looking at the reference as a whole would consider it to be fair and accurate.

That being said, employers can find themselves "between a rock and a hard place." Say negative things and there might be a claim from an employee who loses their dream job as a result. Say unduly positive things (e.g. an untrue glowing reference for honesty)and there might be a claim from an employer who takes on someone you have sacked for theft and suffers loss when the employee makes off with the contents of the till. Even where a reference is given in confidence it must be assumed that the employee will be able to make a Subject Access Request under the Data Protection Act and obtain a copy.

What about saying nothing at all? Here you need to have a consistent policy. Doing one thing for one person and not for another could lead to discrimination claims. You also have to be wary of what you say, or choosing not to give a reference, when someone has brought a Claim against you or made allegations in connection with their employment - this could lead to victimisation or whistleblowing claims - and potentially unlimited damages.

Saying something off the record over the telephone? Fine, but if it comes out later this could lead to a Claim, and your duty of care extends to other statements you make about an employee and not just to references.

Small wonder many employers choose just to give an anaemic factual reference hedged about with disclaimers.

To summarise:-

  • If you choose to give references take care to ensure the contents are accurate and that you have documentary evidence that will allow you to justify any comments made if they are challenged

  • Have a clear policy within your organisation as to whether you give references, who can give those references and what they will consist of

  • Apply your policy consistently

Friday, December 02, 2011

Saline Contamination Allegations Nurse Sacked from Job

The BBC reports today that the Stockport nurse Rebecca Leighton, who spent 6 weeks on remand in connection with allegations of tampering with saline drips at Stepping Hill Hospital, has been sacked from her job.

The criminal charges, which were emphatically denied and were subsequently dropped, arose following a Police investigation into a number of allegedly suspicious deaths at the Hospital. Miss Leighton was never charged with actually causing the death of a patient.

The Nursing and Midwifery Council, who would have had the power to prevent her from working as a nurse, lifted a temporary ban on her but her employment has now been terminated by her employer.

The precise details of the reason for her dismissal have not been disclosed and presumably the decision will be subject to the right of appeal.

This is a useful reminder that the legal test for a fair misconduct dismissal is not whether the employee is guilty of the misconduct in question, and certainly not whether guilt has been proved beyond reasonable doubt. It is simply whether the employer genuinely believed in the employee's guilt and had reasonable grounds for that belief after carrying out a reasonable investigation. If this is the case then a dismissal will be fair provided that dismissal is "within the range of reasonable responses" to that misconduct, taking into account the seriousness of the allegation and any mitigating factors such as previous record and length of service.

Thursday, December 01, 2011

Metropolitan Police Pay The Price of Aggro!

The Employment Appeal Tribunal (EAT) has held that an Employment Tribunal made an error when it awarded a whistleblowing Police Officer £20,000.00 in aggravated damages.

DS Shaw complained to a superior officer that another colleague had obtained advanced notification of the questions to be asked at an interview for a promotion that the colleague had eventually obtained. This allegation transpired to be true. Despite this the colleague was still allowed to take the promotion and when everything came to light all that happened was that he was reinterviewed using different questions, and still got the job.

The colleague and the superior officer colluded to bring about a situation where DS Shaw was suspended and given notice of disciplinary proceedings for allegedly setting up a private business without permission. An inaccurate note was made on the computer by another senior officer months after the event falsely stating that DS Shaw's application for permission had been refused.

Ultimately the disciplinary action was withdrawn and DS Shaw remained in his employment, suffering no financial loss. He nevertheless claimed at the Employment Tribunal on the basis that the action against him was an unlawful detriment because of whistleblowing. (He also separately brought a claim for personal injury but we need not worry about that here.)

Not surprisingly the Claim in the Employment Tribunal succeeded. The Tribunal was highly critical of the (on the face of it appalling) conduct of his superiors. He was awarded £37,000.00, consisting of £17,000.00 for hurt feelings and £20,000.00 by way of aggravated damages.

The Metropolitan Police appealed to the EAT.

The EAT confirmed that damages for whistleblowers should be calculated in the same way as discrimination cases. This means applying the Court of Appeal's "Vento guidelines" to decide on the damages for hurt feelings. They reminded themselves that aggravated damages are not, like exemplary damages, to punish the Respondent but part of the compensation and need to reflect the aggravating factors causing injury to the Claimant.

On that basis the award of aggravated damages was excessive and was out of line with the awards in other cases in the past - there was only one where an award of £20,000.00 had survived after avenues of appeal had been exhausted.

Taking all of the relevant factors into account they decided that the right total award was £30,000.00 consisting of £22,500.00 for hurt feelings (i.e. an increase) and a reduced award of aggravated damages of £7,500.00.

The EAT accepted that it did not have the authority to change the well-entrenched practice of treating these as separate heads of damages, but did say that there would be a lot to be said for simply making one award for hurt feelings which included any aggravating factors. As a halfway house Tribunals should be encouraged to treat them both as sub-headings of "injury to feelings" in order to remind themselves that aggravated damages are not a punishment to the employer.

There was mention of the fact that the Claimant had spent £20,000.00 on legal costs to get to this stage and whilst the EAT evidently had sympathy with him on this they (with respect quite correctly) held that this could not influence their decision. The Rules did not provide for him to get his costs back from the Met in these circumstances and it would not have been right to increase his damages as a back door way of getting around that fact.

The case is reported here.

Wednesday, November 23, 2011

Employment Law It Is A Changing (Again)

The Government has announced its response to the consultation on resolving workplace disputes. The headlines are:-

Steps will be taken to encourage more mediation

All claims will have to be notified to ACAS before an Employment Tribunal claim is brought, and parties will be given the option (but not forced to) of trying to conciliate the Claim first. There will be some changes to the rules about time limits as a result.

The qualifying period of continuous service for an Unfair Dismissal claim will be raised to 2 years from the current 1 year

There will be a fundamental review of the Employment Tribunal Rules of Procedure

The state will no longer pay witness expenses, and these will potentially be recoverable from the losing party

Tribunals will have the power to impose penalties (i.e. fines) on employers who breach employment rights, in addition to them having to pay the employee compensation

The maximum deposit that can be ordered will double to £1000 and the maximum costs award that can be made without a County Court assessment will double to £20,000

Steps will be taken to simplify the Compromise Agreement process and they will be renamed Settlement Agreements

There will be a presumption that Witness Statements will be taken as read rather than read aloud

More cases will be heard by Judge alone, especially in the Employment Appeal Tribunal.

A separate consultation is to follow about fees for bringing a case in the Employment Tribunal but it is implicit in the response to this consultation that the Government still fully intends to proceed with that plan.

Some of these are sensible time and costs saving measure but since most parties try to resolve matters before litigation if they can, and since ACAS can always assist if asked, it is hard to see that the conciliation rules will make much difference. Similarly increasing the qualifying period will just encourage people to claim for discrimination, whistleblowing and the like where there is no such requirement - and which tend to be the most complex and expensive claims.
At the same time as publishing the response to the consultation, Business Secretary Vince Cable has also announced a number of other areas where there may be reform. These are:-

Considering whether firms with less than 10 employees will be exempt from being sued for Unfair Dismissal if they dismiss the employee with compensation

Consulting on whether employers should be allowed to have "protected conversations" with employees which would allow them to have frank discussions about poor performance without fear that they could be used in evidence at a Tribunal later

Considering whether the mandatory 90 day consultation period for 100 or more redundancies should be reduced to 30 days

In a previous blogpost I commented on the practical problems with the first of these possible ideas. The logic behind giving people less rights if they work for a small employer is unclear - surely this will make it less easy for them to attract staff? And won't it discourage employers from expanding their business if their employees will have more rights once there are 11 of them?

The concept of protected conversations is also likely to be a minefield. Will it be "anything goes"? Presumably not. Employment Tribunals have already shown a willingness to ignore the "without prejudice" label if it is attached to a conversation which is obviously discriminatory or wrong. And if someone is sacked after a series of protected conversations, how will the employer prove that they acted reasonably if they cannot give evidence as to the warnings the employee was given?

It remains to be seen how many of these proposals/ideas actually make it into law.

The backdrop to this is a view that it is too easy to take an employer to Tribunal and that they are swamped with spurious claims - a view for which there is not in fact much evidence.

Monday, November 21, 2011

Facebook Comments On Trial - Be Careful What You Say

Two recent Employment Tribunal cases have shone a light onto the problems which can arise when employees make comments about work on Facebook or other social networking sites.

The outcome of the 2 cases was very different.

Mr Crisp worked for Apple. He made some critical comments about their products on Facebook. He had "private" settings so that only his "friends" could see them. One of his "friends" was a colleague, and printed off the comments and showed them to the boss (which rather suggests that he was a "friend" in the Facebook world and not a "Friend" in the real world!)

As a result Mr Crisp was disciplined, and dismissed for gross misconduct.

At the Employment Tribunal he tried to argue that the comments were private and therefore protected by his rights under the European Convention on Human Rights to privacy and freedom of expression. It was held that by definition nothing on a social networking site was private, since any of his friends could copy the comments and publicise them more widely. This fits in with previous case law about postings by employees on websites about their private sexual activities. The outcome might not be the same in the context of a private conversation with a friend in the pub which the boss sitting around the corner happened to hear.

The Tribunal's decision was heavily influenced by the fact that Apple had a clear social media policy and that Mr Crisp had been given clear instructions whilst training that derogatory comments about the company's products were strictly forbidden.

Does this mean that the more a company cares about its image/the more it has a reputation to protect the more likely a dismissal will be to be fair? Quite possibly.

In the other case Mrs Whitham worked for a VW dealership. On Facebook she commented "I think I work in a nursery and I do not mean working with plants." There was a further comment about "not letting the bastards grind you down." She was disciplined for making a negative comment on Facebook and dismissed.

The decision maker stated that he felt that the comments could put at risk the company's relationship with VW. He concluded that the "bastards" comment was not about work. He considered more serious the fact that she had allegedly breached the terms of her suspension by telling third parties about it. Dismissal was felt to be appropriate despite Mrs Whitham's expressions of contrition.

She appealed and the person who heard her appeal initially seems to have taken the view that dismissal had been unduly harsh. In due course however she rejected the appeal, having amongst other things decided that the "bastards" comment was about work.

Mrs Whitham won her Unfair Dismissal claim at the Employment Tribunal. The Tribunal was very critical of the employer's failure to understand its own powers under its disciplinary procedure and the failure to explain how demotion had gone from being appropriate one day to being inadequate by the following day. In any event dismissal was too harsh. There was strong mitigation, highly unlikely to be any negative repercussions for the company and an immediate apology.

The message for employees of the 2 cases is that you comment on Facebook about your employer at your peril. It must be assumed that any comment you make is to the world at large and will be judged as such. The more steps your employer takes to protect its reputation, and the more closely your comments can be seen as being an attack on that reputation, the more likely your dismissal is to be justified.

The message for employers is to have a clear policy in place and to make sure you understand your own procedures.

Friday, November 11, 2011

The Tevez Saga - an employment law slant

Having already been fined 2 weeks' wages after being found by an internal disciplinary hearing to have refused to warm up when on the bench in Munich, Manchester City footballer Carlos Tevez has now allegedly returned to Argentina despite specifically being refused leave by the Club.

It would appear that the torment of living in a city which (he is alleged on one occasion to have said) "only has two decent restautants" was not assauged by earning millions of pounds a year for doing a job many people would give their eye teeth to have.

In the real world, away from the parallel universe that is the Premiership, an employee who refused a reasonable management instruction (e.g. to get ready to come on and play football when you are in the squad for a match) or had a period of unauthorised absence when they had specifically been told that they could not would almost certainly be able to be fairly dismissed without notice. The case law does however state that an employer must hold a disciplinary hearing on the employee's return before dismissing them - they cannot be treated as having dismissed themselves if they absent themself from work.

Of course Manchester City will not want to terminate Senor Tevez's contract without notice since they will want to cash in on his transfer value. It has been suggested that it would be open to them to retain his registration (preventing him from joining another club) and claim compensation from him for the difference between his current transfer value and the value that City would have been able to realise for him had he not behaved in this way. Certainly if the allegations are true then Tevez would appear to be in potential breach of his contractual obligations to City and if they could show that this had caused them damage then in principle it ought to be possible for compensation to be claimed.

On the other hand it is also suggested that if he is left to "rot in the reserves" or "train with the kids" this could give him the right under FIFA rules to walk away from his contract in the summer on the basis of a "sporting just cause", namely not being given adequate playing time. This might then raise interesting arguments as to whether by his conduct he had brought it on himself (and perhaps whether someone who it is alleged refused to play can complain about being deprived of the right to play!)

This one is likely to run and run...

Wednesday, October 26, 2011

Government Urged to Abolish Unfair Dismissal for Unproductive Workers!

According to today's Daily Telegraph a leaked Downing Street report is encouraging the Government to abolish the right for unproductive workers to claim Unfair Dismissal.

The report has been prepared by Adrian Beecroft, a venture capitalist. He claims that employment law is biased against employers and stifles productivity and expanstion.

The suggestion is that poor performing employees are allowed to "coast along" and that firms are nervous about expanding in case they take on "unknown quantities."

He proposes replacing the right to claim Unfair Dismissal with "Compensated No Fault Dismissal" where the employee would receive the equivalent of a redundancy payment and notice pay. He does concede that it would be a downside to this that it would allow employers to sack people they do not like.

The Government has indicated that this proposal is unlikely to see the light of day. It is not hard to see why. Employers already have 12 months and may soon have 2 years within which to judge whether someone is up to the job before the employee acquires the right to claim Unfair Dismissal.

If employers have a genuine reason for dismissing someone then requiring them to pay an additional payment over and above the existing entitlement to notice will only increase costs rather than reducing them, and may lead to attempts to dismiss people without pay and notice for misconduct when it is really a capability issue.

Conversely if someone is dismissed without a good reason why should they be limited to the payments he has in mind if their loss will be substantially more?

There is little or no evidence that the law on Unfair Dismissal is biased in favour of employees. The statutory tests are generous to employers, which is presumably why such a low percentage of Unfair Dismissal claims succeed.

Since presumably the right to claim Unfair Dismissal in cases of, for example, whistleblowing and pregnancy would not be abolished, this proposal will simply lead to even more Claimants alleging that the "real" reason for their dismissal was one of the grounds that remains outlawed.

In other words, back to the drawing board.

Friday, October 14, 2011

I didn't mean it - tough!

The Court of Appeal has confirmed that an employer who terminated an employee's contract by mistake was not entitled to rescind their decision.

Ms Willoughby was employed by CF Capital. There had been some discussions about her becoming self-employed. After thinking about it she decided not to go ahead. In the meantime however her employer wrote to her terminating her employment with effect from 31st December with a view to her self-employment starting on 1st January.

Ms Willoughby took advice and replied that she did not want to become self-employed and considered herself to have been dismissed. CF Capital thereupon indicated that it had all been a misunderstanding, that they did not want to lose her and that if she did not want to become self employed then the relationship would continue as before.

Ms Willoughby did not return to work. CF Capital treated her as having resigned. She claimed unfair and wrongful dismissal.

The Employment Tribunal dismissed her Claims. It reviewed the case law on the "special circumstances" where otherwise unambiguous words of dismissal or resignation which are quickly retracted will not have the normal effect of terminating the employment relationship. It decided that as there had been a genuine misunderstanding and the employer had withdrawn the dismissal as soon as it knew about it there had been no dismissal, and therefore nothing which could be unfair or wrongful.

The Employment Appeal Tribunal disagreed. It said that the employer had, albeit because of a mistake, clearly intended to terminate the employment and once that had happened the employer could not retreat from that position without the employee's agreement.

The Court of Appeal rejected CF Capital's appeal against the EAT's decision. The cases about "special circumstances" apply where something is said in the heat of the moment which does not reflect the speaker's true intentions, or occasionally in the case of an "immature" employee who cannot have been taken to have made a reasoned decision. Where someone says "get out of here, I never want to see you again" during a heated row about a pay rise and then calls the employee straight back in and apologises then this will not be held to be a dismissal. Where however CF Capital had applied their mind to the matter and had chosen to write a letter of dismissal there was no scope for the application of the "special circumstances" rule.

It will very often be the case that an employee thinks the employer is making a mistake by sacking them but if in every case where there was a misunderstanding of the underlying facts it could be said that there was no dismissal this would drive a coach and horses through the contractual underpinning of dismissal law and would lead to uncertainty.

With respect, the Court of Appeal's decision must be right. The true test must be whether in the circumstances the speaker/writer intended to dismiss or resign, and that was clearly the intention here.

It remains to be seen whether this will be a phyrric victory for the employee as the Tribunal could still find that it was unreasonable failure on her part to mitigate her loss by not accepting an offer of re-employment on the same terms, but we shall have to see what happens at remedy stage (assuming a private agreement is not now reached.)

The case is reported here.

Wednesday, September 14, 2011

Changing Terms - Another Victory for Employers

Following on from the decision in the Garside and Laycock case the Employment Appeal Tribunal has now upheld (most of) another Judgment in favour employers over the right to change terms of employment.

TNT had for many years paid an "end of sort" bonus to certain of its employees. In 2005 this had been discontinued for new starters. By 2009 470 employees were still entitled to receive this bonus. TNT decided to scrap it and entered into negotiations with the Union.

A compromise offer was made and rejected by the Union members after a ballot. TNT then gave each employee contractual notice to terminate their existing contract and offered them re-engagement on the new less generous terms. By giving contractual notice they avoided constructive dismissal claims based on breach of contract.

All the employees accepted the new terms under protest but reserved their right to claim that the termination of their previous contracts was unfair dismissal.

All but 183 of these employees then settled their claims in return for a lump sum buying out their rights. The other 183 continued to pursue Tribunal claims. 4 were heard at Birmingham Employment Tribunal as test cases. Their claims were rejected and they appealed to the EAT.

The EAT ordered the Tribunal to give more details on their reasoning in relation to 2 of the employees, who were in a different category to the other 2 claimants, and that appeal continues. They did however reject the majority of the appeal and agreed that the dismissals were fair.

The correct test had been applied. The employer had a sound and non-trivial business reason for making the change. The difference in bonus arrangements between pre- and post 2005 staff doing the same job was divisive and the company was also struggling financially from 2008 onwards. Whilst the employees acted reasonably in rejecting the changes, the legal test was whether the employer acted reasonably, and it was held that they had - proper consultation had taken place.

The EAT rejected the argument that the employer was unreasonable not to offer the "buyout" terms to those who had turned them down in negotiations (the suggestion being that if they could afford it for some people then it was unreasonable not to give it to everyone.) They found (rightly, it is respectfully submitted) that such an approach would deter employers from entering into negotiations with staff since it would make any attempt to offer an additional "carrot" to avoid having to impose something meaningless.

Interestingly at appeal stage no point was taken over the Tribunal's decision that the fact that in 2005 the employees who kept their bonus were told it was being "red-circled" did not make it unfair to remove it later. It had not been a promise of no change in the contractual terms for life, simply a recognition that they could not be changed under that specific contract, which could be ended by proper notice and a new one given. It might have been thought that this finding was a little generous to employers.

The advice to employers remains to think carefully before imposing changes to terms and conditions. Do it by agreement wherever possible. Where it is not,consider whether the existing contract permits it and if not give contractual notice after proper consultation and having carefully recorded the sound business reasons for going ahead.

The case is reported here.

Tuesday, September 06, 2011

Equality Laws Are Not "Rubbish"!

A Hospital Trust in Liverpool has begun an investigation into how a job advertisement appeared ending with the line, and I quote "Usual rubbish about equal opportunities employer etc."

The advertisement on the Royal Liverpool and Broadgreen University Hospital's website for a trainee anaesthetist was unobjectionable up until that point. Now the Trust has put out a statement stressing that this comment does not reflect its view of equality issues and highlighting that it has been accredited by the gay rights organisation Stonewall as a diversity champion.

It would appear that somewhere along the line someone took the instruction to "include the usual rubbish about being an equal opportunities employer" a little too literally!

No employer should of course give the impression that they believe discrimination laws are rubbish (not least as this will sink any attempt to defend a claim by stating that all reasonable steps have been taken to prevent employees from discriminating.)

That being said employers seem to be competing with each other as to the amount of information (and logos of different equality organisations) which they now include in job advertisements to show their commitment to diversity.

Is this growing trend really necessary? By definition, all employers are "equal opportunity employers" (apart from where the very limited exceptions like there being a genuine occupational requirement for someone of a particular age,race,sex, etc apply) because the law makes them liable to penalties if they are not.

In the future perhaps we will see other paragraphs in job advertisements confirming that employers will comply with the law of the land, which one might otherwise take as read. "We are committed to a policy of not murdering our staff while they are at work."

The BBC report is here.

Friday, September 02, 2011

Employment Tribunal Statistics - Its Not All Bad News!

The Employment Tribunal statistics for the year to 31st March 2011 have been published by the Ministry of Justice and HM Courts & Tribunal Service.

They go some way towards dampening down employers' fears of a "compensation culture" or that Tribunals/employment law rights are slanted towards employees.

The total number of Claim Forms accepted by the Employment Tribunals was down by 8% to 218,000. These Claims Forms contained a total of 382,400 claims under different jurisidictions at an average of 1.75 claims per Claim Form ( for example a single Claim Form lodged by an employee might include claims for both Unfair Dismissal and unpaid wages.)

If the overall figure still looks high it is only fair to point out that this is distorted by ongoing mass litigation in respect of working time in the airline industry, with Claims in that sector being re-presented every 3 months and making up 30% of the overall total of 382,400.

Whilst employees tend to win contested cases about wages (many of which will be undefended "can't pay" cases involving insolvent employers), those cases that go to a hearing on the more substantial types of claim, like Unfair Dismissal and Discrimination, are more likely to go the employer's way.

Only 8% of contested Unfair Dismissal claims succeed at trial and for Discrimination claims the success rate at trial is between 2% and 3%. A Race Discrimination trial is 5 times more likely to be won by the employer than the employee.

51% of Claims are either withdrawn or settled, which may reflect employers paying off people to avoid the costs of trial but might also reflect people withdrawing Claims once they realise they will not win. The statistics do not tell us the average cost to employers of settling out of court or whether settlements are from commercial or legal motives.

Fears of astronomical damages awards are also in most cases unfounded. The average for Unfair Dismissal is £8,294.00. Only 51 out of 2,608 cases attracted an award of more than £50,000.00 - although the highest award was £181,754.00.

The average discrimination awards are around £12,000.00 depending on the type of discrimination, although interestingly the average for Age Discrimination was £30,000.00 (albeit in the context of only 26 cases - 2% - succeeding at trial.)

The highest Tribunal award of the year was £289,167.00 for a Sex Discrimination case.

Although very few employers were able to obtain awards of costs against unsuccessful Claimants, the number of costs orders in favour of Respondents was still, at 355, about 3 times the number made in favour of Claimants. The average award of costs was £2,380.00, but the highest was £83,000.00, which shows that Tribunals will "bear their teeth" where the conduct of the Claimant justifies it.

The best advice is of course to have appropriate policies and procedures in place and stay out of the Tribunal in the first place!

Tuesday, August 23, 2011

Unfair Dismissal - Not Everyone Deserves The Sack

An Employment Tribunal in Scotland has awarded a "business billing adviser" who was sacked by BT £15,000 in compensation after finding his dismissal for gross misconduct unfair.

Colin Shepherd had a spotless disciplinary record during 22 years service with the company. Nevertheless he was dismissed for a "first offence" of bringing the company into serious disrepute after getting into an argument with a customer on the telephone.

Although he accepted that he had not handled the call in the best way he argued that it was unfair to dismiss him for an out of character incident and that BT had failed to take into account that he was suffering from depression after the sudden death of his father a few months earlier.

The Employment Tribunal agreed that no reasonable employer would have dismissed the Claimant.

The legal test of whether a dismissal for misconduct is fair (once it has been established that the employer genuinely believed on reasonable grounds that the employee was guilty, having conducted a fair investigation) is whether "dismissal is within the range of reasonable responses." It is not for the Tribunal to decide whether they agree with the decision if it was one a reasonable employer could take.

Taking two extremes, any employer is likely to dismiss someone for stealing. No employer will dismiss someone for saying hello to their boss in the morning (unless perhaps they work in a Trappist monastery.) Between those two ends of the spectrum will be cases where employers could reasonably be either strict or lenient, and it is here that the Tribunal is not entitled to second guess the employer's judgement.

Case law indicates that length of service and previous disciplinary record are both factors that any reasonable employer will take into account when making their decision.

The case is a useful reminder that although the "range of reasonable responses" test does allow the employer a fair degree of latitude it does not mean that "anything goes" and there will still be cases where dismissal is an over-reaction. Any employer considering dismissal, especially for a first offence after a long period of service, is well advised to take a deep breath, count to 10 and then see whether they still feel that the punishment fits the crime.

There is a report on the case here.

Friday, August 12, 2011

Its Not What You Come to Work For!

A German group has called for kissing to be banned in the workplace.

The Knigge Society (whose name comes from a German word for good manners) campaigns on matters of etiquette. They have in the past expressed opinions on topics such as how to end a relationship by text message (is that ever acceptable?)

They say they have received emails from workers concerned about the practice of greeting colleagues and business contacts with a kiss on the cheek. The suggestion is that this is un-German behaviour and that it would be safest to limit onesself to a handshake.

This could have some interesting consequences if a similar thing happened in the UK.

Under UK law, unwanted conduct related to sex which has the effect of violating a person's dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for them amounts to unlawful sex discrimination by way of harassment.

Whilst recent case law stresses that this means serious things rather than petty slights, and a one-off unwanted peck on the cheek would be unlikely to lead to any consequences, someone who persisted in greeting a colleague in this manner when it had been made clear by the recipient that they did not like it could find themselves in trouble (and by extension their employer in trouble unless the latter had taken all reasonable steps to prevent the discrimination.)

And what about someone from a Mediterranean country who complains that being banned from greeting someone in this way is discriminating against them? If this is how someone from that culture is used to greeting people then a ban could (possibly) be argued to put them at a disadvantage compared to people from a North European/Anglo-Saxon background where a handshake is the order of the day. If so then it would come down to whether a ban on the practice was a proportionate means of meeting a legitimate aim (presumably the legitimate aim of avoiding giving offence to customers and colleagues.)
The BBC report is here.

Tuesday, August 09, 2011

Employment Law Implications of Riots

London and a number of other English cities have been hit by a wave of riots in the last few days.

This may have employment law implications both for the victims and the perpetrators (or at least those amongst the rioters who do not form part of the unemployed "underclass" as the tabloids would describe them.)

If you lose your job, or your business, because the premises are burned down then this may well amount to the "frustration" of the contract of employment. This arises where as a result of an unexpected event outside of the control of the parties the performance of a contract becomes impossible. The problem from an employee's point of view is that frustration brings the contract to an end without it being termination by the employer. This means there is no right to notice, let alone notice pay (although they will be entitled to statutory redundancy pay, which can be recovered from the Government if the employer is unable to pay.)

Because of the drastic consequences of frustration for the employment contract Courts and Tribunals can be reluctant to find that it has arisen. Factors that would be taken into account would be whether the business has permanently closed or whether the contract can be performed from other premises.

A slightly different issue would be what happens if someone cannot attend work for a more limited period because of rioting. This might include a situation where they are sent home because the Police "lock down" an area. Is the employee entitled to be paid?

This would depend on the employee's contract, but in most cases there is unlikely to be an express written term covering this eventuality. As such one has to look at the implied, unwritten, terms. An employee who is "ready, willing and able" to work is usually entitled to be paid. If the employer sends them home because of a riot then the employee will normally be entitled to be paid. If the employee chooses to go home, or cannot get to work because there is no public transport, then they will normally not be entitled to be paid.

Turning to perpetrators, the question here will be whether their employment can be terminated as a result of them being convicted or accused of an offence outside of work. If someone is sentenced to a term of imprisonment then depending upon the length of the sentence this might frustrate the contract (see above.) If it does not, then the guidelines indicate that conviction for an offence outside of work will not automatically lead to a fair dismissal.

The question will be whether the offence means that they are not suitable for their employment any more. Someone convicted of a minor public order offence could not necessarily be fairly dismissed if they work as, say, a shelf stacker in a supermarket. Arguably a teacher of an inner city class of teenagers who was convicted of any involvement at all might be at greater risk. Another consideration is whether it reflects on the employer's reputation. A postman looting seen pushing and shoving a Police line whilst wearing a Royal Mail top might be leaving himself more exposed than someone whose attire does not give the public any idea who they work for.

Thursday, July 21, 2011

Age Discrimination Must Be Taken Seriously!

The Employment Appeal Tribunal (EAT) has upheld a controversial Employment Tribunal finding of unfair dismiss in an age discrimination case where the employer rejected a request to work beyond retirement age.

Mr Ayodele was approaching retirement age and asked his employer, Compass Group plc, to allow him to continue to work beyond 65. The Employment Equality (Age) Regulations 2006 provide for a procedure which the parties have to follow in these circumstances.

If the employee is dismissed following a failure by the employer to follow the statutory procedure will mean that the dismissal is unfair.

The procedure requires the employer to meet with the employee and consider the request and to give the employee a right of appeal if they are unhappy with the decision. The appeal must then be considered at a further meeting after which the decision is final.

The legislation does not require the employer to give a reason for rejection of the request.

Compass Group had given Mr Ayodele the necessary written notice informing him of his rights and had allowed him to put his case at both an initial meeting and at an appeal. They rejected his request and retired him at 65.

Mr Ayodele brought a claim in the Employment Tribunal alleging unfair dismissal and age discrimination. On the face of it, the claims did not look promising - after all, the employer appeared to have done all that it was required to do under the statutory procedure.

However the evidence before the Tribunal showed that in fact the Respondent's managers who considered the request considered themselves to be bound by the company policy to refuse all such applications. The Tribunal took the view that for the Respondent to have complied with its obligation to consider the request it had to be properly looked at with an open mind and with there being some possibility of it affecting the outcome.

They therefore found the dismissal unfair. The age discrimination claimed failed because they found that retirement was the reason for dismissal.

The decision was controversial because employers had always thought that provided they met with the employee they could refuse a request without having to give a reason. The legislation does not require the employer to justify a refusal or use words like "consider in good faith." Some commentators therefore felt that the Tribunal was reading matters into the Regulations which were not there.

Compass appealed to the EAT who disagreed with the critics of the decision and upheld the original Judgment.

They said a duty to "consider" something connoted an obligation to do so in good faith, such that a blanket rule of refusing to contemplate any exception was unfair.

The practical effect of this Judgment may be somewhat limited with the forthcoming demise of the default retirement age but any employer who between now and the early part of October when the concept of forced retirement will disappear (the exact date is currently a "moot point" which I shall not go into here) would be well advised to not reject a request to work beyond 65 without at least appearing to consider the alternative and giving a reason so as to show that the request has not been rejected out of hand.

Bearing in mind that Mr Ayodele was awarded nearly £16,000 in lost earnings Compass Group learned an expensive lesson (they unsuccessfully appealed against the figure.) Make sure your business does not do likewise!

The case is reported here.

Tuesday, July 05, 2011

Pay Cuts - Not Always Unfair

The Employment Appeal Tribunal (EAT) has ruled that an Employment Tribunal in Manchester was wrong to find that a Company unfairly dismissed an employee who refused to accept a 5% pay cut.

In 2009 Garside and Laycock, a building and maintenance service company, were experiencing tough financial times. They proposed a pay reduction of 5% to all employees. All but 2 of the employees agreed (apart from 2 others who were dismissed for unrelated gross misconduct anyway.)

Mr Booth was one of the exceptions. After a number of meetings and after various compromise proposals were rejected he was dismissed with effect from Christmas Day 2009 after 7 years' service.

He claimed unfair dismissal.

The Tribunal found that his dismissal was for "some other substantial reason" which is one of the potentially fair reasons for dismissal permitted by the rules about Unfair Dismissal in the Employment Rights Act 1996 - this is a category which covers cases where there is not, for example, a redundancy or misconduct but there is a potentially good reason for dismissal.

Once the employer has established a potentially fair reason the Tribunal then has to decide whether the dismissal was fair or unfair in substance "having regard to equity and the substantial merits of the case."

This Tribunal decided that Mr Booth's dismissal was unfair. It held that a previous case (Catamaran Cruisers Limited v Williams and Others) required them to consider whether the employer's situation was so dire that they had no choice but to make the pay cut and concluded that the employer had not shown that its position was sufficiently desperate.

The Tribunal also criticised the consultation process and the voting system.

The EAT held that the Tribunal's decision could not stand. Catamaran Cruisers did not require the employer to show that it was desperate - all they had to show was a sound good business reason as opposed to imposing a pay cut on a whim.

The Tribunal had also erred by focusing on whether it was reasonable of Mr Booth to reject the pay cut when it should have focused on whether the Employer acted reasonably by deciding to impose the pay cut. Whilst a reasonable employer may well have to consider the effect on the employee in order for a dismissal to be fair, it is not the sole or necessarily the paramount consideration.

The appeal was therefore allowed. The EAT decided that it was not a case where they could make a clear cut finding that the dismissal was fair and they therefore sent the case back to the Tribunal, to be heard by a new panel applying the correct test.

The decision does not mean that Mr Booth will definitely lose. Still less does it mean that dismissing someone for refusing to accept a pay cut will always be fair. If such a change is introduced without good reasons, without proper contractual notice and without proper consultation and weighing up the alternatives then the dismissal might well be unfair.

It is certainly the case that any employer contemplating making a pay cut, or any employee being asked to take one, would be as well to take legal advice as to exactly where they stand.

The case is reported here.

Monday, July 04, 2011

"Outing" of Employee Was Not Unlawful, Says Court of Appeal

The Court of Appeal has upheld an Employment Appeal Tribunal's decision to overturn a finding of sexual orientation harrassment in favour of an employee of the Land Registry.

Mr Grant is gay. He worked for the Land Registry at Lytham St Annes and whilst employed there he had chosen to be open about his sexuality.

In due course he moved to the Coventry office and did not mention his sexual orientation straight away as he wanted to do so in his own time once he felt comfortable in the new workplace.

He subsequently discovered that his line manager had told one of his colleagues that he was gay without his prior knowledge or permission (she had made reference to it being pointless for the female colleague in question to "flutter her eyelids" at him.) He also felt uncomfortable at a dinner party when she asked in front of colleagues how his partner was, laying stress on the phrase "How is he?"

There were a number of other allegations including one that his line manager had made a "limp wrist gesture" towards him.

He brought proceedings for direct discrimination and harassment and 6 of the allegations, including the ones mentioned above, were upheld as amounting to direct discrimination.

The Land Registry appealed to the EAT. The central complaint in respect of the "eyelids" and "dinner party" allegations was that the Tribunal had failed to take into account that the Claimant had been openly gay whilst at Lytham St Annes and his line manager had known this.

The EAT upheld the appeal in what was seen in some circles as being quite a controversial decision. It held that the Tribunal should have considered whether the Claimant having been "out" previously was relevant to whether "outing" him at Coventry could be considered a "detriment." Some commentators expressed concern that this implied that once someone had been open about their sexuality in one workplace they would never be able to complain about being "outed" elsewhere against their will.

Mr Grant took his case to the Court of Appeal asking them to set aside the EAT's decision to require the Tribunal to reconsider the case, and therefore upholding the original Judgment in his favour.

The Court of Appeal said that the mere fact that the Claimant had "come out" before did not mean that remarks or references to his sexuality could never amount to discrimination. Everything depended on the context. Clearly "vituperative or offensive" remarks could be discriminatory.

However, they agreed with the EAT that the fact that the Claimant had "come out" was highly relevant to whether or not comments about his sexuality could be regarded as a detriment and therefore as actionable. It had to be remembered that this was a discrimination claim and not a claim for breach of privacy.

They said that any one of the employees at Lytham could quite innocently have mentioned Mr Grant's sexuality to someone at Coventry assuming that he was as open about it as he had been before and that whilst he might be upset about this such innocent disclosure would not have amounted in itself to harrassment.

Furthermore in the absence of any "ill intent" disclosing his sexuality in a particular workplace when he had been open about it before could not have the effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him (as the legal definition of harrassment requires.) "Tribunals must not cheapen the significance of those words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harrassment."

The Court of Appeal also doubted whether the mere fact that the comments were about his sexuality meant that they were on the grounds of it and therefore unlawful.

They therefore decided that the first 2 allegations failed all together and that the other 4 should be sent back to the Tribunal for further consideration taking into account the Claimant previously being "out."

With respect to the Court of Appeal, this still seems a controversial decision. Whilst it might be fair for a Tribunal to conclude that on the facts someone has not been subject to a humiliating environment by disclosure of something that they had revealed to other people it seems to be rather a leap to suggest that it can never amount to harrassment. Someone who was openly gay in one employment might not feel happy about this being disclosed in their new job in, say, a Catholic School where homosexuality was frowned upon.

One suspects this may not be the final word on this particular case.

The case is reported here.

Friday, June 17, 2011

Alex McLeish - Blose to Villa - An Update

It would appear following Alex McLeish's appointment as manager of the prestigious former European Cup winners Aston Villa that their less illustrious local rivals Birmingham City are indeed intent on bringing proceedings to claim compensation.

Theoretical Defendants in such proceedings could be McLeish himself and Aston Villa.

The basis upon which "Big Eck" (as he is apparently affectionately known in some quarters) would potentially be liable would be for breach of contract. It is understood he had 2 years left of his fixed term contract and in the absence of him being entitled to leave before the expiry of that term he would be in breach and liable to compensate Small Heath (as Birmingham City were originally known and which some might uncharitably argue would be an appellation more befitting their position in the football heirarchy) for any loss they suffered as a result.

As mentioned in my previous Post, McLeish is alleging constructive dismissal. The effect of a fundamental breach is to repudiate (i.e. destroy) the contract if the person on the receiving end decides to treat the breach as absolving him from any further performance of the contract. He will therefore no doubt say that he is not in breach of contract as he chose to leave because of the alleged breaches by "the Blues."

Aston Villa would be liable if it were shown that they had intentionally induced or procured McLeish to breach his contract (i.e. encouraged him to resign from Birmingham when it would be a breach of contract to do so.) It would not be inducing a breach of contract if it were shown (and it must be remembered that Villa deny emphatically having played any part in McLeish's decision to resign) that someone had advised or encouraged McLeish to exercise his right to resign in response to a fundamental breach by his employer, or had told him that there might be a vacancy available for him if he exercised that right.

Whilst a trial of these matters would be fascinating from an employment law perspective, sadly one suspects that peace will break out before too long on the basis of some sort of compromise settlement, and we can all then concentrate on the long wait for the next football season.

Thursday, June 16, 2011

Alex McLeish - Blose to Villa - An Employment Lawyer's Perspective

Much heat has been generated in the Second City over the resignation of Alex McLeish as manager of Championship club Birmingham City and the fact that he appears set to take over at their Premier League neighbours Aston Villa.

Allegations have been made of "tapping up" and Birmingham's second club have said they will be demanding compensation from their considerably more illustrious rivals in the event that McLeish does become Villa manager.

According to Birmingham, there is a clause in McLeish's contract which entitles them to £5.4 million compensation in the event of early termination of his contract (there were 2 years remaining when he resigned.)

The League Managers Association have said that McLeish's resignation by email on Sunday, with immediate effect, was because his position had been made untenable by the alleged behaviour of the board.

In the event that McLeish's employers were in fundamental breach of his contract of employment he, like any other employee, would be entitled to treat that breach as repudiating his contract. In those circumstances he would be entitled to resign without notice and any clauses in his contract providing for compensation or restictive covenants against working for a competitor would on the face of it be null and void and McLeish would be, as Villa claim, a "free agent."

Provided that he could show that the reason for his resignation was the alleged fundamental breaches and not simply the lure of managing a club that counts the European Cup and not the Autoglass Windscreen Shield as its crowning achievement he could in theory at least bring a claim for constructive dismissal.

McLeish is apparently alleging that details of his contract were disclosed without his permission and that his chief scout was sacked without discussion with him and in circumstances where the person in question discovered their fate by being copied into an email.

These allegations have been denied but if they were true then they would seem at face value to potentially amount to breaches of the implied contractual term of mutual trust and confidence. An employer must not without proper cause behave in a way which is intended to or likely to have the effect of destroying or seriously damaging the relationship of trust and confidence. Any breach of this implied term is a fundamental breach.

Even if the law of the land has not been broken there are of course FA and Premier League rules to consider but if press reports today are to be believed the perennial non-achievers from St Andrews were having second thoughts about whether they would pursue a complaint against the West Midlands' flagship club in view of the difficulties of proving McLeish had been the subject of an illegal approach.

Wednesday, June 08, 2011

Capability Dismissal - Return of the Burchell Test

The Employment Appeal Tribunal has handed down a Judgment confirming that the well-known "Burchell Test" that applies to dismissals for misconduct also applies to ill-health dismissals.

"Burchell" is probably the most famous unfair dismissal case. It states that the test of whether a dismissal for misconduct is fair is not whether the employee was guilty, but whether the employer genuinely believed that they were, had reasonable grounds for that belief and had arrived at it after a reasonable investigation.

Mr Doolan was dismissed from his employment after a period of work-related stress because his employer concluded, after obtaining reports from a Doctor and an Occupational Pyschologist, that he was not capable of returning to his previous "safety critical" job.

He had expressed the view himself that he was fit to go back to work and even said that he would be more than happy to go along with a capability dismissal procedure if he had any more time off.

The Employment Tribunal found his dismissal unfair. They called into question the circumstances in which the Occupational Psychologist had reported and said that a reasonable employer would not have preferred her report to that of the Doctor or have turned down his offer to return to work on the basis that any further absence would lead to dismissal.

The EAT overturned this and said that the questions were whether the employer genuinely believed he was unfit to return, whether they had reasonable grounds for that conclusion and whether they had carried out a fair investigation. The answer to all 3 questions was "yes." Another case was referred to that seemed to suggest an obligation to ascertain the "true medical position" but the EAT held that this did not impose any stricter obligation than Burchell.

The decision as to whether the employee could return to work was for the employer and not the people who prepared the medical reports and provided the employer made a reasonable decision in the light of those reports that was their prerogative.

The finding of unfair dismissal was therefore overturned and the case was referred back to a fresh panel at the Employment Tribunal to rehear the case, applying the correct test.

The case is reported here.

It is a useful reminder that the function of the Employment Tribunal is to review employers' decisions and make sure that they are "within the range of reasonable responses" and not to micromanage employment issues by imposing their own opinion of the right thing to do in a difficult case.

Thursday, May 26, 2011

Religious Discrimination - It is not just Christians who don't win!

The Employment Appeal Tribunal (EAT) has upheld the decision of an Employment Tribunal to reject a Muslim security guard's claim of religious discrimination after his employer refused to allow him to leave site to attend Friday prayers.

Mr Cherfi has worked for G4S since 2001 and since 2005 has been mainly based at a Job Centre Plus in Highgate. It would appear that until about late 2007 there was a relaxed approach to him leaving work on Friday lunchtimes to attend a mosque for Friday prayers. However when he did so in October 2007 he was disciplined for an alleged unauthorised absence.

In the following year he was told that he could no longer leave work to attend the mosque on Fridays because the Respondent's client required a specific number of guards to be on the premises at all times. Due to the impracticality of being able to draft someone in to cover breaks the guards were to remain on the premises when taking their lunch.

The premises had a prayer room that Mr Cherfi could use (his preference was to pray with fellow Muslims at the mosque) and G4S offered to amend his hours so that he worked Monday to Thursday and then either Saturday or Sunday. Mr Cherfi was not prepared to work on a Saturday or a Sunday. He has therefore worked Monday to Thursday since and brought a claim for religious discrimination.

At first instance he claimed that the policy was direct discrimination against him as a Muslim. This claim failed and was not pursued to appeal.

He also alleged that it was indirect discrimination. This meant that by requiring him to not leave work on a Friday the Respondent was applying to him the same provision criteria or practice as it applied to everyone else but it put Muslims, and him, at a particular disadvantage and could not show the requirement to be justified.

The Employment Tribunal found that the requirement was proportionate bearing in mind the difficulties or arranging cover for the Claimant's absence and the risk of losing the contract if they did not comply with their client's requirements.

The EAT upheld this. They said that it was clear that the Tribunal considered the impact of the requirement on the Claimant and the reasons why the Respondent would not allow him to do so. The word "proportionate" implies a balancing of the needs of the respective parties and there was nothing to suggest that the Tribunal had failed to look at both halves of the equation.

The case is a useful reminder that religious requirements do not automatically "trump" the needs of the employer. It does not however mean that this will always be the case. If the Claimant's absences could easily have been covered, or if there was no contractual requirement that guards be on site at all times, if other solutions had not been offered, or had there not been a prayer room available then the outcome could have been different.

Given that there have been recent complaints by evangelical Christian groups that believers are being persecuted in the workplace it is also a useful illustration of the fact that it is not just Christian Claimants who can find themselves in difficulties in the Employment Tribunal.

The case is reported here.

Tuesday, May 17, 2011

Employment Consultant Firm Loses The Peninsula War!

A company that sells employment advice and representation to businesses has suffered the embarrassment of seeing Unfair Dismissal claims by 3 of its own former employees upheld by the Employment Appeal Tribunal (EAT.)

Mr Rees, Mr McLachlan and Mr Jaffier and were made redundant by Peninsula after a downturn in work which followed the Government's decision not to make the list of Employment Tribunal Claims public any more, which hindered their ability to market to Respondents.

They all alleged that their dismissals were unfair on the basis that Peninsula had failed to follow the then applicable statutory procedure.

The original Judgment in the case was overturned by the EAT on the grounds that the Tribunal panel could be seen as being biased. The case was referred to a second Employment Tribunal. Given that the parties all held themselves out as having expertise in employment law the case was fought very keenly on both sides in view of the perceived risk of professional reputations being tarnished by an unfavourable outcome.

The Employment Tribunal found that the dismissals were automatically unfair given that the statutory procedure had not been followed - the Claimants had not been given enough information about the basis upon which they had been scored and selected for redundancy and had not been given enough opportunity to comment on their selection. They held that the process adopted by the scorer, Mrs English, had been "somewhat secretive and not fully transparent."

The Tribunal went on to decide that they did not accept that the Claimants would have been fairly dismissed in any event (an argument which would have led to them getting very limited compensation if it had been accepted.)

Peninsual appealed. The EAT rejected a submission that the Tribunal had applied to strict a test of the requirements of the statutory procedure. On the contrary they thought that the Tribunal, which had been conscious of the fact that the case had already been to appeal once, had looked at the case very carefully and diligently and had come to a decision which was open to them.

In front of the EAT Peninsula sought to argue that the Tribunal was required to consider whether the dismissal was fair because it would have happened anyway even where they found the dismissal automatically unfair. The EAT considered this out of deference to his argument but it is clear that they were unimpressed (as evidenced by the phrase "Mr Samson has difficulty accepting that section 98A(2) does not apply) and at one stage a submission by Peninsula that the Tribunal had applied the wrong test of dismissal was described as "absurd."

The appeals were rejected. A remedy hearing will now take place to determine the amount of compensation.

The case is reported at

Tuesday, May 03, 2011

Comments about former colleagues - be careful what you say!

A former employee of Swindon College has succesfully claimed damages after losing his new job because of comments that were made to his new employer by Swindon's HR Manager.

Robert McKie had been employed at Swindon College from 1995 until 2002 when he left to take up a new job at Bath City College. Swindon gave him a glowing reference and based on the evidence at trial of his former colleagues this seems to have been well deserved.

In 2008 after a brief detour to Bristol Mr McKie took up a job at the University of Bath. He had been there about 3 weeks when the HR Manager at Swindon emailed the University of Bath stating that Mr McKie would not be allowed on to Swindon's premises (which was a requirement of his new job) and alleging that there were serious issues over safeguarding students. It alleged that there had been issues over staff relationships and implied that disciplinary action had only not been taken because he had left before it could be instigated. It went on to say that the writer understood similar issues had arisen at Bath City College.

University of Bath subsequently dismissed Mr McKie. He could not claim Unfair Dismissal as he had been there less than 12 months and the Judge's fairly scathing comments about the unfairness of the procedure adopted by the University in dismissing him will therefore have been cold comfort.

He therefore brought proceedings against Swindon College. He could theoretically have claimed for libel but there would probably have been a defence of qualified privelige which would mean he would have had to prove Swindon had been malicious. Instead his claim was put on the basis that Swindon had owed him a duty of care not to make false statements about him in this context.

The Judge found after hearing from a procession of former colleagues at Swindon and what seems to have been some very unsatisfactory evidence on behalf of the Defendant that the comments were not justified.

He went on to find that this was not akin to the situation where an employer gives a reference, in which case there is clear law that a duty of care will usually be owed to the employee. He also found that it was not comparable to the situation where disappointed beneficiaries of a Will can claim against a negligent Solicitor even though they are not the subject of the negligence (the client being the Deceased.)

He treated it as being a novel case not covered by any previous authority and went on to consider whether it was sufficiently analogous to previous cases that it was appropriate to extend the law of negligence to cover this situation. He decided that it was - the Claimant had suffered not insignificant financial loss, the Defendant had clearly realised that this was a possible outcome of the comments and the previous relationship between the parties was sufficiently close that it was fair and reasonable to impose liability on them, even though the employment relationship had ended 6 years before.

He went on to find that the email had caused the loss as the detailed reasons given in the email for excluding Mr McKie from Swindon College had ultimately been the cause of his dismissal.

The Court will in due course have to decide on the amount of damages unless the case is settled or there is a successful appeal. Given that this is a novel case and there may be scope for argument about the extent of the duty of care it would not be a great surprise if an attempt is made to appeal.

The lesson for employers is to be very careful before making any comment to a third party about an existing or past employee. Swindon were not a referee for the Claimant and there was no obligation on them to say anything to the University at all. If they had not done so they would have had no legal liability if anything had gone wrong at the University.

Given that volunteering opinions as opposed to basic facts in a reference is dangerous enough in itself, when you are not even asked for a reference it may be that "silence is golden."

Always bear in mind that in the High Court damages are unlimited and can exceed the limits which would apply to an Unfair Dismissal claim in the Employment Tribunal.

Friday, April 15, 2011

Opposing Fox Hunting - the New Religion

An Employment Tribunal in Southampton has held that an employee's fervent opposition to fox hunting and hare coursing is a "philosophical belief" for the purposes of the Employment Equality (Religion or Belief) Regulations 2006. This means that it enjoys the same protection in the workplace as Christianity or Islam (or perhaps not -in view of the recent run of unsuccessful claims by Christians!) This decision follows on from the Employment Appeal Tribunal case of Grainger plc and Others v Nicholson where a belief in climate change was found to amount to a protected belief where it impacted on the employee's entire lifestyle. When the Regulations were first enacted they protected "religion or similar philosophical belief" (which meant political beliefs would not normally be caught although perhaps Marxism, with its all encompassing world view, secular saints, sacred texts and promised land would have been) but then the word "similar" was removed, potentially making it easier to claim protection. The EAT laid down criteria for a protected philosophical belief (not to religions - if something is a religion it is automatically protected), which must be:-

  • genuinely held

  • a belief, not an opinion or a viewpoint based on the information currently available (which would tend to suggest a belief in God supported by no evidence is protected but a rational opinion based on evidence is not!)

  • a belief as to a weighty and substantial aspect of human life and behaviour (i.e. not just a preference for Snickers over Mars Bars.)

  • able to attain a certain level of cogency, seriousness, cohesion and importance (claiming to be a Jedi on your Census form is not a protected belief as there is no coherent code of Jedi philosophy.)

  • worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others (this is a controversial one which appears to involve, with respect to the EAT, reading words into the legislation that are not there and which seems to have been arrived at chiefly so that members of the BNP were not covered by the legislation. Would all manifestations of organised religion satisfy this test if it applied to religions as well as philosophical beliefs?)
Mr Hashman worked as a gardener and had for many years been active in the (peaceful) anti-hunt movement. He started work for the Respondent and then discovered they were active in the local hunting fraternity. Despite discovering this he continued to work for them until eventually they decided (they say) that they no longer needed him. He claimed the decision to end his working relationship with them was because of his belief and claimed discrimination under the Regulations. Because the employee's beliefs had a fundamental impact on how he lived his life (he was a strict vegan and said his beliefs were the "guiding force" of his life, they were protected. This would not apply to everyone who opposes or dislikes hunting. If he had been a violent hunt saboteur then it is likely he would not have satisfied the last limb of the test, although he accepted he did indulge in non-violent civil disobedience. If he just disliked hunting or opposed it on scientific grounds then he would not have satisfied the second limb of the test. The fact he continued to work for hunters as a gardener after becoming aware of their activities was held not to disqualify his claim - moral issues involve difficult choices and he had bills to pay. The case will now go on to a full Tribunal to determine whether the termination of his working relationship was in fact because of his beliefs and therefore unlawful discrimination. Watch this space. Employers will want to think carefully about how these two decisions might affect them when dealing with situations in the workplace involving employees with strong views about a particular issue that have a major effect on their lifestyle. If you are making someone redundant and it is nothing to do with their crusade to prove the earth is flat and balanced on the back of a tortoise, make sure you have the clear paper trail to prove it!

Friday, April 08, 2011

Pregnancy and Redundancy - The Employer's Dilemma

The Employment Appeal Tribunal has held that a firm of Solicitors (lawyers in trouble in the Tribunal - surely not?) discriminated against a male employee in a redundancy exercise by giving a colleague who was on maternity leave the maximum score against the selection criteria. Eversheds needed to make redundancies and Mr De Belin and Ms Reinholz worked in the relevant department. Ms Reinholz was on maternity leave. The firm used a set of selection criteria, which each employee in the "pool" was scored against. One of these related to "lock up", a measure of how long it took for the employee's work in progress to be converted into cash. Because Ms Reinholz was off work she was given a notional score of 1 under this heading. Mr de Belin was scored 0.5. As the scoring overall was so close this potentially made the difference between Mr de Belin being selected for redundancy and keeping his job. After his redundancy Mr de Belin brought a Tribunal Claim for Unfair Dismissal and Sex Discrimination. He alleged that giving Ms Reinholz a better score than him because she had been pregnant amounted to less favourable treatment of him as a man given that pregnancy is a (believe it or not) uniquely female condition. He said that there were other ways that the situation could have been dealt with - "lock up" could have been disregarded altogether, she could have been given the average score or they could both have been scored against the last period when they had both been at work. Eversheds claimed that it had no choice to avoid treating Ms Reinholz less favourably because she was on maternity leave but to give her the maximum score - on the basis that if she had not been on maternity leave it was possible that she would have improved her lock up and got the maximum score. This argument was somewhat undermined by the fact that Eversheds subsequently did change their procedure (although it might be thought a little unfair of the EAT to hold that against them when they had been sued for following their previous practice!) The Sex Discrimination Act stated that special treatment afforded to women in connection with pregnancy is not discrimination.

The Employment Tribunal found that this meant treatment that was reasonably necessary for that purpose and did not extend to situations where there were less drastic means of avoiding any difficulties for the pregnant woman. As such whilst a man could not complain about a pregnant lady being allowed more frequent loo breaks, Mr de Belin was entitled to legitimately complain about Ms Reinholz being given the high score when his other suggested alternatives would have been more appropriate.

They also upheld his unfair dismissal claim, reasoning that if the measure adopted was unreasonable it was not fair.

The EAT upheld the Tribunal's decision. Whilst it clearly sympathised with an employer that was faced with being "damned if it did, damned if it did not" they agreed that the legislation only allowed special treatment of pregnant women that was no more than was reasonably necessary for the purpose of compensating them for the disadvantage caused by their pregnancy. The measure adopted here was too generous to Ms Reinholz. They also agreed that whilst the employer had made an honest misjudgement it was not reasonable for them to rely on that as a fair reason for dismissal.

There was also an appeal in relation to damages and that part of the case is to go back to the Employment Tribunal for further hearing. Ironically, the context of this was that within a year there was a redundancy exercise within the Department to which the narrowly surviving Ms Reinholz was transferred, and she was out anyway. It would appear that Mr de Belin's claim for damages might well yet (we shall have to see) be limited to the loss of a "stay of execution."

This case is quite tough on employers. The difficulty for Eversheds was that if they had scored Ms Reinholz differently then no doubt she would have brought a Claim (which like Mr de Belin's could have been for potentially unlimited damages!) and would have pointed to the exception for special treatment for pregnant women as a basis for saying that the employer should have scored her better. The EAT consoled itself by suggesting that the concept of reasonableness should protect employers who act appropriately but it will often be very difficult for employers to make fine judgements about what is reasonably necessary and what is not.

The case is reported here.

Thursday, April 07, 2011

The Perils of Social Networking Sites - Who is reading?

Facebook continues to be a regular source of work for employment lawyers. Social networking sites lull people into a conversational style of writing akin to a chat that they would have with their mates down the pub. It can be very easy to forget that an entry on Facebook is a (nearly) permanent record (and easier to prove.) It can also be easy to forget who your "Friends" are and/or whether people at large have access to your Facebook page. In the last 24 hours there has been more publicity about Katie Furlong, who lost her redundancy payment from Royal Bank of Scotland after bragging about it on Facebook. She has apparently thrown in the towel in her attempts to bring an Employment Tribunal claim and will therefore never see the approximately £6000.00 she would have been in line for had she not posted on Facebook and had been made redundant as planned. She made comments after the redundancy announcement expressing pleasure at the fact that she had held on to that point "when they could've had me out long ago without a penny." As a result RBS disciplined her for gross misconduct, consisting of breaching the company's confidentiality rules, and she was summarily dismissed "without a penny." Apparently she was anonymously denounced to her employers, presumably by a "Friend." It has been suggested that if she had made the comments in the pub to friends this would not have resulted in dismissal, but that may just be because it would have been harder for the employer to find out about them. This followed on from a previous case where an employee was sacked after posting on Facebook that she found her job boring. The employer decided to permanently alleviate her boredom. Employers should have a clear policy in writing about what is and is not allowed, to avoid the risk of unfair dismissal claims by employees who did not have clear boundaries. The message for employees is that you can be disciplined or dismissed for what is on your social networking page, whether you post in your own time or your employers, if it impacts on your employment. This means that disclosing confidential information, making comments that bring your company into disrepute (and do not forget people who know you will know where you work even if you do not mention your employer by name) or posting things that could cause problems in the workplace (e.g. abusive language about your boss) are all very risky.

Tuesday, April 05, 2011

"Final" Written Warnings - Not the Last Word After All?

The Employment Appeal Tribunal has recently handed down 2 decisions where it concluded that contrary to the usual rule employers were not entitled to rely upon final written warnings when deciding to dismiss. In the first case, Mr Sakharkar was dismissed because of an unacceptable absence record. The decision to dismiss him was reached because he was already on a final written warning and would not have been made otherwise. After the event (but evidently before the 3 month Tribunal time limit for a Claim had expired) it came to light that he should not have been given the final written warning because the wrong time period had been taken into consideration. The Employment Tribunal found that his dismissal was fair because on the information available to it at the time the employer had genuinely but mistakenly believed he was subject to a valid warning. The EAT overturned this and held the dismissal unfair. As the employer was a large company with significant HR resources the mistake should have been identified and whilst the outcome was going to be harsh either way it felt on balance it was the employer who should suffer. In the other case Sandwell Council took into account a final written warning against a teacher when deciding to dismiss her. She had withdrawn her appeal against that warning on the basis of what appeared to be well-founded concerns that if she went ahead with it there was a chance that a higher penalty (i.e. dismissal) would be imposed. She successfully argued before the EAT that the final written warning should not have been taken into account and that her dismissal was unfair. The EAT appears to have been influenced to some extent by the fact that the evidence that she would have presented at her appeal in relation to the warning seems to have been compelling. The lessons for employers? 1) Do not assume that you can always rely on a final written warning even if the employee did not appeal against it. If at a dismissal hearing the employee is challenging the warning be prepared to look at the underlying facts where necessary. 2) Treat disciplinary proceedings in which you give a warning which could at a later date be taken into account towards dismissal just as carefully as you would a gross misconduct case resulting in immediate dismissal. 3) Check carefully that any warning has not expired - although in some very limited circumstances it may be appropriate to take into account "spent" warnings when deciding the "starting point" level of punishment.

Monday, April 04, 2011

Positive Discrimination - New Law Isn't Discrimination - And It (probably) Isn't Positive Either

From this Wednesday, 6th April 2011, s.159 of the Equality Act 2010, which allows "positive action" in recruitment, will come into force. Whilst "positive discrimination", like any other form of discrimination because of a protected characteristic (eg. sex, race) remains unlawful, this new provision will in very limited circumstances allow a person with the protected characteristic to be favoured in recruitment. Both candidates must be "as qualified to be recruited or promoted" and the decision to favour the one with the protected characteristic must be based on the employer reasonably thinking that people with that characteristic suffer a disadvantage conneted to it or participation in an activity by persons who share that characteristic is disproportionately low. Even then favouring the candidate with the protected characteristic is only allowed where the action is taken to overcome or minmise the disadvantage or enable or encourage them to participate in the activity. The law also requires that the employer does not have a policy of favouring people with the protected characteristic. It is difficult to think of circumstances in which all of these criteria will ever be met. It must be rare for there to be two candidates who are identically qualified (note "qualified" not "suitable") and any recruiter who applied this legislation incorrectly would be leaving themself wide open to a discrimination claim (for potentially unlimited damages including compensation for loss of the chance of getting the job and hurt to their feelings) from the losing candidate. Probably far better to simply decide between the candidates on their merits. There will rarely really be a total deadlock. Employers should keep detailed records of all recruitment decisions to show that these are transparent and not discriminatory. It should not be forgotten that this clause is a power, not an obligation - the employer does not have to apply it. In fact the winning candidate may not even be pleased if you do!