Friday, November 14, 2014

Don't Look It Up On The Internet - If You Are An Employment Tribunal

In a recent Judgment overturning a Norwich Employment Tribunal decision that a Claimant was disabled the Employment Appeal Tribunal has reminded Employment Judges (and lay members) that there role is to adjudicate and not investigate.

In the Courts and Tribunal in this country we generally have an adversarial (the parties fight it out with the Judge as the final decision maker) than an inquisitorial (the Judge investigates with the help of the parties to get to the truth) system.

Mrs Sanders brought a disability discrimination claim against an NHS Trust. A joint expert report was obtained which concluded that her depression was mild and did not have a significant effect on her day to day activities. This would suggest that she was not "disabled" as defined by the Equality Act 2010, which is an essential prerequisite to a Claim for disability discrimination.

During her evidence Mrs Sanders, who was not legally represented, was asked questions by the Employment Judge about the medication she was taking.

After the evidence was completed and legal submissions had been made the Tribunal retired to consider its decision on the issue of disability.

When they returned they informed the parties that they had done their own research on the internet and had found some information on Wikipedia and a couple of other sites which led them to the conclusion that Mrs Sanders had been prescribed the maximum dose of medication. This appears to have contributed to their ultimate conclusion that Mrs Sanders was disabled.

The parties were given time overnight to consider their positions and in the morning the Respondent applied for the panel to recuse itself (i.e. step down) on the basis that they should not have done their own research and it gave the appearance of bias.

The Tribunal declined to go along with this application and following the decision in Mrs Sanders' favour the Trust appealed.

The EAT reminded the Tribunal that whilst it was legitimate to ensure that an unrepresented party was given sufficient assistance and leeway to enable him or her to put across her case, the Tribunal's duty was to decide the case on the evidence that was presented to it. If there were deficiencies in the Claimant's evidence it was not for the Tribunal to plug the gaps through their own research. This is particularly so given the notorious unreliability of information on the internet, especially in respect of medical matters.

By carrying out these investigations the Tribunal had given the impression that it was looking to bolster the Claimant's case. This gave the appearance of bias, and the Tribunal should have acceded to the recusal application.

When a party to an appeal to the EAT alleges bias, the Employment Judge will usually be asked for an affidavit setting out his or her recollection. The EAT reminded the Tribunal that this should set out the facts and not argument, and criticised the defensive nature of the affidavit lodged in this case, from which the Judge appeared to be labouring under the misapprehension that it was appropriate for him to put forward the arguments for rejecting the appeal given that the Claimant was unrepresented.

The appeal was allowed and the case was sent back to the Employment Tribunal to be heard by a fresh panel.  

Friday, November 07, 2014

You Can't Say That!! - Why Not All Irish People Are Alcoholics

The BBC reports that a teacher from County Kerry has been turned down for a job in South Korea because the employer had a policy of not employing Irish people. This was on the grounds of "the alcoholism nature of your kind" (sic.)

Refusing someone employment because of their nationality (whether this was because of an intrinsic dislike of that country or, as here, on the basis of some stereotypical assumption about the characteristics of people from that country) would be unlawful direct race discrimination in this country under the Equality Act 2010.

Rejecting the job applicant in an email which explicitly stated discriminatory reasons like this would be a "slam-dunk" admission of liability.

Most employers who discriminate do not admit this, and may not even be aware that they are guilty of it. As a result English law allows the Tribunal to draw inferences and, if there is evidence from which in the absence of an innocent explanation discrimination could be found, in certain circumstances in effect puts the onus of proof on the employer.

Employers need to have transparent procedures to show that all job applicants are considered on their merits and treated equally.

Incidentally, the Equality Act specifically provides that alcoholism is not a disability so it is not a "protected characteristic" and it is not therefore unlawful to turn someone down for a job  because they actually are an alcoholic - although dismissing an existing employee with a drink problem can result in an Unfair Dismissal Claim if not handled correctly.    

Wednesday, July 23, 2014

Court of Appeal Refuses to Re-Write Restrictive Covenant

The Court of Appeal has overturned a High Court decision that said that a restrictive covenant could be re-written to protect the interests of the former employer.

Mr Huggett worked for Prophet plc, who develop, sell and update software for the grocery sector. When he left to go and work for a company which develops and sells a range of products, including one for use in the same sector, Prophet tried to enforce a restrictive covenant to stop him.

The clause stated that for 12 months he could not be involved in certain activities in connection with “…any products. ..on which he was involved whilst employed by Prophet.”

Mr Huggett argued that the literal meaning of this was that he could not work for someone else supplying Prophet’s products and that since the new job did not involve this, but a similar competing product, the covenant did not apply.

The High Court disagreed. That would lead to an absurd result and could not have been what the parties intended. The Judge said that the clause should in effect be read as including at the end the words “or similar thereto.” An injunction was granted to Prophet to stop Mr Huggett starting the job.

Mr Huggett went to the Court of Appeal who overturned the High Court decision and lifted the injunction. They acknowledged that whilst a covenant can be interpreted by a Court where it is ambiguous, there was no ambiguity here – the clause was just badly drafted. The parties had contracted on those terms. Prophet had “made its bed and must lie in it.” 

Mr Huggett can start his new job. Depending upon how the wording came about it may also be that the person who drafted it is having to speak to their Professional Indemnity Insurers.

Restrictive covenants are a restraint of trade and a Court will not uphold them unless they are clear and reasonable. The case is a reminder that exceptional care needs to be taken in drafting them and this is clearly an area where any employer preparing a contract or seeking to uphold restrictions should take specialist advice.


Tuesday, July 08, 2014

You Can't Have Your Cake and Eat It in Discrimination Law

The BBC reports that a "Christian run" bakery in Northern Ireland is facing a potential sexual orientation discrimination claim after it refused to bake a cake with a slogan on it which supported gay marriage.

The owners of the bakery said that this was incompatible with their religious beliefs.

As a result they have received a letter from the Equality Commission inviting them to compensate their client or face legal action.

The General Manager of the bakery expressed himself "very surprised" at this turn of events. Given the widespread publicity that has been given to previous cases where damages have been awarded against Bed and Breakfasts that refused to allow gay couples to share a bed that surprise is itself somewhat surprising.

Unless the bakery is able to point to evidence that a "straight" cake would have been refused in similar circumstances it would appear that they are likely to be in some difficulties as it would on the face of it seem to be a clear refusal to provide a service because of sexual orientation.

There are two schools of thought on this. Many would say that anyone who provides a service to the public must do so without discriminating and that no-one would dream of allowing a business to refuse to serve a customer on grounds of their race, whether this was based on strongly held religious (or other) beliefs or not.

On the other hand there are those who feel uncomfortable with people being compelled to provide services in circumstances where this clashes with their strongly held beliefs.

At least one Judge has suggested that the law might allow for "conscience clauses" in this respect. Another possibility might be to give private business more leeway than taxpayer funded public services.    

Wednesday, June 18, 2014

Do You Have To Tell Your Employer Everything? - Or Guilt By Association

The Employment Appeal Tribunal has found that a School was entitled to fairly dismiss an employee who failed to inform them that she was in a relationship with a registered sex offender.

Appropriately for a case involving a School, it is entitled (as a result of an order for the details to be anonymised) "A and B and C."

A applied in January 2009 for the job of  Headteacher at a School. She got the job and started work on 1st September. In February 2009 the man with whom she was in a relationship was arrested in connection with allegations of making indecent photographs of children. He was convicted in February 2010 and placed on the Sex Offenders Register.

There was no suggestion that A knew about his activities prior to his arrest or that she was in any way involved in them. They did not and never have lived together although she did stay overnight at a house which she owned and which he occupied rent free.

At no stage did A make her employer aware of the arrest or conviction of her partner.

In June 2010 the local education authority became aware of the conviction and was told, wrongly, that A was living with the offender.

A was suspended and subsequently required to attend a disciplinary hearing. It was alleged that she had a duty to disclose the information to enable the School to comply with its safeguarding duties and that she was in neglect of duty.

She told the employer that she had taken advice from a Police Officer at the time of the arrest about whether she needed to disclose it to anyone and was informed that all that was needed was an enhanced CRB check. She had also made enquiries on a "no names" basis of various other authorities and had been told that since she was not herself under suspicion she was not obliged to disclose anything.

A was dismissed for gross misconduct and claimed Unfair Dismissal.

The Employment Tribunal found that the dismissal was unfair because there were problems with the appeal process. It held however that had the appeal been conducted fairly there was a 90% chance that A would have been fairly dismissed and that A had 100% contributed to her own dismissal. In other words whilst there was a technical unfair dismissal A received limited damages and in principle the employer was entitled to dismiss her in these circumstances.

A appealed to the EAT, saying that the Tribunal should have found that there was no duty of disclosure on her, and therefore that the dismissal could never have been fair and was not her own fault - so that she should not have her damages slashed to next to nothing.

Amongst her arguments was that her dismissal breached her right under Article 8 of the European Convention on Human Rights to respect for her family life. The EAT found that this did not really take the case any further as it had to decide whether the employer had acted reasonably in expecting her to disclose this private information and that was the essence of the Article 8 right anyway.

The EAT rejected the appeal. It found that the employer had a sufficiently clear disciplinary rule covering the situation. She had failed to disclose to her Governing Body a matter which might be relevant to their ability to assess any safeguarding issues.

They also noted that after the conviction A had sought a second round of advice from relevant people and had been advised in particular by a senior member of the Probation Trust that she should make the Governing Body aware of her relationship with the offender.

It could be argued that this is a harsh outcome. There is no suggestion that in fact A's actions endangered any child. The offender did not work with her or have access to children through her. It would be understandable if A was concerned that if she did disclose the facts then her own employment could be at risk through no fault of her own. On the other hand it reflects the degree of latitude that an Employment Tribunal will give employers in terms of deciding their own rules and for what conduct dismissal will be "within the range of reasonable responses."  

It should be borne in mind that this is a decision on its own facts and it is not authority for the proposition that an employer is entitled to know everything about an employee or that an employee is under an obligation to disclose everything that an employer might feel it wants to know about them (or their partner.)

Friday, June 06, 2014

Take A Break!

The BBC reports that the Chartered Society of Physiotherapy is encouraging employers to ensure that employees take their lunch breaks after research suggested that 20% of people work through their lunch.

Failure to have breaks can potentially lead to health risks including pain arising from not varying your position enough through to more serious consequences arising from fatigue and stress.

Workers have various legal rights to rest breaks.

As a general rule anyone working more than 6 hours in a day is entitled to a 20 minute rest break away from their "work station".

There should normally be at least 11 hours between the end of one working day and the start of the next and there should usually be 1 complete day off every week.    

Workers are also entitled to 5.6 weeks (which is 28 days for a full timer) paid annual holiday (which can include Bank Holidays) every year.

As these are health and safety rules derived from EU legislation employers should not simply be allowing employees to take breaks but positively ensuring that they do so. Evidence suggests that people who take proper breaks are actually more productive than those who do not so it makes sound business sense as well as avoiding the risk of potentially costs Employment Tribunal and Personal Injury claims.    

Monday, March 03, 2014

Assaulting Customers - Not Part of the Morrisons Experience

The Court of Appeal has held  that Birmingham County Court was correct to reject a personal injury claim brought against Morrisons by a customer who was assaulted by a member of staff.

The incident occurred at a store in Small Heath (I make no comment.) Mr Mohamud went into the kiosk at the petrol station (which also contained a small convenience store, hence his request was not a daft one) enquiring about whether there were facilities for printing from a USB stick.

The employee to whom this enquiry was addressed, a Mr Khan, responded in an abusive manner, including using racist language. The Judge expressly found that Mr Mohamud had not at any stage behaved offensively or aggressively and  Khan's response was entirely unprovoked.

Khan followed Mr Muhamud to his car, despite having been told by his Supervisor to go back into the kiosk, and punched him twice in the head.

On the basis that Morrisons' pockets are deeper than those of  (the presumably now unemployed, if not worse) Khan, Mr Muhamud sued them for assault.

The issue was whether Morrisons were vicariously liable for the actions of Khan, which they would be if he was acting in the course of his employment.

The Judge at first instance held that they were not.

The acts were not sufficiently closely connected to Khan's employment to make it fair and just to hold Morrisons liable. Whilst Khan was employed to interact with the public, it was not part of his job to keep order and indeed he had specific instructions not to confront abusive or angry customers.

The Court of Appeal agreed. The fact that the assault took place on work premises was relevant but not conclusive. Khan's duties did not involve any sort of authority over members of the public and his actions were not directed towards attempting to do his job or advancing the interests of Morrisons. They took place purely for reasons of his own.

As such the appeal failed and Morrisons were not liable.

This does not mean that Mr Mohamud is left with no remedy at all. Depending upon the seriousness of his injuries he may have a claim under the Criminal Injuries Compensation Scheme, although this is generally less generous than the civil system of damages.      

It also does not mean that an employer can never be liable for an assault by an employee. A rugby club have been held liable in a previous case for an assault by a player during a match (on the basis that this is just the sort of thing the parties might expect to happen!) , nightclubs have been held liable for assaults by overzealous bouncers and a train company were liable when a railway ticket inspector put a passenger in a headlock (!) If Khan had been a security guard and had acted in the way that he did because he thought Mr Muhamud was up to no good then Morrisons could well have been liable.

Wednesday, February 26, 2014

Employment Tribunal Awards to Go Up

The annual increase in the limits on certain Employment Tribunal Awards has been announced. These will come into effect on 6th April 2014 - the change used to take place on 1st February each year so this time round employment lawyers have been kept in suspense.

The maximum for "a week's pay" for the purposes of calculation of the unfair dismissal Basic Award, Statutory Redundancy Payments and various other things will go up from the user friendly £450 to the much more difficult to multiply without a calculator £464. This means that the maximum possible Basic Award/SRP will be £13920.

The maximum Compensatory Award for Unfair Dismissal increases from £74200 to £76574 (once again hardly a figure that will stick in the mind!) This is subject to there being no limit on the compensation in a discrimination claim and also to the new provision introduced last year limited the Compensatory Award to 52 weeks' pay even if that figure is lower than the maximum.

The daily rate of Guarantee Payments in the event of lay-off (payable for such a short period as to be little more than a token right) increases from £24.20 to £25.00.    

Friday, February 07, 2014

Driving at your Opponent - Not a good Litigation Tactic

The Employment Appeal Tribunal has held that an Employment Tribunal was correct to strike out the Response of a Company two of whose representatives had intimidated one of the Claimants.

The strike out meant that the hearing proceeded in the absence of the Respondent, who was found liable to both Claimants and ordered to pay compensation to them.

The allegation was that a car had been driven deliberately close to one of the Claimants on a pedestrian crossing and also that it had been driven the wrong way round the one way system at the Tribunal towards her in an effort at intimidation.

The Tribunal decided that a fair trial was no longer possible because one of the Claimants (who was also a witness for the other Claimant) was terrified about giving evidence and struck the Response out.

The Respondent appealed. They said that the decision did not sufficiently explain why the Response had to be struck out in respect of both Claimants rather than just the one who was intimidated and that the Tribunal should have considered lesser measures such as barring one of the individuals involved from giving evidence.

The EAT gave this pretty short shrift. The Tribunal had given adequate and logical reasons as to why both Claims were affected and why debarring the Respondent's witness would not be an appropriate response. As they pointed out, if the Respondent was in difficulty as a result of the strike out it was entirely their own fault.

Tribunals will usually be reluctant to strike out a Claim or Response on the basis of bad behaviour. The test is in effect whether a fair trial is still possible or not. However as the above case and some previous ones have shown, where witness intimidation is involved the ultimate sanction will sometimes be deployed.

Thursday, February 06, 2014

Love In The Office - Not Good For Your Continued Employment

The Employment Appeal Tribunal has reversed an Employment Tribunal decision that an employee who was dismissed after being caught having sexual relations ( (c) William Jefferson Clinton) with a colleague in the office after hours was unfairly dismissed.

Mr Haslem (who understandably tried to get a Restricted Reporting Order made to protect his anonymity - sadly for him the EAT held that the public interest in open justice outweighed his right to privacy) was caught indulging in a sexual act with a colleague in the office after hours. To compound his misery he managed to inadvertently create a recording of him and his inamorata making derogatory comments about the boss.

An external firm of employment consultants was called in to investigate and deal with the disciplinary process. They made a recommendation to the boss that Mr Haslem be dismissed (as an external body they had no authority to dismiss) and this was followed.

The Employment Tribunal found (and this must, with respect,be correct) that the procedure was fair. Although the belief in guilt was in the mind of the external consultant, this was a small company and it was a reasonable procedure to follow. Otherwise the complainant might have had to investigate and make the decision himself given the high level of those involved in the organisation.

However they then went on to find the dismissal unfair (albeit with a 30% reduction for contributory fault based on the sexual behaviour and 20% based on the comments) as they said that dismissal for gross misconduct was not "within the range of reasonable responses" open to the employer. The EAT disagreed and said that the Tribunal had impermissibly substituted their own judgement for that of the employer. They did not think it could be said that no reasonable employer would dismiss in these circumstances.

Whilst a policy of banning romance in the office might well be unlawful, when things go further than that this case is likely make it difficult for any employee who in future is found in flagrante delicto to argue that their dismissal was unfair. 

Is that obviously right? On the one hand they were overstepping the boundaries. On the other hand, it was outside of work time and they did not know that they were being observed. On that basis some might feel this decision was perhaps a little harsh.

Ordinarily the advice to employers would be that if particular conduct will lead to dismissal it is best to specify this explicitly in the company's Disciplinary Procedure. On this occasion, perhaps not...