Monday, December 21, 2015

Speak English or Else!

The Employment Appeal Tribunal has held that an Employment Tribunal was right to find that an employer did not discriminate against or harass an employee on grounds of race when it instructed her not to speak Russian in the workplace.

Mrs Kelly worked for laboratories which carried out, amongst other things, animal testing. As a result it had attracted the ire of animal rights activists and this had on occasion included the labs being infiltrated by protestors who had got jobs there so that they could obtain and expose information about the company.

The Claimant was a Russian national. During her probationary period her line manager became concerned about what he perceived to be strange behaviour which included often using her mobile phone at work, disappearing into the toilets with her phone for excessive periods and speaking on her phone in Russian (some readers may not think that the last of these is particularly unusual behaviour for a Russian.)

He became suspicious that she might be an activist and formed the view that it was important that the managers could understand everything she was saying. She was therefore instructed not to speak Russian in the workplace.

The Claimant objected that two Ukrainian colleagues also spoke in Russian at work. As a result her line manager passed instructions on for them to be subject to the same rule, although it appears that they were never actually told this.

The Claimant raised a grievance and ultimately resigned. She alleged that the instruction was inherently racially discriminatory and also amounted to racial harassment because it violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her.

Leeds Employment Tribunal dismissed her Claim. It held that she had not proven facts from which race discrimination could be found in the absence of a contrary explanation. Anyone speaking a language other than English would have been given the same instruction. The context was the suspicion that the Claimant was speaking in a different language to hide what she was saying and in those circumstances the reason for the instruction was not her race.

Mrs Kelly appealed to the Employment Appeal Tribunal, which upheld the original decision. Whilst it accepted that such an instruction was capable of amounting to race discrimination, the Tribunal in this case had been entitled to find that it did not on this occasion. Two non-Russian comparators had been treated the same and the reason for the conduct was not the Claimant's race but the fact that the Respondent wanted to ensure that it knew what she was saying.

Although the Respondent won this time, employers should be very wary of following suit. As the case makes clear, an instruction to speak English can be unlawful discrimination and there were very particular facts here which meant that the employer's actions were lawful. Any employer who is considering a ban on other languages needs to think carefully about what the justification for this is and take appropriate advice.              

Friday, December 18, 2015

Voicemails Speak Volumes!

Lucy Allan, MP for Telford, is at the centre of another row  after allegations that she bullied an employee in a series of voicemail messages.

This follows recent controversy over claims that the MP fabricated a supposed death threat in an email message that she had received from an anti-war protester.

Arianne Plumbley was employed on a temporary contract in the MP's office and was signed off sick. She has released to the media a series of voicemail messages which she says she received from Ms Allan during her sickness.

The messages appear to show the MP becoming increasingly irate about what she perceives as being messed about (a somewhat more colourful phrase is used) by Ms Plumbley and by the employee's alleged failure to contact her about her absences.

There are also comments to the effect that the illness is not genuine and innuendos that the employee may have stolen a computer and/or had a drink problem.

Ms Plumbley complains that she was bullied while the MP says that she was dismissed for gross misconduct.

As she had less than 2 years' service Ms Plumbley had limited legal rights and in particular is not able to bring a Claim for Unfair Dismissal.

However, if she had got the necessary qualifying service then she may well have had a Claim. Leaving those sort of messages could arguably amount to a breach of the implied contractual term of mutual trust and confidence and therefore to constructive dismissal if Ms Plumbley had resigned in response to them.

That being said, context is everything and without knowing what Ms Allan's full explanation is in respect of her side of the story we cannot say for certain. Indeed, an employee who failed to make appropriate contact with their employer during sickness absence could find themselves facing perfectly legitimate disciplinary action in certain circumstances.

Thursday, November 26, 2015

ECHR BansThe Burqa! (Sort Of)

The European Court of Human Rights has held that France did not breach the human rights of a Muslim woman whose contract was not renewed because she refused to remove an Islamic headscarf in the workplace.

The lady in question was engaged under a fixed term contract in a psychiatric unit at a hospital in France. She was not prepared to stop wearing the headscarf, which had given rise to complaints from patients and was a breach of the hospital rules.

Having exhausted her legal options in France she presented a complaint to the ECHR alleging a breach of her Article 9 right to religious freedom.

By a 6 to 1 majority her complaint was rejected.

Whilst the Court accepted that Article 9 was engaged, and there had been a restriction of her right to manifest her religion, it went on to find that this was justified. The restriction had the legitimate aim of protecting the rights and freedoms of others, having regard to the principle of secularism and public service users' right to receive services free from discrimination, and was "necessary in a democratic society."

Issues around religious freedom in the workplace and in the provision of goods and services can be extremely difficult, especially as they often involve balancing the rights of those of a particular faith with the rights of others. Protecting the rights of one will frequently involve curtailing the freedom of the other - see for example the cases involving the provision or otherwise of wedding cakes to same sex couples by Christian bakers.

The French case might well not have been decided in the same way by a Tribunal in the UK. "Secularism" is a much more central principle of French society than it is in Britain. In a previous case a hospital was entitled to require an employee not to wear a cross around her neck for health and safety reasons but the same did not apply to a worker for an airline when there were no such concerns.                  

Monday, September 28, 2015

I'm Not Going To Be Your Friend Anymore! A Tale Of Workplace Bullying.

There have been various reports in the UK press in the last few days (this one included) of a case in the Australian Workplace Tribunal which is stated to have found that unfriending a colleague on Facebook can amount to bullying.

In fact, that is not really what the decision says at all.

The case arose from a dispute in an Estate Agency where one Ms Roberts complained about the way her properties were being displayed. The wife of the principal, Mrs Bird, made some disparaging comments about her and when Ms Roberts went to Facebook to see if it was being mentioned there she was upset to discover that they were no longer "Friends."

The Tribunal in fact found that there had been a sequence of events over a period of two years which as a whole amounted to bullying.  

In the employment law of England and Wales there is, as such, no legal right not to be "bullied." It is however a term of all contracts of employment that the employer will not without good reason behave towards the employee in a way which is calculated (intended) or likely to destroy or seriously damage the relationship of mutual trust and confidence. If an employee resigns because of a breach of this term this is capable of amounting to constructive Unfair Dismissal.

Simply "unfriending" someone would be unlikely in and of itself to amount to a breach but context is everything. If it was part of a pattern of unfriendly behaviour then it could be the "final straw" that justified resignation. If it was done in an ostentatious manner which was done with the express intention of upsetting someone then that could similarly amount to a breach.

If on the other hand a manager unfriended someone because it was inappropriate to be friends with a more junior employee at a time when the former was going to be dealing with a disciplinary matter relating to the latter then that would be perfectly reasonable.

Of course, this perhaps all begs the question as to whether it is sensible to be Facebook Friends with your boss in the first place, but that is another story.

Interestingly, it appears that the Tribunal in Australia did not have any legal power in this case to award compensation.


Friday, July 10, 2015

Are You Off Sick, On Holiday Or Both?

The Employment Appeal Tribunal has handed down a Judgment  that helpfully clarifies the law around entitlement to holiday pay whilst off sick.

Mr Plumb was a printer. As a result of an accident in April 2010 he was off work continuously until February 2014 at which point his employment was terminated.  

He did not take any paid holiday during the 2010,2011 or 2012 holiday years. He tried to take paid holiday in August 2013 but his employer refused to allow him to do so.

Following termination of his employment Mr Plumb brought a Claim for his holiday pay for 2010-2012. The company had agreed to pay him for the 2013/14 holiday year.

The Employment Tribunal turned down his Claim on the basis that he had not shown that he was unable to take the holiday because of his sickness and had not therefore satisfied the Tribunal that he ought to be able to carry over the unused holiday.

Mr Plumb appealed to the Employment Appeal Tribunal.

The EAT referred to the previous case law on the topic and in particular analysed the reasoning behind the applicable EU Directive and the European case law. This drew the distinction between sick leave, which is for the purpose of recovering from a medical illness and annual leave, which was to enable workers to have rest in order to ensure health and safety.

It envisages that employees should not be forced to take holiday whilst they are off sick and should be able to take it, for its distinct purpose, in a subsequent year if necessary.

The EAT concluded that the Employment Judge's decision was wrong. Where an employee had the option of taking annual leave while off sick, he or she was not obliged to do so but had the choice. If they chose not to do so, then the untaken annual leave could be carried over beyond the end of the holiday year in question.

Mr Plumb was not therefore required to prove that his sickness absence meant that he was "unable" to take his holiday.

So far so good for Mr Plumb. However, the EAT went on to note that the case law was concerned about the possibility that an employee could carry forward annual leave entitlement over many years. It was therefore lawful, and appropriate, to impose a limit on how far leave could be carried forward.

The EAT took the view the the period for which holiday entitlement could be carried forward was 18 months from the end of the holiday year in which it was accrued.

Mr Plumb was therefore entitled to his accrued holiday pay for the February 2012 to January 2013 holiday year but not for the period prior to February 2012.

It remains to be seen whether this topic will be considered further by the Court of Appeal but the clarification is welcome and the latter part of the decision does at least give some comfort to employers after recent decisions that have potentially expanded the scope of their obligations to pay holiday pay on overtime and commission going back in some cases many years.          


Monday, February 16, 2015

Compensation Going Up (A Bit)

The Government has announced that some increases to the amounts that the Employment Tribunal can award.

These will take effect from 6th April 2015 for causes of action arising on or after that date (e.g. the date of dismissal.)

The maximum for a "week's pay" for the purposes of the Unfair Dismissal Basic Award or the calculation of a Statutory Redundancy Payment will go up from £464 to £475. This means the largest potential Basic Award or SRP will increase from £13,920 to £14250 (and, as an aside, £475 is easier to multiply for the purposes of mental arithmetic than £464!)

The maximum Compensatory Award will increase from £76,574 to £78,335 although this will be largely academic for the vast majority of Claimants given that the maximum is already capped at 52 weeks' gross pay if this is lower than the figure above, which for most people it will be.

Employers should not forget that damages for discrimination and certain other claims are not subject to the statutory cap!  

Monday, January 19, 2015

Should Online Racists Be Sacked?

The BBC reports on the case of a Texas man who was sacked after a racial slur he used on Facebook came to the attention of his employer.

Somebody shared it to a social media site which encourages people to report racists in order to get them fired.

There are apparently, in the US at least, a number of people who run similar sites. The one which the man in Texas fell foul of actually encourages readers to contact the alleged racist's employers.  

Whilst the aim of highlighting and combating racism is no doubt laudable, there is perhaps something distasteful about reporting someone you do not know to their employer in the hope that they will lose their job as a result of their comments. Whilst inciting racial or religious hatred is unlawful in the UK, it is not against the law simply to have racist views - and who decides whether the views are actually racist?  

How would an Employment Tribunal in this country view a dismissal arising in such circumstances?

Conduct is one of the potentially fair reasons for dismissal so any case would turn on whether the Tribunal felt that dismissal fell within "the range of reasonable responses" open to the Employer.

The right to privacy will not normally assist the employee - the case law suggests that where the comments are made on publicly accessible social media they are to be treated as being made in public, although there may be scope for interesting arguments on this point based on the privacy settings in the individual case and whether the employee had a reasonable expectation that the comments would be private.

Other considerations would be:-

  • the content of the online posting - for example the language used and whether this amounts to a criminal offence;
  • whether the Employee can be identified from the comment as being employed by the Employer. A comment which might otherwise be a private matter could justify dismissal if it is likely to bring the Employer into disrepute.
  • whether the comment might be regarded as making the Employee unsuitable for their job. For example someone in public service like a Policeman or a teacher may be in more trouble than someone who does not have a customer facing role.
Employers are well advised to get professional assistance before deciding how to react in these circumstances and a properly conducted investigation and disciplinary hearing will always be essential.