Monday, December 05, 2016

A Case About The Office Christmas Party - Beating the Christmas Rush

At this time of year employment lawyers fall over themselves to put out guides to employers about the perils of the office Christmas Party and the legal liabilities that can arise as a result.

This is tedious and predictable and I am not going to do it.

What I will do instead is report on a High Court Judgment which has got in ahead of all the competition in this area.

Mr Bellman worked for Northampton Recruitment Limited. One of the owners of the business was his friend John Major (not that one.)

On 17th December 2011 the office Christmas Party took place at a Golf Club in Northamptonshire. At the end of the evening some of those present, including Messrs Bellman and Major, decamped to the Hilton Hotel where they continued to drink,

They were still going strong at 3.00 a.m.

At this point, no doubt considerably the worse for wear, Mr Major launched an unprovoked attack on Mr Bellman. This caused Mr Bellman to suffer extremely serious brain injuries. He is highly unlikely to ever work again and had to have a Litigation Friend for the proceedings as he no longer had capacity to make decisions.

Mr Bellman sued the company for damages for his injuries. Mr Major was originally a Defendant but the Claim against him was not pursued as it was concluded that he would not be good for the money.

Astonishingly the CPS decided not to prosecute (Mr Bellman having said he did not want to get his friend into trouble, but his vulnerable state at the time of making that comment appears to have been overlooked) although this was subsequently overturned following a complaint.

The company resisted the Claim on the basis that Mr Major was not, they said, acting in the course of his employment when the incident occurred.

The High Court, whilst it had considerable sympathy for Mr Bellman, agreed.

The question of whether something occurs in the course of employment is a question of fact in every case.

Whilst the context here was that the incident followed the office Christmas Party (and it is well established that incidents which occur at work-funded or work-organised events can give rise to liability, even if they occur well away from the workplace), the actual assault had followed an extended drinking session that was at a different venue from and not part of the actual Party.

The conversation had turned to work just before the assault but the general context of the drinking session had been social and although in one sense as a manager Mr Major was always engaged with consideration of what would further the interests of the company this did not mean that he was permanently "on call" and therefore that everything he did was in the course of his employment.

Looking at all of the circumstances, there was insufficient connection between the assault and Mr Major's employment to make it appropriate for liability to arise.

This is a first instance decision and it may yet be appealed.

It should be borne in mind that this does not mean that employers cannot be liable for incidents that happen after the Christmas Party.

Wednesday, August 10, 2016

Harassment In The Workplace - Still A Problem

The TUC has issued a Report , in association with the Everyday Sexism Project, which demonstrates that sexual harassment in the workplace is still a major issue.

More than half - 52% of women surveyed stated that they had experienced some form of sexual harassment related to work. 80% of these incidents had occurred in the workplace itself, although harassment also occurred on social occasions such as at Christmas parties .

The most common behaviour experienced was hearing comments of a sexual nature about other women (or women generally), which was reported by 35% of respondents. Worryingly, however, more than 10% stated that they had experienced attempts at what would amount to sexual assualt and more than a quarter reported incidents of inappropriate touching (e.g. on the knee or lower back but not "intimate" areas.)

79% of those affected had not reported the matter to their employer. Of those who did, more (16%) considered that they had been treated worse by their employer after the incident than thought that they had been treated better (10%.)

9 out of 10 of the perpetrators were male and 1 in 5 was the employee's direct manager or report.

7% had experienced harassment in the workplace by third parties such as customers.

The Report stresses that even if perpetrators think that what they are doing is "just banter", if the conduct is unwanted then this is no defence and that it creates an intimidating and unacceptable atmosphere for employees regardless of whether there is any malice.

Among the recommendations are the abolition of Employment Tribunal Fees, the reintroduction of statutory discrimination questionnaires and the reversal of the repeal of the legislation potentially making employers liable for harassment by third parties. Given the Government's view that Tribunal Claims are a burden on businesses it is highly unlikely that any of this will happen in the foreseeable future.

Employers are liable for harassment by their employees where this is in the course of their employment (which is likely to include where it occurs at work related social events) subject to there being a defence if all reasonable steps have been taken to prevent the harassment. Quite apart of course from legal liability potentially arising (for unlimited amounts, including significant compensation for injury to feelings) employers will want to have a suitable working environment for their employees and will not want to lose good employees who are unable to put up with this sort of behaviour.

Employers should:-

  • Make clear that a culture of harassment or sexual "banter" is not permitted.
  • Have a written Equal Opportunities Policy making clear what sort of conduct will not be tolerated and ensure that employees are aware of the contents of the Policy.
  • Actually enforce the Policy.
  • Provide training where appropriate, especially to managers.
  • Ensure that complaints about sexual harassment are always taken seriously.     

Tuesday, May 17, 2016

Christian Wins at the EAT!

There has been a developing narrative over recent years of Christian groups alleging that believers are discriminated against in the workplace.

Analysis of the individual cases in question generally does not support this claim and the Employment Appeal Tribunal has now handed down a Judgment overturning the first instance decision and deciding that  a devout Christian WAS discriminated against.

Mrs Pendleton was a teacher with an unblemished record. Unfortunately, her husband, who was Head of another local school, was found to have made indecent images of children and also to have indulged in illegal voyeurism. He went to prison.

There was no suggestion that Mrs Pendleton was in any way involved in her husband's activities and she was completely unaware of them until his arrest.

Mrs Pendleton was a Christian and she regarded her marriage vows as sacrosanct. She went on sick leave from school but made clear that as long as her husband showed that he was repentant she intended to stay with him, having made a commitment before God "for better or worse."

She was informed that if she remained with her husband there would be consequences and, in terms, was given the choice between ending the relationship with her husband or facing disciplinary action. She made clear that she did not wish to give up her job but was not prepared to leave her husband.

As a result she was suspended and asked to attend a disciplinary hearing on the basis that her actions "do not uphold trust in the profession."

She was summarily dismissed and this decision was upheld on appeal.

Mrs Pendleton brought an Employment Tribunal claim for Unfair Dismissal and for indirect religious discrimination. She said that the employer was imposing a policy, namely a requirement that employees end relationships with sex offenders, that put Christians (who believe in the sanctity of marriage) at a particular disadvantage and that the practice was not a proportionate means of meeting a legitimate aim.

The Tribunal found the dismissal to be unfair. The decision making process had been inadequate and the reason for dismissal was not sufficient to justify dismissing an innocent employee with a clean disciplinary record.

The discrimination claim was rejected - the Tribunal said anyone who stood by their partner would have suffered the same fate and that it was also entirely possible that a religious person could have chosen to leave their spouse in this situation despite the marriage vows.

Mrs Pendleton appealed to the EAT. There is a benefit to doing so given that the cap on damages in an Unfair Dismissal case does not apply to a discrimination claim and damages for hurt feelings are also available.

The EAT upheld the appeal. They considered that even though the situation had not arisen before it had clearly been demonstrated that there was a practice or policy of the type which the Claimant alleged.

The Claimant as a religious believer was placed at a particular disadvantage even if some non-believers might have chosen to "stand by their man" as well. It was also no answer to the claim that some believers might have left their spouse if he did not repent.

Having found that there was therefore on the face of it indirect discrimination the EAT considered whether it should send the matter back to the Tribunal or make its own decision, and decided upon the latter. The policy was not a proportionate means of meeting a legitimate aim. The Claimant had been discriminated against.

This illustrates that religious discrimination cases are very fact-specific and need to be carefully analysed. Some you win, some you lose.

Wednesday, March 02, 2016

Assaulting Customer Found To Be Part of the Morrisons Experience After All

A couple of years ago I commented on a case where Morrisons were found by the Court of Appeal not to be liable to a customer who was physically assaulted by a member of staff at their petrol station in Small Heath.

The Supreme Court has now in fact overturned that decision and has held that Morrisons were liable after all.

Sadly the victim, Mr Mohamud, had died of unconnected causes in the meantime so the case was being continued on behalf of his Estate.

His legal representative argued that the Courts should apply a broader test of whether an employer was liable for the actions of an employee that the "close connection" test which has been laid down in previous cases, and should in fact look at whether a reasonable observer would consider the employee to be acting as a representative of the employer at the time.

After a detailed review of the law, Lord Toulson in his leading Judgment held that there was nothing wrong with the "close connection" test - it had simply been wrongly applied in this case. The fact that the assailant had come out from behind the counter did not mean that he had "metaphorically taken off his uniform." There had been an unbroken sequence of events commencing with him being abusive from behind the counter and it was right in that situation for Morrisons to be liable, even though they did not condone his actions.

The Supreme Court gave Judgment in another similar case at the same time, where they agreed with the Court of Appeal that the Prison Service was  liable when a prisoner dropped a sack of rice on a member of kitchen staff's back while they were both working in the prison kitchens.

Cases of this type are all about the allocation of risk and who should bear it. Where an innocent member of the public has been harmed there will always be a temptation to decide that the liability is most fairly borne by the employer, especially when employer's liability insurance is compulsory.    

Monday, February 15, 2016

Lay Me Off/ Lay Off Me!

The Employment Appeal Tribunal has held that a contractual term allowing an employer to lay an employee off due to lack of work is not subject to an implied requirement that this be limited to a reasonable time.

Mr Craig worked in Computer Aided Design. He had been laid off due to shortage of work by his employer a couple of times during the 10 years that he had been employed by them.

He was laid off again on 21st July 2014.

On 22nd August 2014 he emailed the employer to say that he had got another job starting on 1st September and stating that as he had been laid off for 5 weeks he assumed he was entitled to a Redundancy Payment.

The employer emailed him back the same day and said that it hoped to have work for him shortly and had no intention of making him redundant.

Mr Craig relied upon his initial email as being a resignation and claimed constructive unfair dismissal.

To succeed with a Claim he had to prove that there was a fundamental breach of contract by his employer.

His contract contained an express power to lay him off. He argued that there was an implied limit on this to a reasonable period. There was a previous EAT decision that supported this assertion but a later EAT decision in Scotland went the other way.

The Employment Tribunal rejected his Claim, finding that there was no such implied term and that they were not convinced that the duration of the lay off had been unreasonable anyway.

The EAT agreed. It preferred the later of the two previous decisions. There had been no breach of contract by the employer.

This does not mean that an employer can lay someone off indefinitely. Part of the reason why Mr Craig lost is that there are detailed statutory provisions which lay out the circumstances in which an employee who has been laid off for more than 4 weeks can serve notice to claim redundancy. These allow the employer to serve a counter-notice within 7 days if they expect to have enough work for the employer to work full time for at least 13 weeks starting within the next 4 weeks.

Here, the email in reply from the employer had been the necessary counter-notice.

Given the existence of that statutory scheme it cannot have been the intention of Parliament that an employee could bypass the provisions and claim constructive dismissal, which would potentially lead to them receiving more than they would get on a redundancy.

The decision does not give all employers carte blanche. If there is no express contractual right to lay off, one will not be implied automatically. The decision also makes clear that if the actions of the employer in laying someone off are in some other way a breach of contract (for example singling someone out for an unfair  reason so that there is a breach of the implied term of trust and confidence) there could still be a constructive dismissal Claim.          

Thursday, January 14, 2016

Your Employer Is Watching You

There has been a lot of media publicity in the last day or so about a Judgment of the European Court of Human Rights confirming that an employee's human rights were not breached when his employer accessed his personal messages on their electronic systems.

In fact this decision will not have come as any great surprise to employment lawyers in the UK.

The Romanian gentleman in question complained that the Court in his home country should not have admitted evidence about the personal messages when ruling on whether he should have been dismissed by his employer because of them. This was on the basis that the employer accessing the messages was a breach of his right to privacy.

The ECHR found that the right to privacy was engaged but had not in fact been breached in this case as the actions of the employer were a proportionate interference in those rights. An employer has a legitimate interest in, amongst other things, ensuring that an employee is working during working time.

The decision was influenced by the fact that the employer was relying on the existence of the messages rather than the details of their contents. It was also relevant that the employer had accidentally come across them rather than seeking them out.

This fits in with the general approach that an Employment Tribunal would be likely to adopt in this country.

The Judgment should not be regarded as giving employers carte blanche to review intimate personal details of an employee. An employer would not, for example, in all likelihood, be entitled to insist on seeing details which were on the employee's own electronic device (although they could still discipline an employee for spending time on it when he or she was supposed to be working.)

To try and avoid disputes about this employers are well advised to have clear written Policies which explicitly forbid personal use of company electronic equipment and which state that the employer has the right to monitor all communications using such devices.