Age Discrimination
Most of the headlines on age discrimination have focused on the somewhat inflated pensions of lawyers at City Law firm Freshfields.
Former partner Peter Bloxham has brought a claim to the Employment Tribunal saying that the reduction in pension was forced on him to £175,000 per annum. His contention is that this amounted to an act of age discrimination, whereas Freshfields claim that it was a proportionate means of achieving a legitimate aim, saying effectively that their pension arrangements had become unworkable. The decision was reserved by the Employment Tribunal and a result is expected shortly.
Elsewhere Mrs Johns had her tribunal claim on age discrimination struck out. She had asked for her claim to be stayed pending a decision in the Heyday case which itself is a challenge to the statutory retirement age.
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Criminal Records Bureau
The recent bomb attempts at Glasgow airport and in London’s Regent Street seem to have highlighted a major fault in the Criminal Records Bureau process. The suspects in those incidents were disclosed to be Doctors working in the Health Service. Because of the possibility of working with children and vulnerable adults, all Doctors are subject to Criminal Records Bureau checks but these checks do not necessarily reflect offences committed outside of the UK. Intelligence information about individuals’ activity does not therefore necessarily find its way into the Bureau process.
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Consultation
The obligation to consult under the Information and Consultation Directive is in force and applicable currently to any enterprise employing more than 100 people. From April 2008 that will be 50. Where a company fails to provide data to determine whether the company is subject to the consultation regime it can be fined a maximum of £75,000 by the Employment Appeal Tribunal. In the recent case of Amicus v Macmillan Publishers Ltd, Macmillan Publishers were fined £55,000 with the EAT observing that it was not “difficult to form the impression that Macmillan was opposed to these regulations and seeking to delay the implementation for as long as it reasonably can”. The EAT therefore thought it needed to deter others from taking a similar cavalier approach.
The role of the Information and Consultation obligations has been very much under the spot light given the recent incidence of private equity bids for some of the biggest names in UK Plc. The TUC has been somewhat exercised about the Boots buy-out whereas locally to us concerns exist over the merger proposed between Saga and AA. Saga is itself a subject of an equity backed management buy-out with the staff having significant share options. The proposed merger with the AA is likely to see a windfall of £10,500 for every £250 invested. AA staff have not fared so well having seen their numbers reduced from 10,000 to 7,000 in the three years since it was bought by Permira and CVC. Saga chairman Andrew Goodsell has pledged to extend the share ownership scheme to the AA workforce.
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Corporate Killing
According to a report in the Times of 18th July 2007 a Chinese slave master responsible for the kidnapping and imprisonment of hundreds of children and impoverished workers has been sentenced to death. A brick yard employee was battered to death by his employer with a shovel. In mitigation the employer Zhao Yanbing said that the man’s performance was so bad that he thought he would frighten the employee a little bit, but did not expect to be confronted, so when he was, he slammed the shovel down on his head.
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Discipline and Grievance
The Statutory Discipline and Grievance procedures have been exercising employers and employees alike since they were introduced in October 2004. Some of the cases we discuss in this section of the Update will highlight the difficulties that exist. The statutory procedures were introduced as an attempt to simplify the dispute resolution framework. The Gibbons report suggested that the procedures were over complicated and now with the Employment Simplification Bill, the Prime Minster, Gordon Brown, has pledged to introduce a repeal of the statutory procedures. This attempt at simplification comes from a man who coined the phrase “neo-endogenous growth”!
In the case of Davie v Wastemaster Ltd, Mr Davie was apparently dismissed for being in breach of health and safety rules. He claimed that the dismissal was unfair because Wastemaster had not complied with the dismissal procedures. The Tribunal found that even if the procedures had been followed he would still have been dismissed within three weeks and limited his compensation to that period only. His basic award was reduced by 90%. The Appeal Tribunal upheld the reduction in the basic award, but remitted the case for re-hearing as the Tribunal had not made any proper findings of fact supporting this restriction on the compensatory award.
Elsewhere Mr Sahatciu brought a case against DPP Restaurants Ltd. Mr Sahatciu had deliberately encouraged a non-EU member of staff to work above the statutory limits despite being instructed to the contrary by his manager. Following a disciplinary hearing by that manager he was dismissed for gross misconduct. He claimed that the statutory procedures had not been followed. The EAT said that there was no need to be unduly pedantic in interpreting the requirements of the dismissal and disciplinary procedures and that Mr Sahatciu was well aware of the charges against him and that even if his dismissal had been automatically unfair he would not have got any compensation.
In the case of Harris v Towergate London Market, Mrs Harris was dismissed by reason of redundancy and raised a formal grievance ten weeks later. The company contended that the grievance procedure did not apply since she was no longer employed. She lodged a Tribunal claim almost six months later and it fell to the Tribunal to decide whether she was entitled to an extension of time for bringing her claim, on the basis that she had a reasonable belief that a dismissal procedure was being followed. The Tribunal dismissed her claim, but the EAT has remitted for a re-hearing saying that the correct test was to examine whether the claimant believed a dismissal procedure was being followed. That should now be as clear as mud.
In the case of Pinkus Mrs Pinkus was working for the Crime Reduction Initiative. She was called to a disciplinary meeting but resigned directly after the meeting and before proceedings had been concluded. She wrote to the head of the unit two months later saying she felt victimised and forced to resign and asked to go through the subsequent grievance procedure she was claiming constructive dismissal. Her claim was submitted after the three months period. The Tribunal had to decide whether she was entitled to a three month extension on the basis of the grievance procedures being current. The dispute resolution procedures do not apply if they relate to a grievance that the employer has dismissed or is contemplating dismissing the employee. The Tribunal dismissed her claim on the basis that her grievance was that the employer was contemplating dismissing her. This decision was overturned in the Appeal Tribunal holding that constructive dismissal was not covered by the meaning of dismissed.
In our view the confusion arises because the dismissal and grievance procedures are not mirror images of each other. If the period for submitting tribunal claims were to be harmonised, a lot of confusion could be avoided.
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Disability
In the case of Patterson v Commissioner of Police for Metropolis the Appeal Tribunal confirmed that a senior policeman with minor dyslexia was disabled. Chief Inspector Patterson had been with the Metropolitan Police for 15 years before discovering that he was dyslexic. Medical evidence suggested that he ought to be given 25% extra time in examinations, which was refused. Initially the Employment Tribunal decided that it should look at what the claimant could do rather than what he could not do and that because the dyslexia was trivial the claimant was not disabled. The EAT held that it should be a comparison between what the individual could do without the impairment which should be the determining factor in deciding whether somebody was disabled. The medical evidence that had said he needed 25% longer for an examination was enough to show that he was at a disadvantage compared with his position if he did not have dyslexia and he was therefore disabled.
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Equal Rights
Having established an Equality Commission the Government is consulting on the terms of reference for a single equality act. Consultation runs to 4th September 2007. In employment terms the major issues before consideration are
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European Union
The European Commission is pushing for a better work life balance and is consulting with workers and employers representatives on how to achieve this. Their investigations suggest that there is a gap in the employment rate between women with children and those without as high as 14.2%, with few men taking paternity leave. In addressing the European Association for Personnel Management, the EU spokesman is promoting a concept called flexicurity combining job security with flexibility. EU statistics show that fewer than 2% of Europeans live in another member state, suggesting a lack of mobility in the workforce.
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Health and Safety
We offer our usual link to the material prepared by Martin Moy at Mesh Consultants. We would also remind readers, if a reminder were needed, that the smoking ban in the workplace has been in force for a month now, and all premises must display an A5 poster with the no smoking logo.
Needless to say we are complying with this requirement to display the no smoking poster, but we have always operated as a no smoking office and not once has a client or visitor asked for permission to smoke.
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Immigration
Immigration and work permits continue to attract a great deal of interest. On the one hand well known Conservative MP Nicholas Soames has proposed the cutting of work permits and family reunion rules.
The Home Office is proposing legislation whereby employers who knowingly hire illegal workers could be made to serve a two year term jail sentence and pay an unlimited fine. At the same time the numbers of Polish workers in the UK is generating a skill shortage in Poland. International Accountants Grant Thornton report that 43% of Polish businesses believe that the lack of skilled workers was a barrier to growth in Poland.
The DTI has joined forces with the TUC to form a pilot project providing support for workers who may not be aware of their basic employment rights. Initially the project will be aimed at staff at the City of London and Tower Hamlets working as cleaners, security guards etc. The pilot intends to distribute information packs in a variety of languages and have drop in surgeries for those with employment problems.
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Employee Privacy
Not a development in Britain, but nevertheless of some relevance here, is the case of Catherine Sanderson who was working for accountancy firm Dickson Wilson. Catherine Sanderson was working in Paris for the firm and had developed a web log under PetiteAnglaise.com detailing expatriate life in the French capital. Once her company realised that she was publishing a web log they dismissed her without notice. Mrs Sanderson denied that the web log caused her employers any problems. She wrote under a pseudonym and never named her employers or their line of business. The Tribunal in Paris agreed with her and she was awarded a year’s salary by way of compensation.
Given the proliferation of web logs, employers will need to consider whether they should include this in their computer use policy and even then would need to be careful to limit it information that would identify the employer.
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Pay and Rewards
Locally to us Kent County Council has announced it has introduced to all staff, other than teaching staff, performance related pay. The Council will pay bonuses based on appraisal ratings between one and five. Each point awarded gives the employee a half point up the pay scale. A good rating of three would attract an increment of one point whilst a five would be two points. Given the need to demonstrate that bonuses are awarded fairly and openly managers will no doubt be under pressure to justify the ratings awarded in their annual appraisals.
On the subject of bonuses, it is reported in Pay Roll and Human Resources Journal that Tesco’s Chief Executive Terry Leahy is in for an allocation of two and half million shares currently worth £11.5million if their move to the US proves profitable.
In the medical sector it is reported by the BBC that over half of GPs earn more than £100,000 per annum, with one in ten earning in excess of £150,000 per annum. Before the new pay contract in April 2004, the average was £80,000. The BBC also report that Head Teachers earn between £38,559 and £95,631 depending on school size.
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Racial Discrimination
One of the biggest ever awards made in a racial discrimination case was that in the case of British Medical Association v Chaudhary, a decision overturned by the Court of Appeal. Dr Chaudhary had been awarded £814,877 for discrimination.
Dr Chaudhary had claimed that the BMA had not supported him in a discrimination case against the regulatory body that had turned down his promotion to Senior Registrar. The judgement can be read here.
Elsewhere Pauline Taylor succeeded in recovering £34,000 compensation from Benham General Engineering in the Employment Tribunal. She claims that she was referred to in a racially offensive way by her colleagues and also had BNP literature placed on her work station. The Company was ordered to provide diversity training for all Directors and Managers and if they failed to comply with that Mrs Taylor will be awarded further damages. She does not have to return to work until that training is complete. The Tribunal held that the Company was riddled with racists and racism from Director level to the production floor and required root and branch reform.
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Religious Discrimination
The Daily Mirror reported on a teacher’s tirade against Harry Potter. Teaching assistant and born again Christian Sariya Allan feared she would be cursed if she heard the pupil read from the JK Rowling’s best selling book. She told the pupil that she did not do witchcraft and made her read from a different book. Having been disciplined by the school, she resigned and claimed religious discrimination and unfair dismissal. At the date of going to press we do not know the outcome of this.
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Recruitment
Payroll and Human Resources Magazine also reported on the case of Intercontinental’s employee Patrick Imbardelli who resigned when his claims to have degrees from three Universities was discovered to be false. Clearly all statements in job applications and CVs should be validated by the recruiting employer. Repercussions can be enormous if falsehoods are subsequently uncovered. There is the possibility of a criminal offence having been committed and certainly in some sectors such as teaching, pensions may well be adversely affected.
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Sexual Discrimintaion
It was widely reported that Sarah Primmer who worked as a waitress in the Rendezvous café in Plymouth won compensation of £17,618 from the Tribunal. She gave evidence that she had been taunted about her red wavy hair during her employment and that her manager made numerous lewd and embarrassing comments to the point where she went for blonde highlights.
Also Sting and his wife Trudie Styler had to pay their Chef Jane Martin £24,944 compensation for sexual discrimination. She claimed that she had been dismissed by Trudie Styler for becoming pregnant. The Tribunal chairman was moved to comment that he was surprised that the Chef was claiming £10,000 for injury to feelings. According to Daily Mail reports the Chef was often forced to travel 100 miles to cook a bowl of pasta for the pop star’s young son and when she fell ill with gastroenteritis Trudie Styler raged “who the f*ck does she think she is”. The decision is being appealed by the employer.
Still on the subject of food, but perhaps less celebrity ridden, the House of Lords has allowed the appeal of the St Helen’s Borough Council dinner ladies’ victimisation appeal. The group of dinner ladies had argued that they were entitled to the same rates of pay as road sweepers, but received a letter from the Council saying that if successful the costs of claim would mean that school meal provision would need to be scaled back leading to a reduced work force. A second letter was sent to the Claimants urging them to settle. They argued that this amounted to victimisation. The Court of Appeal had held that the letters were an honest and reasonable attempt to compromise proceedings, but the House of Lords said otherwise saying that the object of the letters was to put pressure on the women and they were therefore being treated less favourably than staff not pursuing equal pay claims. For a report click here.
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Sexual Orientation
The Mail on Sunday reports at length on the case of Captain Jan Hamilton, a former male Captain in the parachute regiment who claims she was sexually discriminated against and unfairly dismissed. She had applied for a position as Head of Media Relations for the British Army but refused to turn up for a medical dressed in a male uniform. She claimed that it would be humiliating and demeaning. As Captain Ian Hamilton he had served in Iraq and Afghanistan and has opted for gender reassigned surgery. A full report can be read here.
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Sickness
After a period of decline sickness absences have now increased for the first time in two years averaging 8.4 days per employee. The CIPD also reported that 31% of employers had noticed a rise in workplace stress.
The CIPD also report that in a survey of 800 organisations, 42% had a well being strategy. The CIPD is also urging the Government to facilitate the establishment of Occupational Health Services in the workplace by appropriate tax breaks.
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Stress
The tendency of the Courts to limit stress claims has been very evident over the past couple of months. In the case of Deadman v Bristol City Council, Mr Deadman had developed depression after an allegation of sexual harassment against him. It was acknowledged that the investigation was bungled. The Court of Appeal held that handling complaints of harassment sensitively was aspirational, but did not form part of the contract of employment. Similarly it was not negligent of the employer to inform the Claimant of their decision by leaving a letter on his desk saying it was the contents of the decision rather than a full transmission that was significant.
In the case of McAdie v Royal Bank of Scotland the Court of Appeal upheld the Employment Appeal Tribunal decision relating to the fairness of a dismissal where the employee was on stress related sickness absence caused by bullying and mismanagement at work. The Court of Appeal said that although the incapacity might have been caused by the employer’s culpability it did not preclude them from fairly dismissing the employee, although they would be expected to go the extra mile to find alternative employment.
The management of stress and conflict in the workplace is the subject of a seminar Employment Relations are holding on 13th November with Psicon. One of the management tools that we shall be looking at is employee assistance programmes. Such programmes may offer counselling over the telephone, one to one sessions with a therapist on alcohol and drug abuse. The CIPD report that the average absence for stress is 21 working days and this is higher in the public sector.
Finally on the subject of stress and reported here with a chorus of approval is that holidays cause added stress for owner managers. Investors in People reported that one in seven owner managers worked an extra sixteen hours or more before taking time off. Investors in People recommend that managers can guard against the inevitable summer stretch by openly coordinating and discussing holiday dates and identifying potential pinch points.
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Tribunals
Employers may need to look again at the concept of workers and employees. In the case of Enfield Technical Services v Payne the EAT said that the fact that the parties had wrongly labelled the relationship in a way that had the effect of depriving the revenue of tax did not in itself render the contract unlawful.
ACAS initially reported a decrease in tribunal claims between 1st April 2006 and 31st March 2007 saying that Equal Pay claims largely multiple following pay evaluation exercises accounted for 6,359 cases before the tribunal in 2006/2007, against 14,147 the previous year. In fact they increased to 27,497 in 2006/2007. Unfair dismissal continues to be the most common area of dispute.
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TUPE
The Post Office is facing a wrangle on whether staff transferred to WH Smith would be subject to TUPE regulations. The Post Office insists that they do not have to transfer staff over to WH Smith because they have other alternatives available including redundancy. We await further developments.
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Working Time
Of keen interest to most employers will be the news that the Government is postponing at least part of the increase in holiday allowance until April 2009. Originally it was intended to increase holiday allowance to 4.8 weeks on 1st October 2007 and to 5.6 on 1st October 2008. This was to take account of statutory holidays. The second increase has been postponed until 2009 largely it is said because of cost pressures in the health and social sector. In other words the Government had failed to work out that they themselves were some of the worst offenders with their dealings in the social services sector.
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