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We wish all visitors to this update everything that they would wish for themselves for Our February Update takes a look at various developments so far this year. The pace of change has certainly not slackened and our best guess is that the current recession is likely to result in significant numbers of tribunal cases and legislative tinkering. We have been asked to advise during the past month on issues as diverse as minimum wage, age discrimination, whistle blowing, performance management and, inevitably, redundancy. Interestingly a Government funded review of small firms showed that small businesses chose not to use Government advice, preferring to use external advice from their own solicitors or HR specialists. Naturally we are not surprised, but anyone who doubts this finding can read more here.
Our monthly Breakfast Forums are proving a success, enabling employers and HR Managers to meet, discuss matters of mutual concern, as well as being updated on a topic of current interest. More details can be seen here.
Bullying & Harrassment
Cyber bullying is an area of real concern for us because if companies have no policies on internet use or abuse they may find it difficult to escape liability for the actions of their staff. Following a report in the Daily Mail companies may also want to consider how they define bringing the company into disrepute. Waitrose staff had been contributing to a Facebook page entitled “Waitrose isn’t a supermarket it’s a state of mind” with abuse logged against customers such as “dirty old loon”, “pikey” with one employee confessing his lust for a customer with “great massive natural bristols”.
This follows a report, also in the Daily Mail, where staff posted Facebook comments of Tesco customers suggesting they smelt, were stupid, rude and moronic.
Meanwhile another prominent retailer, Marks & Spencer was accused of corporate bullying for dismissing a member of staff for misuse of a discount card. The discount rules had changed whilst she was off sick and she claimed not to have been aware of this.
Criminal Record Bureau
The House of Lords has decided in the case of R v Secretary of State ex-parte Wright and Others that the current handling of the POVA (Protection of Vulnerable Adults) is unlawful. Those working with vulnerable adults or children can be put on a list held by the Secretary of State which leads to a ban from employment by another care provider. The House of Lords held that this was inconsistent with article 6 of the European Convention on Human Rights i.e. the right to a fair trial.
It is our view that this case will also have a profound effect on the handling of teacher disqualifications as they too can find themselves unable to earn a living until their name is cleared.
In the Baby P case the Director of Human Services at Haringey Council has been refused reinstatement following an internal appeal. This too is the sort of case for which the POVA decision may have ramifications.
Discipline & Grievance
Just a reminder that the statutory discipline and grievance procedures go with effect from April 2009. After that there will be no absolute obligation to follow set procedures but employers handling dismissals will still be judged according to the Acas code of practice. Failure to follow the code of practice may still result in 25% uplift to compensation.
One of the effects of the statutory grievance procedures, was that employees had to follow an extremely formulaic process to demonstrate that they had lodged a grievance before being able to bring a tribunal case. That now goes and employees will be able to launch tribunal claims without having to follow any grievance procedure. However, the failure to do so may result in a reduction in tribunal compensation up to 25%. To be on the safe side, employers should treat any complaint from an employee about his or her job as a potential grievance. That also extends to complaints about the behaviour of colleagues.
Disability
In the case of Eastern & Coastal Kent PCT v Grey the Employment Appeal Tribunal was asked to rule on the issue of reasonable adjustments, in this instance for a job application. Mrs Grey was dyslexic and the appeal tribunal ruled that the employer was exempt from the duty to make adjustments if each of four matters could be satisfied being:
- Does not know that the disabled person has a disability;
- Does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
- Could not reasonably be expected to know that the disabled person has a disability; and
- Could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
Whilst the case may represent good law on the particular facts, we are strongly of the view that this will be challenged at some point. Dyslexia presents with a very real set of problems but would be largely invisible unless drawn to the attention of the prospective employer. That may not be the case with other groups of disabled and if the fourth test was replaced with “could not reasonably be expected to know that a disabled person” (rather than the specific applicant) then different conclusions might well be reached. Think disabled access for example. Certainly with job applications it would be wise to solicit any details of disability with the job pack so that arrangements can be made.
Health & Safety
We are indebted to Martin Moy at Mesh Consultants for the link to his Health & Safety Update. In his January Update he deals with the new Health & Safety (Offences) Act which came into force on 16 January as well as an interesting case on the burden of proof in Health & Safety prosecutions.
Religious Discrimination
As many people will be aware, Professor Richard Dawkins has assisted in driving sponsorship for a bus with the advertising slogan “There is probably no God”. This provoked the response from bus driver Ron Heather in Southampton that he would not drive a bus carrying this advert. The BBC reports that his first reaction was shock horror. The adverts are currently running on a total of 800 buses.
The Independent reports that a Yasmin Rehman, of whom we have written earlier has dropped her claim for race, religius and sex discrimination and has stepped down. What is not reported is whether any compromise was reached.
Sickness & Holidays
The Times on 28th January 2009 reported that the former MD of Cheltenham District Council was being sued in the High Court for £982,000 by her former employers. It is said on behalf of the council that in her pre-employment questionnaire, she answered “no” when asked “do you consider yourself disabled?” and “yes” when asked if she enjoyed good health. The council are claiming that she had a history of depressive illness that required time off work. It is far from clear whether the council undertook a full occupational health check when employing her but, if not, there may be many who said that the council had only itself to blame for the situation that it find itself in.
In the case of Stringer and Others v HMRC the European Court of Justice held that a worker on long term sick leave is entitled to holiday accruing during sickness absence which inevitably can only be taken after a return to work. The judgement relates to holiday leave accruing during sickness absence and does not, we believe, offer any possibilities for claiming sick pay if taken ill when on holiday. If the employee becomes sick then that is simply tough luck.
Since 1st October 2007 an increase in the minimum statutory holiday to which workers are entitled has been being phased in. The phasing in ends on 1st April 2009.
In general terms, a full time worker working 5 days a week was entitled to a minimum of 20 days paid holiday before October 2007. Since 1st October 2007 he or she has been entitled to a minimum of 24 days and as from 1st April 2009 will be entitled to 28 days.
The precise position in any particular case is more complicated than the above simple outline suggests. For example, account has to be taken of when the individual's leave year starts and of any part time working or irregular hours worked. Technically the position is that the minimum statutory entitlement to paid holiday is 5.6 weeks from 1 April 2009 (which works out at 28 days for a full time employee).
Important detail points to note include that it is possible, if employer and worker agree, for any unused part of the new additional holiday to be carried forward. Carry-forward in respect of any untaken part of the basic 20 days annual holiday is not permitted as that is a minimum health and safety requirement imposed by the EC Working Time Directive.
It is also important to note that the 28 days includes bank and public holidays. One result is that full time employees who previously, before the new rules came into operation, had the minimum 20 days annual paid holiday plus 8 bank holidays as paid holiday may see no difference.
There is a useful Holiday Entitlement "calculator" available on the government's BusinessLink website.
Redundancies
Newspapers and professional magazines are full of reports of job losses and perhaps no great purpose is served in us highlighting any particular announcement. However, unemployment rose by 137,000 in the last quarter of 2008 with the Chartered Institute of Personnel Development forecasting a further 600,000 job losses during 2009. The British Chambers of Commerce, according to a report in the Guardian are forecasting unemployment figures of over 3,000,000 by the end of the year.
Sexual Orientation
Steven English, a married heterosexual with teenage children won a case for discrimination on the grounds of discrimination due to sexual orientation. He was the victim of homophobic banter even though his workmate knew he was “straight”. The Solicitors Journal said that the judges expressed some unease about the judgement but felt that a case for harassment had been made out on the facts.
Elsewhere, Christian counsellor Gary McFarlane is reported by the Independent as being about to take the charity Relate to a tribunal having been allegedly sacked for refusing to work with same sex couples.
Tribunals
According to the Times Sheikh Maher al-Tajir told his Gamekeeper that he could buy the law. Mr Mulqueeney brought a claim for unfair dismissal against the Sheikh who is not attending the hearing. According to evidence given to the tribunal in Aberdeen, the Sheik told Mr Mulqueeney that the British Law worked on money not justice and vowed to stitch up an employee who dared to challenge him.
Elsewhere, law firm Express Solicitors are reported in the Law Society Gazette as facing a possible £25,000 pay out for having dismissed a trainee solicitor for gross misconduct without seeking approval from the solicitors regulation authority.
Employers should note that from 1st February the compensation limits for tribunal claims was increased to £66,200 for the compensatory award with a week’s pay calculation for the basic award being increased to £350. There is, of course, no limit on the compensatory award if the dismissal is linked to discrimination or whistle blowing.
The Guardian on 7th January 2009 reported that Mona Awad, a 29 year old corporate manager with HBOS is claiming £16.7 million for compensation for sexual, religious and racial harassment. The outcome is not known but we believe the speculated award is firmly rooted in fantasy.
Elsewhere, the Telegraph reported that a British Military policeman was moonlighting by working as a prostitute. The Telegraph reports that Lance Corporal Rebecca Smith was caught by her superior using a work computer to update her details on a bi-sexual website.
Tupe
The current business climate means that there may well be a number of amalgamations or transfers of outsourced or contracted out services. In a highly technical case of Amicus and TGWU v Glasgow City Council, the obligation is to consult. Consultation is required under the acquired Rights Directive if the employer envisages measures in relation to an affected employee in connection with the relevant transfer. In the Amicus case, the point to be decided was whether the new employer had an obligation to consult after the date of the transfer if measures were being contemplated. The Appeal Tribunal ruled that the consultation requirements ceased at the date of the transfer.
Whistleblowing
The BBC reported that a rail worker won £200,000 in compensation having been sacked after blowing the whistle on a manager who asked him to lie about an accident.
We ourselves won over £165,000 for a whistle blowing award in the case of Topliss –v- NCP Services. An employment tribunal judge ruled that a former NCP Services Ltd employee was sacked for making disclosures about NCP defrauding the DVLA of over £1m in a contract to impound and scrap untaxed vehicles on behalf of the DVLA.
Tribunal judge John Warren awarded former NCP Services Ltd employee Geoff Topliss, from Canterbury, Kent, over £165,000 in compensation and costs for unfair dismissal.
In his judgement published last week, Judge Warren said NCP had claimed they had to dismiss Mr Topliss because the DVLA had requested he “be removed from the contract and there was no other work for the claimant.” But Mr Warren added: “We look at what the DVLA have said in writing…It does not say that the DVLA wish the Claimant to be taken off the contract.” To suggest that it was an innuendo in the DVLA’s correspondence with NCP was “frankly fanciful in this Tribunal’s view”.
Mr Warren continues: “We commonly conclude that the real reason for terminating Mr Topliss’s services was the fact that he made those disclosures…”
Immigration & Work Permits
The government has drafted extra judges into hearing immigration appeals to deal with a huge backlog. The backlog of immigration appeals has meant that other cases in the system had become seriously delayed. According to a report in the Times, the backlog of appeals is now around £3,500. What is not being discussed at the moment is the number of asylum applications still awaiting processing.
Maternity
As we mentioned in our last update, the extension to maternity leave has been delayed until April 2010, but maternity benefits are extended. Staff on maternity leave are entitled to the full range of company benefits throughout the period of leave. This does not apply to pay, but it means that there is no break in service when assessing pensions, holidays, bonus entitlement, etc.
Racial Discrimination
According to a report in the Independent, the British refugee counsel has been ordered to pay £30,000 in compensation after a ruling of unlawful discrimination having sacked the only two black people working at an immigration centre. The case followed a re-organisation where redundancies were being considered for the Oakington office.
The head of the Equality & Human Rights Commission, Trevor Philips, has said that the climate on discrimination has improved significantly over the last decade with over the half of the public believing that the UK will have a non-white Prime Minister within the next 20 years. He has also said that the police should no longer be regarded as institutionally racist. His comments come on the 10th anniversary of the Stephen Lawrence report. At the same time, we have the Scotland Yard Commander Ali Dizaei commencing his proceedings for discrimination against the Metropolitan Police and a report in the Evening Standard saying that a police constable in Southwark, Joe Cutting, who was suspended after it was found that he featured as a BNP member has been restored to office after an enquiry found no evidence.
Formula One boss, Ron Dennis, was the subject of a claim for discrimination brought by a steward, Peter Boland, on his private jet. The Times of 14th January reported that the Steward had dropped his claim and apologised for having made the allegation.
Pay
Not all is doom and gloom on the pay and benefits front. The 2007-8 civil superannuation resource accounts, which we are sure you are familiar with, shows that male civil servants can expect to draw inflation linked pensions for an average of 29 years on retirement at age 60. It is estimated that the contributions to civil service pension schemes amounted to £4.58 billion during that tax year with contributions to the teachers’ pension scheme amounting to around £6.7 billion.
Meanwhile, People Management magazine reports that bonuses are set to continue despite the economic downturn but targeted at smaller numbers of high performers.
HR professionals at a round term forum organised by AXA, the insurance giant, suggested that debt counselling is a sensible facility for companies to make available as those struggling with debt are unlikely to be able to concentrate on work. At least AXA should know as in the last week they have announced restructuring plans that could lead to 350 job losses in offices in Bristol, Coventry and Basingstoke, according to newspaper reports.
