Age Discrimination

The Age Positive website has published guidance for employers. To see more click here. Given that anti-discrimination provisions are part of the EU’s Equal Treatment Framework Directive it is usually instructive to look elsewhere to see how provisions are applied. In the case of Mangold – v- Rudiger Heln the European Court of Justice held that fixed term contracts for older workers amounted to discrimination. Whilst it is unlikely to be directly comparable with work practices in the UK it is not difficult to envisage a situation where, once the regulations come in, a 65 year old looking to continue beyond that age is offered a fixed term contract, say a year at a time, by his employer. Any such offer would have to be capable of objective justification.    

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Alcohol Abuse

Those sober days after the Christmas holidays when staff are all trying hard not to remember what happened at the Christmas party, affords an opportunity to consider alcohol abuse in the workplace. In an article published before Christmas by the Workplace Law Network, estimates provided by the charity Alcohol Concern suggested that between 10 and 17 million working days are lost each year because of excessive drinking (not just this office). The charity further suggests that there is a growing belief amongst employees that it is acceptable to go to work with a hangover, with 35% of women taking this view against only 26% of men. It is proposed by the charity that there should be direct policies on alcohol consumption particularly where health and safety is a critical issue. If an employee is unfit to work because of alcohol then the employer does have the right to send the employee home without pay. However, companies should be making their policies clear and monitoring performance. If an employee is suffering an alcohol related illness then counselling should be available.

There is perhaps a tendency to concentrate on the problems attached to consumption of alcohol but clearly or equal concern to employers is where employees may not be fit to work through drug use. It is unlikely that employers would be entitled to introduce random drink or drugs tests unless the industry is safety critical. However, as with all people management the particular trick is to be consistent. If the head of department is seen to come back from lunch the worse for wear or is known to disappear to the toilets for a bit of substance abuse then other staff cannot be treated less favourably. An attempt to impose disciplinary sanctions may well backfire. Companies need to set out their positions and stick by them.    

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Bullying and Harassment

NHS Trusts have been ordered by the Healthcare Commission to adopt a zero tolerance approach to bullying and harassment. The call comes after reports were published by the NHS watchdog into allegations of bullying and harassment at East Sussex Hospitals NHS Trust and Devon Partnership NHS Trust. 16% of staff reported being harassed or bullied at work by managers or other colleagues. The head of Workplace Health and Employment to NHS employers said “widespread bullying and harassment is a problem in a very small minority of NHS Trusts but no-one should have to put up with bullying and harassment at work.”

In a case reported of a hearing at Bury St. Edmunds a St.Ives man who claimed to have been driven from his job by bullying was held not to be unfairly dismissed by the tribunal. However, the tribunal held that his employer’s policies left much to be desired and found that there had been unacceptable bullying behaviour.

If it was not difficult enough to bring a successful claim for bullying and harassment, a woman whose claim for sexual harassment was dismissed against Dundee City Council has been awarded a new hearing because one of the tribunal panel had fallen asleep at intervals during her case.

According to reports on BBC News the TUC’s survey estimates that some 18 million working days per year are lost through the effects of workplace bullying. ACAS has set up an on-line tutorial for managers. To see more of this click here.    

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Trade Unions

In a case commencing this week in the tribunal at Newcastle, Asda is facing the prospect of a significant award for discrimination against trade union members. The case arises because Asda is accused of breaching provisions preventing employers offering inducements to workers who forgo collective bargaining through their Trade Union. The GNB regional officer alleges that a revised pay and benefits package offered to the workforce was conditional on surrendering collective bargaining.

The about-to-be privatised Royal Mail had been proposing to offer employees shares. However, a report by the Trade and Industry Committee of the House of Commons has attacked the plans as being incoherent and incomplete. The Chairman of Royal Mail Allan Leighton, wants to give 20% of the company to its staff.

The Court of Appeal in November referred a decision to the European Court of Justice on the right to organise collective action across European borders. This development has been much welcomed by the TUC, whose press release can viewed here.

Solicitors firms themselves can have problems with trade unions. The staff at trade union firm Thompsons are about to vote on strike action having rejected two pay offers from the firm.    

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Data Protection

In an article published on the Workplace Law Network by Pinsent Masons Solicitors, the issue of references in the context of data protection was addressed. References received from third parties would not normally need to be disclosed, it is suggested, if they are received by post. However, the position is substantially different if the reference is received by e-mail as they are clearly electronically stored. We have to say that we think their view of the data protection position is spot on. Help for those believing in transparency may be on the horizon as the European Commission has threatened action against the UK Government for failing to fully implement the Data Protection Directive.

The Information Commissioner has published guidance on how Data Protection applies to the use of CCTV. A basic CCTV system may no longer need any Data Protection regulation. By way of example, small retailers who have only a couple of cameras who can not move them remotely and only give the recorded images to the Police to investigate suspected crimes would not need to be regulated. However, if they were used for surveillance on staff, then these would be covered. It may also require regulation if the cameras can be operated remotely to zoom in or out to pick up what particular individuals are doing.

A warning has also come from an email management company about the impact of the Data Protection Act where companies allow or turn a blind eye to personal use of the company’s email system. 98% of staff they surveyed used the company’s email server to discuss social life, 90% used it for jokes and humorous emails and 74% organised birthday parties and stag nights. The particular difficulties are that those then are personal data, which the company implicitly is storing on its system.    

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Discipline and Grievance

The Statutory Discipline and Grievance procedures have been in force for over a year now, and the first cases involving the interpretation of them by the Tribunals are beginning to come through. In the case of Shergold v Fieldway Medical Centre, the Employment Appeal Tribunal held that a detailed three page resignation letter, setting out the facts giving rise to the resignation did in fact qualify as a grievance and that no further steps needed to be taken by the Claimant which would constitute a statutory grievance. The Appeal Tribunal held that it made “no difference at all” provided the complaint was set out in writing. All that is necessary was that the Employer can understand the general nature of the complaint being made.

In another case Commotion Ltd v Rutty, Mrs Rutty made a formal request for a variation to her work patterns under the flexible working entitlement in section 80f of the Employment Rights Act. The Employer refused the request, and she resigned and claimed constructive dismissal. The Tribunal were satisfied that the request itself constituted a formal grievance.

By contrast a questionnaire served under the Equal Pay Act does not constitute a grievance, as a questionnaire is specifically excluded from the Dispute Resolution Regulations. That was decided in the case of Holc-Gale v Makers UK Ltd.

Similarly a letter written suggesting a cash settlement following a disciplinary process instituted by the Employer does not constitute an Appeal under the Disciplinary Procedures. The Appeal Tribunal have indicated that they will take a rather more robust view to what constitutes an Appeal on disciplinary hearings than what constitutes a grievance. The case was Piscitelli v Zilli Fish Limited .

Looking overseas, the German firm Nutzwerk has instituted procedures where employees face dismissal if they complain more than twice. The contract of employment says that “moaning and winging is forbidden except when accompanied with a constructive suggestion as to how to improve the situation”. Apparently three staff so far have left due to the new policy. We would not actually suggest that a similar restriction would work in the UK!    

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Disability

As most people are aware there have been changes to the Disability Discrimination Act. The most significant of those involve the definition of Disability. From 5th December 2005, the Act covers, from the point of diagnosis people with HIV, Cancer or multiple sclerosis. It had been anticipated that certain types of cancer might be excluded from the definition, but it has been announced that following a review, all forms of Cancer will be included. Also from 5th December, the requirement for mental illness to be clinically well recognised has been removed.

A Scottish decision perhaps indicates the way that the Courts will look at disability from now on. In the case of Millar v Board of Inland Revenue, the employee had various difficulties for which doctors could not find a physical cause. The employee was sacked for unsatisfactory attendance but he claimed disability discrimination and unfair dismissal. The Court of Session in Scotland ruled that it was not necessary to consider how an impairment was caused before an individual came within the definition of disability. What was required was to test the impact on the individual’s day to day activities.

Another Scottish case dealt with the amounts that a Tribunal could award for injury to feelings. The case involved an individual applying for work as a Security Officer, but disclosing depression in the application form. His application was rejected. Although the Tribunal found that he was under-qualified for the job and that his application had not been made wholly in good faith, they awarded £500. The Claimant appealed saying that the award should have been £2500. The Appeal Tribunal disagreed.

Elsewhere a social worker who was dyslexic succeeded in negotiating an out of court settlement having commenced a case against Hampshire County Council who she says had blocked her move to a £30,000 job with Wokingham District Council, by virtue of an offensive reference. It was said that her manager had written that “her communication and writing needed to be developed”, whilst another wrote that there was a “need for additional support in written work”. The social worker in the case suggested that it was like telling someone in a wheelchair that they need to walk.

In another case on recruitment, a man who was rejected for a sales job with Churchill’s Stairlifts won an award having taken his case to a Tribunal with the support of the Disability Rights Commission. Mr Smith suffered from Lumbar Spondylosis leaving him with difficulty working and carrying heavy objects. He was successful at interview, but before training started, the company decided that sales staff would need to carry models of their radiator covers and that Mr Smith would not be able to do this because of his impairment. At the Tribunal and the Employment Appeal Tribunal he lost his case because the Tribunal found that the majority of the population would not actually be able to lift the sales aid and so he was not placed at any disadvantage. The Court of Appeal not surprisingly robustly overturned this and said that the approach taken was wrong. Mr Smith had suffered a detriment because he failed to get the job and this was directly related to his disability. The Court of Appeal ruled that Churchill should have attempted to investigate adjustments.    

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Equal Opportunities

The Equal Opportunity Commission has published its annual report, Sex and Power: Everyone’s Britain 2006 which finds that women make up only 20% of MPs and 9% of the senior judiciary. In fact according to a report in the Independent, the number of FTSE 100 companies with female executive directors fell during 2005. According to the EOC report, the UK out ranked by Rwanda, Iraq and Afghanistan in terms of female representation in the legislature. The full report can be access here.

In Equal Pay claims one of the defences available to Employers is to claim that there is a genuine material factor which justifies the difference in pay between people who may be doing work that at first sight appears of equal value to male comparators. An example would be particular skill shortages or market based differentials. However in the case of Sharp v Caledonia Services Ltd, the Appeal Tribunal adopted the European Court of Justice approach that some objective justification is required. Permission has been given for an Appeal to the Court of Appeal.

Shortly after this Appeal Tribunal decision the Court of Appeal themselves considered the ‘genuine material factor’ defence in the case of Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust. In that case female domestic ancillary workers claimed parity with porters who, for historical reasons, received bonus payments that the domestic workers did not. The Appeal Court affirmed the previously understood legal position that the differential treatment had to be tainted by sex discrimination. However, it is noteworthy that the Appeal Court did not refer to European decisions which implement the Equal Treatment Directive and the likelihood is therefore that the decision will be challenged.

In Scotland, hundreds of school dinner ladies have threatened to walk out in a claim for equal pay. Again the issue turned on the payment of bonuses to male council employees, whilst female part time workers in cleaning, catering and clerical were excluded. The council is looking to enter in to negotiations with the Unions to resolve the dispute.    

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Flexible Working

According to a report from the TUC, 1 in 10 employees would like to work fewer hours even if that involved a pay cut. Their report headed “Challenging Times” found that more than half a million workers had asked for a shorter working week and had their request refused. Flexible working is much more common in the public sector.

HR experts, Croners, suggest that companies are actually missing out on commercial benefits by not encouraging flexible working. They suggest that it can lead to reduced absence rates, higher productivity and better moral. They also suggest that valuable savings can be achieved by being able to synchronise demand with flexible work force deployment.

Elsewhere BT is suggesting that companies providing gadgets to promote flexible or remote working (e.g. computers at home, or Blackberries) are actually chained to their desk. They propose formal policies about flexible working and email access. It is comforting to know that somebody at BT had the time to do this research. When we tried to have our broadband connection and phone lines moved to temporary offices after the fire, a BT employee chained to his or her desk would have answered our prayers as we were being told that not withstanding the circumstances, twenty working days were needed to transfer the lines.    

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Health and Safety

According to reports from Workplace Law, an employer who encouraged his HGV driving employees to exceed permitted hours is now serving a three year sentence for manslaughter. His driver fell asleep at the wheel, causing the death of a cyclist. HSE’s statistics show that miles driven for work are 50% more likely to result in an accident. Two thirds of company vehicles suffer a collision of some description each year. Employers will need to look very carefully at their working schedules and road conditions to make sure that staff schedules are not over burdened.

The HSE is warning of accidents in the workplace caused by incidents involving vehicles. Over 300 are killed or seriously injured every year in accidents involving vehicles. It is not just the obvious, but includes incidents such as objects falling from vehicles or vehicles toppling over. More information is available from the HSE website.

Elsewhere, Gillian Beckingham who was convicted of health and safety breaches, causing the death of people at a sports centre in Barrow from Legionnaire Disease is launching an Appeal.

Flooring company Amtico was fined £40,000 plus costs for breaches of regulation regarding guards on dangerous machinery.

The Government has delayed the commencement date for the Regulatory Reform (Fire Safety) Order. It is now expected to come into force from October this year. It is intended to ensure guidance is issued with an adequate time for familiarisation for the rules coming into effect. Information is available here.

The Home Office have released plans showing proposals for compensation for victims of crime at work. Essentially it would mean that the Criminal Injuries Compensation scheme could recover from employers, the money paid out to any staff suffering criminal injuries at work. The British Chambers of Commerce will be lobbying against the proposals as they envisage that it will entail significant increase in employer’s liability insurance.

The Government is now permitting a free vote on the issue of smoking bans in pubs. It is therefore thought likely that the ban will now come into force next year.

According to a report from the Campaign group Asthma UK, some 750,000 employees with asthma find that their work place triggers their symptoms. Amongst the aggravating factors are dust 62%, cigarette smoke 38%, stress 27%, perfumes/air fresheners 14%. The reason that these add up to more than 100% is that those sampled were citing more than one factor. The campaign group suggest the removal of the contributing factors.

Clearly employers need to take health and safety seriously, but that does not mean that employers can ignore normal employment procedures. In a case involving Johnson Matthey Plc, a Tribunal ordered them to pay £22,000 compensation to an employee who was unfairly dismissed on health and safety grounds. He had cut through a wire which the company claimed had resulted in a chemical spillage, irritating workers’ skin and eyes. The Tribunal agreed with the employee that his dismissal was unreasonable and unjustified.    

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Immigration

Staff at London’s Luton Airport are considering strike action over the use of Polish ground staff for ground handling activities. Existing staff are paid at just over £7 per hour, whilst the union believes that Polish ground workers are being offered less.

Elsewhere the East London Communities Organisation (TELCO) is campaigning on the grounds that immigrant workers are undermining some of the hard earned wins of the past 20 years. The Chartered Institute of Personnel Development (CIPD) suggest that the evidence merely shows that immigrant workers are filling the skills gap.

Of more general application is the suggestion that the EU is looking at a US style green card system. The proposal would mean that once any immigrant has been granted permission to work in any one country of the EU, then they would have the right to move throughout the Union. The European Commission is concerned about the shortages in the European labour market which they estimate will need between 10 and 20 million immigrant workers to fill.    

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Maternity

Barrister Daniel Barnett reports on the case of New Southern Railways Ltd v Quinnwhich turns on the avoidance of risk for pregnant women. As employers will know, they have to undertake a risk assessment for pregnant employees. Mrs Quinn was demoted from her position of duty station manager at Brighton Station which was justified by the employer on the basis they were taking steps to avoid physical risks such as assault which they suggested arose out of the claimant’s employment as duty station manager. The Tribunal found that this was a complete sham and the Appeal Tribunal rather agreed.

According to the Citizens Advice Bureaus, new fathers are missing out on their paid paternity leave by failing to understand the requirements to give 15 weeks notice.    

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Minimum Wage

Research by Income Data Services suggests that the introduction of the minimum wage has had benefits other than simply improving the lot of lower paid workers. They suggest that the minimum wage has prompted to re-examine their hierarchy and flatten their management structure.    

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Tax and Pay

The difficulties of integrating the tax and benefits system were highlighted by a forecast by accountants Grant Thornton. They calculate that the freeze on personal allowances mean that tax may absorb up to 78% of some parents’ pay rises. They use the example of a single parent earning £37,500 with a family of two claiming the maximum child care element in the working tax credit. If they receive a wage rise of £2,500 the increases in tax and national insurance together with the reduction in tax credits mean that they would see only £550 of any pay rise.

According to the Office of National Statistics, public sector staff took home on average of £475.10 per week; £62 more than their counter-parts in the private sector. Added to this is a more generous regime on pensions and benefits. Pay rises during the last 12 months have averaged 4.1% in the state sector against 2.5% in the private sector. Obtaining authentic, unbiased information seems more and more difficult. According to reports in the Daily Telegraph on 14th November, thousands of senior teachers are threatening strike action for the risk of losing pay as part of the Government’s modernising agenda. They quote an example of a head of department in a school in Essex whose salary is expected to go down by £2,500.    

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Pensions

The issue of final salary pension schemes is much exercising employers at the moment. As is now well known, Rentokil and the Co-operative group have both indicated that they will be closing the final salary pension schemes to existing members. James Davies who is chairman of the Law Society’s Employment Law Committee writes that it may not be possible, as the contract of employment is unlikely to permit it. However, he suggests that some scope may exist to terminate one contract and offer to re-engage on new terms, although this may run the risk of bringing forward unfair dismissal claims.

Barrister, Daniel Barnett, also draws attention to Pension issues. The Occupational Pensions Scheme (Early Leavers Cash Transfer Sums and Contribution Refunds) Regulations 2006give early leavers a degree more scope. Under the regulations any leaver with more than three months service and with no right to a pension can ask for a cash sum to be transferred to another pension scheme or seek a refund of contributions.

The magazine of the Chartered Institute of Personnel Development, People Management, reports the Pension Commissions rallying cry to the HR Regulation to be brave in promoting good pension practice and the employment of older workers. Jeanie Drake from the Commission suggests that line managers focus on front line costs, whereas HR Managers can embrace the flexible work force agenda openly.

Also on the subject of Pensions, fund manager J P Morgan Asset Management, found that only 20% of scheme members realised that a £250,000 fund was needed to secure a pension of £15,000 per annum in retirement. Candidly we are surprised that the figure is as high as 20%, but nevertheless it certainly underscores the need for the workforce to become more alive to pension provision. The Daily Telegraph also reported in November that less than one third of women retire on the full basic state pension and that a retirement at aged 60 with the maximum pension, requires National Insurance Contributions for 39 years. If the Turner Commission proposals come into force and the retirement age rises to 67, then contributions will be needed for 46 years.    

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Racial Discrimination

It is reported that a retired Lieutenant Colonel from Yorkshire is taking the Army to a Tribunal this month. He alleges that he was the victim of racial abuse, when he was posted in Cyprus at the end of his Army career. It is due to have come in front of the Tribunal this week. Initially the Tribunal held in October 2001 that there was no jurisdiction to hear his case as he based wholly or mainly overseas. However, the Appeal Court ruled that the test was unreasonably restrictive as applied by the Tribunal and that his career as a whole should be taken into account when deciding whether he is working wholly or mainly outside of Britain. The case potentially has ramifications for large number of employers as staff may well be posted overseas for varying amounts of time and Tribunals therefore now will be looking at all the individuals’ career to assess possible discrimination or other employment rights.

An accountant, Anita Ho, of Vietnamese origin lost her tribunal claim for unfair dismissal, race discrimination and victimisation. During the case the Tribunal Chairman said “your skin looks whiter than mine” and pointed to his hand to stress the point. Ms Ho appealed saying that she was treated less favourably on grounds of race not on colour and that the Chairman had made her feel mocked for bringing her complaint. The EAT agreed that the Tribunal proceedings had not been fair as there had been a perception of bias and ordered a re-hearing.

The Commission for Racial Equality has updated its code of practice on racial equality. The revised code can be accessed hereThe code comes into force in April 2006.

The Times reported that a “revolving door syndrome” is thwarting attempts in the Police force to have a more balanced mix of race and sex. Female and ethnic minority trainees are twice as likely to resign as their white counterpart. The number of recruits has increased over recent years but the rate of departure from the force negates any benefit. The sort of difficulty faced by recruits handling the “canteen” culture is showed by the example of Detective Sergeant Jimi Tele of Lewisham Serious Crime Unit. He found that his warrant card had a picture of a gorilla superimposed.

In the north east, Leeds United Football Club has been found guilty of a complete disregard of equal opportunities and procedures in their employment practices. The Tribunal noted that of 128 people employed by the club, in addition to football players, only 4 were non-white. The Club of course was famously home to Lee Bowyer and Jonathan Woodgate who were acquitted of racial motivated assault following a fracas in the city centre.

Elsewhere it is reported that investigations by the Commission for Racial Equality into the treatment of ethnic minority doctors could lead to a full enquiry. The grade below consultant is largely populated by doctors from ethnic minorities and yet the Commission chairman says that they seldom progress to consultant level.    

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Redundancy

There have not been any obvious new developments in relation to redundancy, but redundancies are widely reported through a number of sectors. BAA is cutting 700 jobs whilst Morrison’s, the supermarket chain, are losing 1600 jobs at its distribution depots. The HR consultancy Right Coutts in its bi-annual report on career confidence says that UK workers have some of the worse fears of over redundancy in the world. Some quarter of employees believe they may be redundant in the next year.

Abbey Bank having made some 4,000 people redundant is considering a further 2,500. Having done this they then sent a questionnaire to staff asking what it was like to lose their jobs. Union Amicus says the letters are typical of the unprofessionalism of Abbey, whilst the bank insists they are simply looking for information to help them make a choice when they put their HR management out to tender.    

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Reservists

On 10th January 2006, the Minister of State of the Ministry of Defence announced that a new order had been made enabling reservists to be called into service in Iraq. The significance of this of course is that employers have to hold open jobs for anyone called up into reserve military service.    

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Sexual Discrimination

The European Union has reached the surprising conclusion that golf clubs in Britain are bastions of discrimination. It is intended that clubs admitting both men and women, but then discriminate will be outlawed by the end of 2007. It is however thought that single sex private members clubs may endure.

Financial institutions are not fairing any better at the moment. Citibank HBOS has been sued for £10 million by Clare Bright who alleges that she was suspended by the bank after complaining about her immediate boss’s boorish behaviour. In the United States Dresdner Kleinwort Wasserstein are being sued by six women employed in New York and London claiming between them $1.4billion. It is alleged the women were hired as eye candy and that the glass ceiling was well and truly alive at the bank.

A Church of Scotland minister has won a ruling that her claim for sex discrimination can be considered by an Employment Tribunal. She had resigned and claimed sex discrimination after disclosures of an extra marital affair. The Kirk insisted as her role was spiritual, she did not have a contract of employment and the Tribunal had no jurisdiction to hear her case. Eventually the House of Lords decided that she was able to present a claim. She argued that she had been hounded from her job whilst a male minister in a similar position would not have faced the same sanctions.

The leader of the Democratic Unionist Party in Northern Ireland, Ian Paisley, is not immune from claims of discrimination either. He is being taken to the Tribunal by his own daughter Rhonda alleging sex discrimination after she failed to obtain a job for which says she was the most suited. Further developments are awaited.

The Army has also been in the news on discrimination. Corporal Leah Mates has been suing the Minister of Defence for sex discrimination. She claims that a colleague dragged her by her hair for 25 yards. The alleged transgressor Lee Necrews said that he had too much respect for women for this to be true, but he did drag her away from a water fight and she might have gone flying off with the force of his action as she was only a slight individual.

Elsewhere in a report of the Independent in November, it was said that female law trainees are the victim of sexual harassment. During 2005 UK Law firms took on around 5,600 trainees paying them an average of £26,000 per year. The report also highlights the firms with the worst macho culture. One 24 year old trainee, Mary, said the firm where she was seemed like a great fun place to work until she turned down one of the partners for a date. She was then told that her prospects were not good and she should look for another firm. She then accepted an invitation to a date and found herself offered the much sought after training contract.

Unions also threatening legal action supermarket group Morrison’s on the basis that men employees were being offered enhanced redundancy terms. The women in administrative offices were being offered the statutory minimum severance, whilst male colleagues in depots were being offered three weeks per year.

Finally on the subject of sex discrimination, a trans-sexual airline worker who claimed to have been forced from her job by her managers who were unhappy with her appearance won a claim for sex discrimination in the Employment Tribunal. Marlene Davidson, formally Malcolm, worked for Flybe for four years without problems, but after beginning a sex change procedure was mocked and bullied and told to use the disabled lavatories according to evidence given to the Tribunal in Exeter. The personnel manager was reported to be dumbfounded that Davidson was undergoing a sex change.    

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Sexual Orientation

We are told pubs and restaurants will be banned from discriminating against lesbian, gay and bi-sexual people following amendments to the Government’s Equality Bill tabled by Lord Ali and approved by Parliament. ACAS have published guidelines on sexual orientation in the workplace which can be seen here    

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Sick Absence

The Government has announced that from a date this year, probably April 2006, sick notes can be signed by physiotherapists, nurses and chiropractors.

Research commissioned by BUPA shows that ¾ of the public think employers should provide free health assessments for staff. The CIPD echo this view by saying that there is a strong business case for investing in employee’s physical and mental wellbeing.

A programme at Rolls Royce focusing on prevention rather than treatment has reduced the number of days lost to illness by tens of thousands. The company managed to reduce absence levels from 2.9% to 2.4% by 2002, but by 2004 this was down to nearly half. They achieved this by focusing attention on occupational health. The Prudential Insurance Company found that they were able to reduce absence levels by concentrating on the company’s wellbeing, nutrition and fitness.

Small to medium enterprises (SME) regard staff absenteeism as their biggest headache and more troubling even than maternity leave according to research by Tenon. Half of UK businesses felt that staff absence had an impact on the business with 1/3 regarding it as dangerous to their economic health. Similarly nine out of 10 workers surveyed by the BBC resented colleagues taking sickies.    

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Stress

The CIPD is about to embark on an eighteen month project with the Health and Safety Executive on the impact of stress. In particular they will be looking at the link between line managers’ behaviour and the prevalence of stress. The Head of the stress programme team at the Health and Safety Executive believes that the research will help the HSE to provide better focused tools to managers to enable them to deal with stress.

Six out of 10 NHS employers believe that up to half of staff may be suffering from workplace stress. This is revealed in a report by the NHS employers. Despite that, two thirds of those responding to the survey had not carried out any stress risk assessment and 29% only said they had a stress policy in place.

All this has to be taken in context. Another survey shows that the UK workers are the less stressed in Europe. Only 20% of British workers found their workplace too stressful according to a poll by Kelly Services. In Sweden and Switzerland the proportions were 33%. Having read this section it is tempting to ask whether British workers are the most surveyed in Europe! However, for all that, the Health and Safety Executive and ACAS calculate that stress is costing the economy billions of pounds. Ultimately all this must be seen as a plea for better management. Well paid and well managed workers are much less likely to suffer from stress and certainly take less time off. The Health and Safety Executive advise that those with low job satisfaction are most likely to suffer from reduced self esteem and pressure.

Finally an observation on the long hours culture. The Court of Appeal have ruled in the case of Hone v Six Continents Retail that it is entirely appropriate for the Court to take into account whether the employer is breaching the average working week and rest provisions when assessing the foreseeability of stress.    

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Temporary Workers Directive

The European Commission has announced that it is reconsidering its draft directive on agency workers. This would have guaranteed equality of terms and conditions of agency temporary staff and permanent staff. This particular ball seems to have been hit very firmly into very long grass and now is not expected to seen again in the near future.    

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Employment Contracts

In the case Windsor Recruitment v Silverwood, the Employment Appeal Tribunal ruled that asking staff to sign new contracts with restrictions could be legitimate and a refusal to sign could amount to Some Other Substantial Reason in relation to dismissal. The recruitment agency had asked all staff to sign a new contract after various competitors had successfully poached its contacts. Although the Employment Tribunal had held that the restrictions were reasonably wide, the EAT held otherwise. However, the employer was still not able to succeed as the dismissals were unfair on procedural grounds as the staff were not consulted and were given no more than 30 minutes to look at the contract before signing.    

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Tribunals

There have been a number of decisions of interest over recent weeks. In a case involving Jim Beech and Royston Golf Club, the club secretary Jim Beech made £37,000 worth of savings, but was then sacked to save more cash.

Elsewhere, Gina Johnson working for publishers Hachette Filipacchi as editor in Chief of their title B lost her claim of unfair dismissal on Appeal. She had been working on the launch of a new project which was scrapped and she then applied for other posts in the Firm before being made redundant. The Tribunal had said that the company had failed in its duty to consult. The Appeal Tribunal disagreed saying it was plain that she was dismissed and that the need for a project director for the magazine that was scrapped had ceased.

Lecturers at London Metropolitan University won their claims for unfair dismissal after a dispute on the terms of employment contracts. The lecturers had worked at London Guildhall University which merged with the University of North London in 2002 and they were then asked to accept University of North London contracts or be dismissed.

In another case before the Employment Appeal Tribunal Mr Younis won his case against Transglobal Projectson the nature of employment. He was on a three year retainer terminable on sixty days notice. For this he was paid a small retainer plus commission. His job was to generate sales leads for the company. There was no express obligation to perform any tasks but the EAT ruled that the existence of contract of three years duration was sufficient to create a mutuality of obligation which meant that he was employed.

In the case of Gover v Property Care Limitedthe EAT was able to take a further look at the well-known Polkey principle. The EAT said that there were four categories of situations where a Polkey reduction might apply to compensation:
1) Length of time where a dismissal would have occurred in any event
2) Loss of chance where there was a possibility of surviving dismissal
3) Where there is reduction because the claimant was likely to have been dismissed on other grounds
4) Cases where there had been no reduction due to a complete sham


Thanks to Barrister Daniel Barnett for notifying of this case.

A freelance correspondent for American channel ABC News based in London, Richard Gizbert, was claiming £2.2million compensation at a hearing in the Central London Employment Tribunal. He said that his contract was terminated after he twice declined assignments in the Middle East. The Tribunal ruled that he was unfairly dismissed and a remedies hearing early this year is expected to fix the level of compensation.

Maria Ciupka won her case against Sanctuary Management Services in December. She had lit tea lights in a house let to students by Sanctuary on Christmas Eve as a memorial to a student who had lived there and committed suicide. She was dismissed for entering the property whilst off duty and breaching safety rules. The Tribunal in Dundee felt that the employers were uncompromising and didn’t take into account her religious beliefs and other factors.

In the case of Perkin v St Georges Health Care NHS Trustthe Court of Appeal held that it was legitimate to dismiss for breakdown in confidence where it is caused by the conduct of the senior executive and it is damaging to the organisations operations and renders it impossible for senior executives to work together as a team.

Finally it should be noticed that the compensation limits for 2006 are raised with effect from 1st February. The maximum compensatory award is now £15,400 with a weeks pay being set at £290.    

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Working Time

From Spring 2007 drivers will no longer have the flexibility to decide when to take their rest periods. Presently they are required to take 45 hours rest each week, but are allowed to reduce this if they want to work an extra day providing the rest time is made up later. Under new regulations this will only be permitted every second week.

Workplace Law forecast that more people are set to participate in “binge working” where they undertake a mammoth amount of work in return for building up their time off. If there is any truth in that it will make policing the working time regulations much more difficult.    

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Whistleblowing

A National Trust warden who took the trust to the Tribunal is now awaiting a reserve decision. He had leaked a report about potentially deadly toxins within part of the park and leaked the report to the press. After that he was dismissed and evicted from his tied cottage. He told the Tribunal that he believed the Trust were trying to spare South Tyneside Council’s blushes and he wanted to warn users about possible hazards.

Elsewhere two former members of the Board of the Committee on Radioactive Waste Management are taking the Government to a Tribunal. One member, Keith Baverstock, was dismissed whilst his colleague, Professor David Ball, resigned in protest. Dr Baverstock had accused the organisation of being incompetent in claiming there were conflicts of interest within the board.

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