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Press Releases from Employment Relations
Employment News June 2009
Clearly the biggest story at the moment is that of MPs and excessive allowance claims. What would amount to gross misconduct in industrial settings for fraudulent expense claims does not leave the MP facing termination of employment, simply the prospect of falling on their own swords at the next election, whenever that might be. The legal rationale for this is simply that the MPs are not employees but office holders. When it comes to being voted out at the next election, the MP cannot claim unfair dismissal, ageism or any of the other discrimination claims; just generous pension and final payments.
Until the next election, the current crop of MPs will continue to vote on employment legislation and judges examine it.
Age Discrimination
The Chief Executive of Cumbria NHS trust is seeking compensation of around £760,000 following his redundancy. He alleges that the dismissal was tainted by age discrimination. According to reports in the News & Star, he said the date of his termination was geared to avoid him reaching his 50th birthday and being entitled to superannuation benefits.
The primary care trust has admitted that he was unfairly dismissed and his manager has accepted that she dismissed him outside of the statutory procedures to avoid Mr Woodcock being able to delay his dismissal until after his 50th birthday. At the moment the decision has not been reported but it seems likely to us that the claim will succeed.
Bullying and Harrassment
There are a number of reports in the press this past month on bullying and harassment and it seems likely as the economy continues to sail through troubled waters that such complaints will increase.
The Herald reports that teachers in Scotland are complaining of stress and over long working weeks.
Elsewhere, there are complaints of a bullying culture in a Cardiff maternity unit and the Cardiff & Vale NHS Trust has agreed to carry out an investigation. According to reports in the South Wales Echo maternity staff responding to a questionnaire said that their concerns were not taken seriously by management.
In a disturbing report, the Transport and Salaried Staff Association made complaints about personnel chief, Peter Bennett, a £200,000 a year personnel director. They allege that a number of confidentiality agreements have been signed with payments between £450,000 and £850,000 to senior female staff, making allegations of sexual and racial discrimination. They allege that at least 155 staff have been paid off in 3 years.
Health and Safety
We offer our usual link to the health and safety newsletter published by MESH consultants.
Trade Unions
Following reports of widespread blacklisting in the construction industry, the government is set to outlaw the practice. The Guardian reports that the blacklisting emerged when the information commission closed down a private investigator with an intelligence data base of 3,000 workers. These details were then sold on to 40 different construction businesses.
Disability Discrimination
The tests on disability discrimination may get somewhat simpler if the new employment act stays the course and is not disrupted by a general election. In the meantime, the appeal tribunal is applying the Lewisham v Malcolm test, covered in previous updates, to test discrimination on the grounds of disability. Essentially the test in this case is that the disabled person must be able to show that a fully able bodied person would be treated differently. In the case of Carter v London Underground, Mr Carter went sick with depression in September 2004 allegedly as a result of mishandling of his grievances by London Underground and Transport for London. After failed attempts to return to work he was dismissed in September 2006. The tribunal found that although he had not made out a case for unfair dismissal, there had been discrimination on the grounds of disability because he was not notified of a vacancy that might have been suitable and the reason for this was because of his sickness absence. They found that an employee who was not off sick would not have been treated in this fashion. However, the correct comparison in this somewhat unreal world is somebody who is off sick but not disabled for the purposes of this act. If that hypothetical absentee would have been treated the same as the absentee for reasons of disability then there was no discrimination. This is a variation of the defence sometimes used to be run in discrimination cases in the City where the employer would say “of course there was no discrimination on the grounds of sex or race, we are equally horrible to all of our staff”.
Expect more decisions on this.
Equality
According to the Mail on line, Bob Hoskins and Miranda Richardson are due to star in a new film about the equal pay battle at Fords Dagenham plant which we covered last month.
Wolverhampton Council is facing a potential £4.5 million equal pay claim from a group including teachers, dinner ladies and cleaners.
Despite equal pay legislation, the Guardian reports that the UK income gap is at the widest since the 1960’s. Flexible working, according to a report in the Financial Mail, 70% of European working parents would insist on flexible working if legislation would permit it. The survey suggests that flexible working practices would actually benefit employers and Avaya are quoted as saying it could turbo charge productivity across the Euro region.
The different moves on flexible working seem to have excited great indignation with newspaper columnists. In the Daily Mail of 21 May 2009, Carol Sarler writes that she cannot understand the choice of some women in the workplace not to have children. She suggests that employers regard such women as cold and odd.
In the Times of the same day Karen Midgley writes that the non-breeders get left behind as those with families take all of the prime holiday slots. Apart from not being wholly sure what are the pleasures (having done this) of sitting in a car with unhappy children for several hours on the A303 heading towards Cornwall, another more serious question is perhaps posed. Why is it always female journalists who are most vehement in their condemnation of working/non-working childless/child bearing colleagues. Journalism is after all one occupation that can be fitted around family commitment as copy can be filed electronically.
Race Discrimination
Indian born banking graduate Ash Purohit won a case for discrimination against Osborne Clark services for refusing to consider his application for a legal training contract. The firm operated a blanket ban on applications for anyone without a work permit. He successfully argued that he should have been considered on merits with any offer being subject to a successful application for a work permit.
Minimum Wage
The minimum wage will be increased from October 2009 from £5.73 per hour to £5.80. For workers aged 18-21 it will rise from £4.77 to £4.83 and for 16-17 year olds from £3.53 - £3.57.
The current situation where tips can be taken into account with the selling of the minimum wage has been over ruled in a court of appeal decision involving Annabel’s club.
Sex Discrimination
According to the Mail on line, Lloyds TSB are the subject of a claim for discrimination from Alison Weekes. She alleges that she was the victim of both race and sexual discrimination because she was told that being a single mother meant that she could not be truly committed to the job and that there was no such thing as work life balance.
A Devon fire fighter has won a second tribunal case against the Devon fire and rescue service. She had come back to work after a period of sick leave and she was set up to fail. She claimed that pornographic literature was deliberately left in the toilet. The tribunal agreed that she was expected to return to work in a hostile environment.
Tribunals
Presently it can be difficult for employees to recover rewards made in the employment tribunal. The government plans to have a searchable register or awards which potentially would name and shame those that do not pay. It also proposes to make recovery easier.
In a court of appeal decision Rank Nemo (DMS) Ltd v Coutinho a former employee was able to pursue a claim for victimisation for failure to pay an award.
In the case of Bournemouth University v Buckland, a highly technical argument took place before the Employment Appeal Tribunal on constructive dismissal. Professor Buckland had resigned claiming constructive dismissal as a result of his exam marking being amended without his knowledge. He said this was a fundamental breach of contact as the relationship of trust had been fatally undermined. The tribunal agreed. However, the University appealed using the analogy of reasonable range of responses in the context of unfair dismissal. The appeal tribunal held that the correct process was to analyse:
The conduct complained about.
Was there reasonable and probable cause for that conduct.
Did the conduct destroy or seriously damage the employee/employer relationship of trust and confidence.
Even assuming all of those, it was still open to the employer to show that the dismissal was for a potentially fair reason and then and only then was there an analysis of whether the decision was within a reasonable range of responses. Given that we are talking about a situation where an employee resigned rather than being dismissed, it seems highly unlikely that this last test would ever be reached, since by implication there is no decision to benchmark. Having considered all of this, the Appeal Tribunal decided that the original tribunal decision was correct. So far so good for Professor Buckland, however, the appeal tribunal found that the University’s enquiry had remedied the breach which had occurred and therefore at the time of his resignation there was no constructive dismissal. The decision, perhaps, emphasises the importance for an employee of lodging a grievance to enable an employee to remedy a claimed breach of contract and also for the employer the need to pay serious attention to grievances, particularly where it is clear that the working relationship is extremely fraught.
Whistle Blowing
The Royal National Life Boat Institution in Scotland is reeling from an allegation made by crew member Bob Jeffrey. He said that one of his crew members, Scott Huggins, said “F***ing Paki” should have thrown it back, after he rescued an Asian woman. He mentioned it to other crew members at the Dundee Life boat but was sacked after 18 years service while the offending crew member was promoted to a full time post. Two crew and five volunteers then resigned in protest.
Elsewhere, grave concern has been raised after whistle blowing nurse Margaret Hawyood was struck off for working as an undercover reporter for the BBC Panorama programme exposing the neglect and ill treatment of elderly patients at the Royal Sussex hospital in Brighton. More than 40,000 NHS staff have now signed a petition in her support. The reaction of the RCN is prompting concerns that nurses might be reticent to report complaints.
Press Releases
3 April 2009 - Employment Law Changes in April 2009
