How to avoid a French-style World Cup mutiny in the workplace

Yes, the World Cup is here. Not that that is news. Even if you’re not a football fan, all the adverts for cheap flat screen TVs to ensure you are ‘World Cup ready’ would have done the trick.

Now, naturally, for most people, memories of recent World Cups include a ponytailed England goalkeeper flapping at a Brazilian cross/shot, getting humiliated at the hands of tiny nations (Iceland, anyone?) and, of course, hitting Row Z from the penalty spot against ze germans.

However, for me, one of the most controversial, shocking moments of recent years was the French squad effectively refusing to train at the 2010 World Cup! Just imagine you’ve waited 4 years for the World Cup to come round, you’ve played well enough to make your national team and then, as a team, after a huge training pitch row with management, you walk out of training (into the team bus) in protest at the manager! On that occasion, it was due to the decision to send Nicolas Anelka home after the striker had reportedly sworn at the manager, Raymond Domenech. Needless to say, team spirit hit a massive low and they limply crashed out of the tournament soon after. C’est terrible!

So, what happens in similar situations at work? What happens if a staff member commits an unacceptable offence ending in dismissal against their line manager and their colleagues then actively rebel against the manager in question?

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Ensuring employers don’t pay for failing to comply with incoming payroll legislation

New requirements for employers to provide payslips are on the way – the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018  comes in to effect on the 6 April 2019. Once implemented, all workers will have the right to obtain a written, itemised payslip at any time before or after their wage or salary has been paid to them. Previously, this obligation extended to employees only. The new law comes after a recommendation by the Low Pay Commission in 2016 and forms part of the Government’s raft of initial responses to the Taylor Review on Modern Employment Practices. The Taylor Review, published in July 2017 set out key recommendations to increase the rights of workers and this new legislation is aimed at ensuring that low paid workers can work out whether they have been paid correctly.

The widening of the obligation will increase transparency in relation to wages and will assist workers in challenging discrepancies. It will also highlight if an employer is falling short of their minimum pay obligations (National Minimum Wage and National Living Wage).

Aside from being necessary evidence for pay disputes, payslips are required by workers for many other purposes – securing credit for a property, securing rental accommodation, proof of loss of earnings and proof of employment generally.

The extension of the right to include all workers will now mean workers in the gig economy and those on casual or zero hours contracts will be entitled to an itemised pay slip where previously they were not.

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Is it fair to dismiss for action which falls short of gross misconduct?

It is well known that dismissal can result from a single matter which is usually found to amount to gross misconduct, or as the result of more than one event, with the prior matters resulting in written warnings and/or a final written warning. Indeed, most disciplinary procedures outline this process and generally include examples of what will normally be treated as gross misconduct.

However, in Quintiles Commercial UK v Barongo the question for the Employment Appeal Tribunal (EAT) was whether it was fair for Quintiles to dismiss Mr Barongo for conduct which was initially classified as gross misconduct but subsequently downgraded to serious misconduct.

Quintiles supplies staff for pharmaceutical companies. Mr Barongo started working for them in October 2012 and was latterly engaged to sell drugs for Astra Zeneca. On 5 January 2016 he was dismissed on notice on two grounds. First, he had failed complete Astra Zeneca’s compliance training course by the deadline of 3 November 2015 and, second, failing to attend their compulsory training course on 19 November 2015. Mr Barongo did not deny the allegations and he also accepted that they amounted to misconduct on his part. However, he contended that he had been dealing with other matters. He said that he had not intentionally failed to engage with the training but he had chosen to priorities other matters. This had been at a time when he was on a performance improvement plan.

There was a disciplinary hearing conducted with his line manager which took place by telephone. As the EAT pointed out, conducting the hearing by phone might not have been best practice but it was not in itself unfair. His line manager concluded that the duty of trust and confidence which ought to exist between employer and employee had been broken and, as a result, Mr Barongo was dismissed on notice, for gross misconduct.

He appealed against the decision and the appeal was heard by one of the employer’s directors, Mr Athey, who took the view that there had been a breach of the duty of trust and confidence, but that it amounted to serious rather than gross misconduct.

Mr Barongo submitted a claim of unfair dismissal to the Employment Tribunal. The Tribunal took the view that the downgrading of the misconduct from gross to serious was highly significant:

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Dressing for work

The government has released some useful guidance to assist employers in getting to grips with worker’s rights and the law surrounding dress codes in the workplace. The guidance acknowledges that employers should have the power to draft and enforce a workplace dress code policy but must ensure that it is not discriminatory in nature. There is a lot of misunderstanding and confusion surrounding such policies and it can be difficult for employers to get the balance right. Can a policy require a male employee to wear a tie? A female employee a skirt? What should your stance be on manicured nails? While the guidance does not change the law in this area, it does provide some welcomed clarity (although it is not without its critics).

As you may recall, the ‘high heel scandal’ brought dress code discussions to the media forefront back in 2016 after a temp worker, Nicola Thorp was sent home on the first day of her assignment at a large London firm for wearing flat shoes. It was stated within the employment agency’s Grooming Policy that female staff were required to wear smart shoes with a heel height of between two and four inches. Nicola was advised by the agency that she could take time out of the working day to purchase a suitable pair and was sent home without pay when she refused.

As a result of her treatment, Nicola submitted a petition to government to make illegal any policy which forced women to wear high heels at work. The petition received 152,420 signatures over a six month period and gained the right to be debated in parliament on the 4th of March 2017. The government’s view is that the current legislation is clear and sufficient enough as it stands to protect employee’s rights. While pledging to take action to remove the barriers to equality for women at work, the government maintains that employers are entitled to set dress codes for their employees provided that they are reasonable.

A joint report by the Petitions and Women and Equalities Committees however has called on the government to do more

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Shocking behaviour revealed at Marine Scotland

A whistleblower who complained of a racist and misogynistic workplace culture at a Scottish Government controlled Marine Scotland office has claimed she was restrained in a chair and gagged by two male co-workers in response to her speaking out.

DeeAnn Fitzpatrick is a civil servant and Canadian national employed as a fisheries officer at Marine Scotland’s office in Scrabster on the Caithness coast, Scotland. Fitzpatrick claims that she was subjected to bullying, harassment and a sustained pattern of racist and misogynistic behaviour over a period of nearly ten years whilst working at the office. Her claims are currently being considered at an employment tribunal in Aberdeen. Allegations include that she was mocked for having a miscarriage, advised by co-workers that they didn’t want to work with a ‘foreign woman’ and subjected to racist language. Fitzpatrick has been unable to work and has been signed off on sick leave since November 2016, after also experiencing a family bereavement during this time.

BBC Scotland have obtained and released a photograph of the described event earlier this month, taken by one of the men allegedly responsible. It pictures Ms Fitzpatrick gagged and secured in the chair with packaging tape. Fitzpatrick claims that she was subjected to the treatment as a result of ‘blowing the whistle’ on the behaviour of her male colleagues. She has stated that in 2010, two male colleagues had restrained her in the chair before telling her ‘This is what you get when you speak out against the boys’. When Ms Fitzpatrick reported the incident to her manager she was advised that he would ‘have words’ with the colleagues involved but the matter was not reportedly escalated any further.

While the Tribunal proceedings are ongoing, Ms Fitzpatrick is also understood to be involved in disciplinary procedures in the workplace with a hearing due at the end of May.

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How to deal with convictions for sexual offences committed by a person associated with the employee

Judgments of the Supreme Court concerning employment law issues are fairly infrequent and usually worthy of attention. That is certainly so in the recent case of Reilly v Sandwell Metropolitan Borough Council which concerned an individual convicted of the surprisingly common offence of downloading indecent images of children.

Ms Reilly was the deputy head teacher of a primary school. She was in a close but not sexual relationship with a Mr Selwood and they did not live together. In 2003 they bought a property in joint names as an investment and Mr Selwood lived there, although he did not make any payments to Ms Reilly. Ms Reilly did not live there but she occasionally stayed overnight, including on 24 February 2009 when, the following morning, she awoke to the arrival of the police who searched the property and arrested Mr Selwood on suspicion of having downloaded indecent images of children. In September Ms Reilly was promoted to the post of head teacher at the school and in February 2010 Mr Selwood was convicted of making indecent images of children by downloading. On a scale of 1-5, the images ranged from level 1 to level 4. He was sentenced to a three year community order, made the subject of a sexual offences prevention order (which included a ban on him having unsupervised access to minors) and he was required to take part in a sex offenders’ programme.

Ms Reilly was immediately aware of the conviction and sentence but chose not to disclose them to the school governors or the local authority. In June 2010 the authority became aware of the conviction and she was suspended on full pay. She was required to attend a disciplinary hearing, the allegation being that, in failing to disclose her relationship with a man convicted of sexual offences concerning children, she had committed a serious breach of an implied term of her contract of employment, sufficient to warrant dismissal for gross misconduct. Following a hearing in May 2011 she was summarily dismissed. The panel was particularly concerned that Ms Reilly continued to refuse to accept that her continued association with Mr Selwood might pose a risk to children at the school. Her appeal against her dismissal failed.

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Dealing with “sporting sickies”!

Merger or Messi? Filing or Fellaini? With the festivities of the world cup to hit us next month perhaps now is as good a time as any to consider whether a workplace policy for major sporting events is necessary and what points should be considered.

Many employers may be concerned in the lead up to such a sporting event that instances of absenteeism will increase as staff take ‘sickies’ to watch the match or recover from the one the night before. Ahead of the 2016 Euros a survey completed by Robert Half found that 73% of UK Human Resources Directors believed employees are likely to skip a day of work following or during a tournament match while 21% of respondents considered it to be ‘very likely’.  There is currently no legal requirement for employers to give employees time off for such events but could a flexible approach yield potential benefits with minimal disruption to the business?

In an audit of 1000 Managers carried out by the Institute of Leadership and Management following the London Olympics in 2012, 48% of those interviewed confirmed increased morale within the workplace. Amongst those interviewed, 41% allowed staff to watch the Olympics at the office. From that number over a third (37%) confirmed an increase in productivity as a result with 67% stating that the staff within the workplace bonded over a shared experience.

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Addressing the gender pay gap: is it time to consider “use it or lose it” paternity leave?

father and childAs we know, the 4th of April 2018 marked the deadline for all companies in Great Britain (but not Northern Ireland) with more than 250 employees to report their gender pay gap to the Government Equalities Office. As detailed in our blog last month, the returned data shows that nearly 80% of those who have responded have reported higher levels of pay to men than women.

So now that the data has been collected and will continue to be so annually from here on in, we should consider further what employers can do to reduce or eliminate their gender pay gap. Among the suggestions raised are target setting, salary transparency or increased training opportunities for women. One of the key reasons however why women’s pay progression lags behind that of their male colleagues is maternity leave and time taken off for childcare. Could restoring the balance between men and women in relation to paid parental leave have the dual effect of restoring the gender pay balance?

A recent enquiry launched by the Women and Equalities Committee into Fathers and the Workplace indicates that it could. The enquiry has been prompted by research findings contained in the 2017 Modern Family Index which confirmed twice as many fathers compared to mothers believe that working flexibly will result in them being perceived as less committed to their job and would negatively impact their career. Over half (53%) of millennial fathers indicated that they struggled to balance the demands of working full time alongside family commitments and would like to downsize to a less stressful job. The report also notes that women in the UK make up 74.2% of the part-time work force – largely attributable to increased care-giving roles, while the vast majority of fathers still work full time.

Shared parental leave has been available to new fathers since the Shared Parental Leave Regulations came in to effect on 5th of April 2015. The Regulations allow up to 50 weeks leave or 37 weeks’ pay to be shared out between both parents as they please – either in one block or split into several chunks with periods of work carried out in between. Statutory shared parental pay is payable at either £145.18 per week or 90% of the parent’s weekly salary, whichever is lower.  With a predicted take up rate of only 3 – 8% however, it is clear that the Government flagship policy does not go far enough to even out the parental responsibilities. So why has there been such a reluctance from male employees to take up the scheme? The negative social and cultural connotations associated with paternity leave as evidenced by the statistics above contribute heavily, with many fathers feeling unsupported in the workplace with regards to childcare and their aspirations for an improved work-life balance. Also very telling within the Modern Family Index Report is that 44% of fathers stated that they have been dishonest with their employer with respect of family related responsibilities for fear that it may ‘get in the way of work’.

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New GDPR compliant data protection

As I mentioned to readers of our monthly newsletter, like many organisations, we have been preparing for the implementation of the General Data Protection Regulation on 25 May 2018. As you may know, there is no transition period so the new rules concerning data protection will be in full force and effect from day one.

At Canter Levin & Berg we introduced our new data protection policy last week and we have recently published our template GDPR compliant data protection policy, with associated documents and guidance notes, in the subscription section of this website. The policy is intended to be straightforward and easy for all readers and users to understand.

As usual we have accompanied the policy with detailed background and guidance notes which are intended to demystify the compliance process for SMEs. We have explained the background to GDPR, provided a commentary on what the Information Commissioner says about preparing for GDPR and summarised the main areas that need to be considered.

We have provided a clause by clause summary of the policy so that our users have all that they need to adapt the policy for implementation in their organisations.

Of course, subscribers who have access to our employment lawyers can have them prepare a suitably adapted policy, as well as receiving advice about how to implement the changes.

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The stakes are high when the wrongful dismissal claimant is the former boss of The AA

In June 2014, when The AA was taken public in what was described as a management buy-in, chartered accountant Bob McKenzie was appointed as its chief executive on a base salary of £750,000.

On 1 August 2017 he was sacked for gross misconduct after he was reported to have to have got into a hotel bar fight with one of the Company’s senior managers. He was reported to have engaged in “a sustained and violent attack” on the manager which was captured on the hotel’s CCTV. Days after the incident he was removed from the board. As a result of being dismissed for gross misconduct, thereby disqualifying himself from any further contractual benefits, he stood to lose what was estimated at the time to be about £100m in share awards. Following his dismissal Mr McKenzie admitted himself to hospital suffering from work related stress.

He was known as strong boardroom performer, driven by financial returns. In an interview with The Sunday Telegraph in 2016 he said of his employment prior to joining The AA:

“Work hard and play hard: you were given targets and you met them or else you parted company.”

Shortly following his appointment, chief executive Chris Jansen left abruptly, followed finance director Andy Boland. Mr McKenzie assumed the (much criticised) dual role of chairman and chief executive, assuming greater power in 2015 by absorbing the duties of executive director Nick Hewitt, architect of the business plan that led to the float, who also left abruptly.

Mr McKenzie instructed top City firm Bird and Bird and in January 2018 The AA declared that it was “astonished” that Mr McKenzie had commenced an unfair dismissal claim in the employment tribunal, with the intention of bringing a wrongful dismissal claim for “tens of millions of pounds” in the High Court.

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