Theft in the workplace: Actionable or a load of hot air?

This afternoon, I returned to my chilly office to discover that my desk heater was absent. After a quick root round, it became clear that someone had borrowed it for a meeting room yesterday and forgot to return it. The mystery was solved and I’m back to being blasted with lovely, soothing warm air once again!

However, the experience did serve as a reminder of the number of times over the years when employers have rang to obtain advice about thefts in the workplace. And, no, I don’t mean borrowing items and forgetting to return them, as in the much tamer world of Canter Levin and Berg but, rather, intending to steal items. Obviously, this can occur either against the Company’s property or between colleagues.

So, how can an employer turn up the heat in pursuing a potential thief?

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A family (business) at war

If, like me, you have been enjoying Kay Mellor’s comedy drama Girlfriends on ITV, you may have cringed at some of the artistic licence deployed when dealing with aspects of the age discrimination claim being brought by Miranda Richardson’s character against her boss (and lover), played by Anthony Head. However, it has neatly highlighted the particular difficulties that can arise when workplace disputes get a bit too close to home.

A real life family dispute has been playing out in the Manchester Employment Tribunal and, more recently, in the Employment Appeal Tribunal. There is a major clue in the name of the case: Mrs J Feltham, B Feltham (Maintenance) Limited and Ms H Feltham v Feltham Management Limited, Mr D Feltham and Mr M Feltham. Feltham Management is a long established family business, specialising in property management, particularly in respect of student lettings. Jane Feltham is the claimant. She has three brothers, David, Martin and Stephen, all of whom were respondents in the Employment Tribunal claim. They all worked for the family business which was founded by their father. Hazel, the adult child of David, worked for the company as a clerical assistant and Jane’s husband was Mr Eckersall, a self-employed joiner who did work for the company.

In August 2013 it came to light that Mr Eckersall had been sending inappropriate texts and Facebook messages to his niece, Hazel. On the same day he told his wife, Jane, that he was leaving her because he had feelings for Hazel. Jane confronted Hazel, accusing her of inappropriate conduct, but she denied that she had done anything wrong. Jane’s brother David got involved and told Jane that if was her fault because she did not take Mr Eckersall’s name on marriage, did not respect him as head of the household and suggested that these (among other reasons) were why he wanted Hazel. Jane was upset and left work. She did not return.

With support from David, Hazel took over Jane’s duties as office manager. The company stopped paying Jane from the end of August, but she remained a director as well as continuing to receive benefits including a company car and credit card.

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Compensation for post-termination losses, even though lawfully expelled from partnership

The status of professional partners in the context of employment law has exercised the courts on many occasions. Are they employees, workers, or employers or, in some cases, none of the above. Is there a difference between self-employed salaried partners and employed salaried partners? From an employment perspective, probably not. Of course, the employment rights available vary from none to most, depending on which type of employment status (if any) applies.

The same issue arises in the case of members of an LLP (or limited liability partnership), who are often referred to as partners. One such member was a solicitor who worked for Wilsons Solicitors LLP and whose claim was recently considered by the Court of Appeal.

Mr Wilson became a member of the LLP in May 2008. He held the post of managing partner, as well as being the firm’s COLP (Compliance Officer for Legal Practice) and COFA (Compliance Officer for Finance and Administration).

In July 2014 the board of the LLP received a complaint of bullying made against the senior partner, Mr Nisbet. Mr Wilson investigated the complaint, reported his findings to the board and produced a report on 7 October 2014. On 21 October the board was supposed to meet to discuss the report. However, a majority of the members refused to attend the meeting. Instead, the following month, they demanded that Mr Wilson should resign. They then voted to remove him from his post. They also removed him from the posts of COLP and COFA before he was able to submit his report.

In January 2015 Mr Wilson wrote to the other members and claimed that they had repudiated the terms of the members’ agreement by their actions and he accepted the repudiatory breaches. He gave one month’s notice of his intention to leave the membership of the LLP on the basis that their actions had made continued membership intolerable.

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Protecting employees’ “stories” – Avoiding fines of up to €20m under the incoming General Data Protection Regulations

Last night, I visited a local community café for a fascinating talk about ‘story’. The gist of the evening centred around how humans think and dream in script form rather than in bullet points. A case in point? You dream in vivid, moving events, not static images.

Every part of our lives involves in story. Music is the story of events in lyrical form, whilst books and films introduce characters with backstories which shape their character going forwards. An example? In the Harry Potter books, Harry and Voldemort have the same backstory (magical orphans with horrible childhoods who are ‘saved’ by Hogwarts School) but both deal with that in different ways – i.e. one becomes good and one becomes evil.

Everybody has an individual story, whether in their social lives or during their employment. So, why am I going on about ‘story’?

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Dismissal for beard that was “too long” and “too religious” upheld

Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed.

A similar case has now surfaced in the Versailles administrative Court of Appeal. A trainee doctor of Egyptian origin was dismissed from his job at Saint-Denis hospital centre in Seine-Saint-Denis because his “imposing” beard constituted an “ostentatious display of religious belief”. The individual concerned declined to deny or confirm that his appearance was intended to be a way to “demonstrate his religious activity”.  On 19 December, the Court of Appeal supported the decision, noting that although the wearing of a beard “even long”, cannot “on its own” cannot (necessarily) constitute a sign of religious affiliation, the “circumstances” entitled the hospital to at as it did.

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Would reforming the Working Time regulations be a good idea?

Brexit. Brexit. Brexit. Whilst Christmas and New Year provided a welcome rest from Brexit-dominated headlines, there is no doubt that the media train will start in earnest sooner rather than later.

Just before Christmas, various newspapers reported that the Working Time Regulations could be a target for the Government following the UK’s departure from the EU. Certain newspapers went further and stated that repealing or substantially amending the Working Time Regulations would be a positive example of removing so-called ‘red tape’ and freeing businesses from the burden of overbearing regulations; some newspapers even trotted out the over-used line of ‘taking back control’.

So, to use that awful phrase, should the UK ‘take back control’ and amend the Working Time Regulations?

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Can you discriminate against a ‘non-disabled’ employee on grounds of disability?

 So, here we are: January. Christmas has come and gone and the warm lights of December have been replaced with the wind and rain of January. Sigh. But anyway, how was your Christmas? I hope it was a time of rest and good health.

My Christmas? As usual, it was filled with random discussions around the Christmas dinner table including, as ever, conversations about weird and wonderful Employment Law cases. In particular, some of my family members were shocked to hear that a non-disabled employee can suffer disability-related discrimination. One even suggested that I make the subject into a blog when I returned to work and, me being me, I couldn’t resist such an invitation…

So what am I talking about? Well, this was the case of Chief Constable of Norfolk v Coffey which concerned a female police officer who applied for a job in another police force. The police officer had a progressive hearing condition with tinnitus which, going forward, would continue to worsen. When originally recruited for her current police force, she failed the meet the usual criteria for police recruitment due to her low level of hearing but, after the police force arranged a practical functionality test, she was passed for duty and assigned for front-line duties. There were no concerns over her performance during her time in the role.

The issues started in 2013 when she applied to transfer to a new police force. As was standard, she attended a pre-employment health assessment. The medical practitioner concluded that, whilst her hearing level was technically just outside the usual police force parameters, she performed her current role with no difficulties and a practical functionality test was recommended. However, the new police force refused to follow this recommendation and, instead, declined her request to transfer due to her hearing below the recognised standard and, rather importantly, commented that it would not be appropriate to accept a candidate outside of the recognised standard of hearing because of the risk of increasing the pool of police officers placed on restricted duties.

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Is Buddy the Elf a good employee?

 It’s nearly here! Christmas is just five days away! The radio stations are playing Last Christmas by Wham on loop, supermarkets are clogging up the TV with advertisements for gooey desserts and it’s getting easier and easier to spot those remaining advert calendar squares!

Every family tends to have an annual pre-Christmas tradition and I’m no different. In fact, mine is to visit my younger family members each year and watch Elf with them. For those not in the know, Elf is a Christmas film which came out in 2003 and stars Will Ferrell as a human who is adopted by Santa’s elves and raised as a Christmas Elf at the North Pole. It sounds terrible but, in fact, it’s a cult classic that was named Best Christmas film in a recent survey!

Anyway, what better time of the year to explore whether or not Buddy the Elf is a good employee or not? I mean, it is an employment law-related and Christmas-themed topic, so what are we waiting for? Let’s travel through the Candy Cane forest and explore this further!

So, to give us some background, Buddy was a baby at an orphanage who snuck into Santa’s sack one night. When Santa discovers him at the bottom of his sack upon his return to the North Pole, an elf adopts him and raises Buddy as his own. Unfortunately, Buddy grows at three times the rate (and height) of the elves and, eventually, discovers that he is a human, not a Christmas Elf. Aside from his height, this is especially noticeable when Buddy can ‘only’ make 85 Etch-A-Sketches a day rather than his 1,000 daily target in Santa’s workshop. Upon discovering that he is human, Buddy goes to New York to find his real father and save him from the naughty list, as well as looking for a more normal life.

During the film, Buddy has work experience at his real father’s book company, work experience in a mail room and works as an employee of a large department store in the Christmas section. Buddy is dedicated and keen but, overall, was he a good employee (by UK employment law standards)?

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Unions continue to claim that Christmas songs harm workers’ health!

 And so this is Christmas… Jingle bells, jingle bells, jingle all the way… Frosty the snowman…

Walk into any shop at the moment and a medley of these little Christmas musical chestnuts will most likely be playing. And what could be more wonderful than being reminded of the joy of Christmas whilst elbowing your fellow Christmas shoppers out of the way to look for some suitably dull socks for Uncle Albert?

Well, unfortunately, some workers have written to Santa to request the banning of Christmas songs in their workplace! Now, that’s a bit extreme but let’s back up a little bit here.

For some years now, various worker unions around the world have protested against Christmas songs being played on loop in shops. Why? Well, at their nicest, unions have (pretty fairly you would imagine) described constantly looped Christmas music as ‘annoying’ and potentially ‘frustrating’ to their workers. However, the most forthright unions have gone so far as to say it ‘risks the mental health’ of workers.

So, what’s the truth?  Well, as always, it depends on the circumstances.

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Not so silent night – Christmas parties gone wrong!

Ahhh the office Christmas party. The supposed annual nightmare for the HR Team. Of all the traditional Christmas-related workplace events, the Christmas party sure is the one that surrounded by the most myths.

HR Departments sending out pre-Christmas party checklists? Alcohol being banned? The party itself replaced with a simple lunch or, even more severely, not held at all to avoid legal claims or grievances? I mean, just type ‘office Christmas party’ into an online search engine and you’ll see exactly what I mean.

In recent years, perhaps not unsurprisingly, some employers have simply stopped having Christmas parties to avoid the hassle and stress of dealing with the ‘troubles’ that emerge. You’d think that, as an Employment Law Solicitor, I’d see that as a good thing? Absolutely not! So, why is that?

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