Office Christmas Party Hi-Jinx!

Ah yes! Christmas – time for office parties and merriment – and embarrassing blunders! Employment lawyers love Christmas and in particular the nice little crop of litigation cases that result from Christmas parties. It’s always fun to see the normally prim and proper colleagues imbibe just a bit too much and then tell their boss what they really think of them! Gross misconduct dismissals are based on such things! Other typical occurrences which have employment lawyers rubbing their hands are minor arguments at the party which, seen through the bottom of an empty whisky glass, take on huge proportions and end up in bloody noses! And what about the well meaning manager who, after ten pints or so is VERY happy to offer his secretary a 100% wage increase, or to tell her that his wife has never understood him and he would welcome the opportunity to expand on the subject in a private room somewhere…..?

Employers are potentially liable for the actions of their employees while at the firm’s Christmas party. Make sure you warn your employees that they must control their alcohol consumption and their conduct at the office party, or they will face disciplinary consequences in the cold light of day on 4th January!

That apart, enjoy your office party. Stay (relatively?) sober and have a great holiday!

Flexible Working Arrangements increase as recession continues

Flexible working is still often seen solely as a benefit for part-time working mothers with young children. However, a new guide for managers, published by the Equality and Human Rights Commission, shows how employers in many different sectors are gaining better business results from making alternative work patterns widely available to employees.
A medium-sized engineering company in the Midlands making components for the car industry is not an obvious place to find flexible work arrangements. But Stuart Fell, owner of West Bromwich Tool and Engineering Company, told ‘The Times’ in October that two-way flexibility between him and his workers is at the core of his business model. Moreover, it a key ingredient in the success of his business.
The company, which makes pressed metal parts for large manufacturers such as BMW and Nissan, employs about 100 people on nearly 50 different working arrangements. “On paper, it seems very complicated,” Mr Fell said, “but it works very well and the company and employees each get what they need.
“This adaptable and ever-changing arrangement has proved to be capable of producing high performance and is not complicated to manage.”
He says that some employees would not be working for the company without the flexible options, ranging from variable start and finish times to early and late shifts, term-time working and time off at short notice. People are willing to come in early or stay late to get things done when necessary, he said. “There is business we have won because we have been able to respond quickly to a customer demand.”
Based on trust and two-way dialogue between managers and employees, the policy helped when the recession forced the press works to move employees to a four-day week at 80 per cent of pay for three months earlier this year. “When we told them these were extraordinary circumstances and things were bad, they really understood that it was serious and necessary and believed that we were telling the truth.”
Helen Mahy, company secretary at National Grid, which runs gas and electricity transmission networks, has a team of 70 in the UK, about half of whom have formal or informal flexibility, for example working from home for part of the week. This has helped her to recruit and retain skilled people. In general, company secretaries’ departments are fairly traditional, she said, also speaking to ‘The Times’, “There’s a view that you have to be where the board is and where the management and head office are. Yes, you do — but you don’t all have to be there at the same time.”
Handled well, flexibility gives managers a powerful tool to respond to both customers’ and employees’ needs. The business benefits documented in the guide include greater efficiency and productivity, better customer service cover, improved staff retention, reduced absenteeism, more efficient use of workspace and an enhanced reputation as an employer.
Despite the benefits, however, some industries remain resistant to flexible working. An Equality Commission report last week on flexible working for fathers showed that construction, manufacturing, retail and transport were the industries least likely to offer non-standard working arrangements.
Some employers fear that flexible working could be costly, complicated or even harmful to the business — yet more than 90 per cent of small businesses surveyed by the British Chambers of Commerce reported that set-up costs were zero or minimal. More than 70 per cent said that flexibility improved employee relations and more than half reported higher productivity.
• Working Better: A managers’ guide to Flexible Working by Alison Maitland for the Equality and Human Rights Commission, is available free at www.equalityhumanrights.com/flexible

Eurostar

There have been calls for the resignation of the Chief Executive of Eurostar. To me, they seem misplaced. Yes, he’s the head and public face of an organisation that has failed about a hundred thousand people at a very important time, but, if he goes, what good would that do and who would take his place?

Sol Campbell to go to Manchester United? Short term contract

Injury stricken Manchester United are rumoured to be appraoching the out of contract (or unemployed) Sol Campbell.

United boss Sir Alex Ferguson has only one first team defender available at present and has resorted to playing numerous players out of position (albeit successfully) to fill the gap. Although this cannot carry on long term.

Ex England Sol Campbell possesses a wealth of talent and would more than confidently fill the gap.

Being unemployed at the moment, plus the chance to play for Man United, if there is any truth in it I am sure Sol will jump at the chance.

Manchester United could benefit from putting him on a fixed term contract (say 6 months) then when injury free they can thank him and part ways with no nasty termination payments.

Michael Owen was out of contract, and look at what a sensational (and inexpensive) choice that was by Manchester United.

Obviously a “Win Win” situation for Man United & the unemployed Sol Campbell

updates

If you’re a subscriber you may have noticed a few changes in the appearance of the site. One of the particular characteristics of CLB Business Solutions and CLB Employment Solutions is that we look after the website ourselves rather than using a web company so we have full control. I’m currently undertaking a “makeover” of the site so you may see mismatching graphics while that’s happening. Don’t worry – all the content is there and fully accessible and I hope that you find the improvements to your liking. Please let me know what you think by commenting on this post or emailing me at martinmalone@clbemployment.com.

Twitter / LinkedIn

Nothing to do with CLB Business Solutions but if you want to find me on Twitter I’m here. As you see in so many places, if you do visit “the views expressed by Martin Malone are not those of Canter Levin & Berg or CLB Business Solutions”!

If you want to find me on LinkedIn you can find me here.

I use Twitter for random tweets and intend to start using LinkedIn for work stuff (as soon as I have a bit of free time!!)

£800,000 payout in News of the World bullying case

In August 2005, News of the World sports reporter Matt Driscoll was asked to “stand up” a tip that Arsenal were going to play in purple shirts. He didn’t and the story appeared in The Sun. The Stratford employment tribunal found that, from this point, Mr Driscoll was subjected to intense scrutiny and he started suffering from anxiety attacks. In July 2006, the day after his birthday, he was admitted to hospital with a suspected heart attack. The following day his boss, Andy Coulson, sent an email to colleagues saying that he wanted Mr Driscoll out “as quickly and cheaply as possible”. He says that he felt that he was “under siege”. He was asked to return his company car and his mobile phone was cut off so he lost all his contacts. In an interview with The Independent he says:

“I was getting three or four phone calls, emails and recorded delivery letters every day from the managing editor. They even sent a nurse.”

The tribunal summarised their findings:

“We find the behaviour to have been a consistent pattern of bullying behaviour… with the intention to remove him from their employment, whether through negotiating a settlement package or through a staged process of warnings leading to dismissal.

“The original source of the hostility towards the claimant was Mr Coulson, the then editor of the News of the World; although other senior managers either took their lead from Mr Coulson and continued with his motivation after Mr Coulson’s departure; or shared his views themselves.”

The case is particularly notable for three reasons. First is the amount of compensation awarded – £792,736 – including £10,000 aggravated damages for the “high-handed and oppressive” way in which the News of the World dealt with the matter. The bulk of the compensation was based on loss of earnings.

The second point of interest is that Andy Coulson is now David Cameron’s “Alistair Campbell”! It is reported that he went purple faced when told about the award.

The third is that, strangely(?), the story has not been widely reported!

PS – If you think this award is high, look out for our December newsletter in which we’ll be reporting on claims for £10m and £30m!

protection from discrimination based on belief in man-made climate change

Climate change is in the news with the furore caused by the publication of emails from the University of East Anglia’s Climatic Research Unit which have been seized on as suggesting that scientists have deliberately overstated the extent of man-made climate change and a recent survey which suggests that more than half the public don’t believe in climate change since the planet has cooled in the last decade.

By coincidence, in Grainger plc -v- Nicholson, which made the front page of The Independent, the EAT was asked to decide whether a belief in man-made climate change was capable of constituting a “philosophical belief” for the purposes of the Employment Equality (Religion of Belief) Regulations 2003.

The Regulations are often referred to as providing protection from religious discrimination but they also cover “belief” which, according to the Regulations means “any religious or philosophical belief”. There is an intriguing discussion in the judgment concerning what constitutes a philosophical belief. In Williamson -v- Secretary of State for Education and Employment it was held that it is not the function of a tribunal to enquire into a belief and judge its validity by some objective standard so that the protection is in respect of the subjective belief of the individual.

When the Regulations were initially published they referred to “religion or similar philosophical belief” but the word “similar” was removed by the Equality Act 2006 following objections from humanists and atheists.

After considering numerous authorities covering topics such as veganism, corporal punishment, pacifism and total abstinence from alcohol Mr Justice Burton suggested that restrictions limiting the definition of philosophical belief would include requirements that:

  • the belief must be genuinely held;
  • it must be a belief and not just an opinion or viewpoint;
  • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance; and
  • it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

As an aside, the judge observed that belief in the supreme nature of Jedi Knights would fail on the basis of non-compliance with at least four of these limitations.. However, socialism, Marxism, communism and free-market capitalism might qualify. Fascism would fail and that is of marginal coincidence taking into account Nick Griffin’s suggestion that climate change is a leftwing conspiracy.

So what does Tim Nicholson believe? According to his witness statement:

“2. I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change.
3. It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears. For example, I no longer travel by airplane, I have eco-renovated my home, I try to buy local produce, I have reduced my consumption of meat, I compost my food waste, I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale.”

Mr Justice Burton concluded that Mr Nicholson’s asserted belief upon which he based his claim of discrimination was capable of being a belief for the purposes of the Regulations, but at any full hearing he would need to be cross-examined as to the genuineness of the belief. Before the claim could succeed there would also need to be evidence to support Mr Nicholson’s claim that he was dismissed on the grounds of his belief rather than, as the employer claimed, redundancy.

The case is an important reminder that employers must not take such matters lightly. It is easy for employers to be dismissive of them because this is a new and fast developing area of protection for employees. As ever, the advice is to be cautious and to take professional advice. If he succeeds with his claim, Mr Nicholson is in line for unlimited compensation.

costs in appeal proceedings / vexatious litigants

Employers often voice concerns about the costs incurred in defending employent claims taking into account that tribunals rarely make costs orders against unsuccessful claimants. Tribunal have a discretion to order costs where they are of the opinion that the party (in bringing the proceedings) or the party or their representative (in conducting proceedings) has acted vexatiously, abusively, disruptively or otherwise unreasonably, or that the bringing or conducting of proceedings has been misconceived and the tribunal considers that it would be appropriate for the paying party to pay costs to the receiving party in those circumstances.

A claim may be regarded as “vexatious” if it is brought to spite the employer or “misconceived” if it stands no reasonable prospect of success.
Earlier this year the Employment Appeal Tribunal overturned a tribunal’s decision not to award costs in a race discrimination case. The tribunal found as a fact that the employee had not been subjected to a racially abusive as had been claimed. However, the tribunal took the view that costs should not be awarded because the claimant had not acted unreasonably in bringing or conducting the claim. However, the EAT decided that since it was found that the statement was not made, the assertion that it was must have been a deliberate and cynical lie on the part of the employee. As a result it was perverse for the tribunal to find that this was not unreasonable conduct. As a result the employee was liable to pay the costs of the employer in the tribunal proceedings and the appeal.

More recently the issue of “serial litigants” has been in the news. It was reported by Donal McIntyre on Radio 5 last weekend that there has been a spate of multiple claims brought by an unnamed “serial litigant” with a view to securing settlement payments from employers. The individual concerned doesn’t go to tribunals, relies on settlements before hearings and, according to the Daily Telegraph has brought more than 150 claims. Many of the claims are based on job adverts and based on age discrimination.

In an attempt to tackle the problem, lawyer Gordon Turner has set up www.serial-litigants.com, a site which enables employers to search for individuals who have brought multiple claims in the employment tribunal. Of course, merely having brought previous claims is not in itself evidence of unreasonable conduct but in extreme cases awareness of the claims history is a useful additional tool in the employer’s armoury.

Meanwhile, the Court of Appeal has issued guidance on employees seeking orders capping or restricting liability for costs in appeal proceedings. The case of Nadia Eweida made the news when Ms Eweida claimed religious discrimination when she was not allowed to wear a visible religious cross when working at a British Airways check-in desk. Her claim was dismissed but she appealed to the EAT. The EAT also dismissed her claim and she obtained permission to appeal to the Court of Appeal. Her legal representatives acted for her under a conditional fee agreement and applied on her behalf for a a protective costs order which would prevent her employer recovering costs from her if she was unsuccessful. A single Lord Justice refused the application without a hearing but allowed an order capping costs at £25,000. The matter was referred for a full hearing. The Court of Appeal confirmed that a protective costs order could not be made and decided that, even it was possible, such an order should not be made in this case. The costs capping order was discharged because it could not be shown that there was a real risk of the costs being disproportionate and any issue of disproportionality, if it did arise, could be dealt with by the costs judge when the matter was concluded.

Incidentally, the case is a useful reminder of the huge costs which can be at stake when cases are appealed.

A significant benefit to our subscribers who take out insurance is that they are protected against both their own and their opponents’s costs in employemnt tribunal proceedings. In the vast majority of cases, the saving in just one case more than justifies the cost of the insurance and, of course, it’s one less thing to worry about.