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?

123 days to go: Is it time to start thinking about Christmas?

I love Christmas! Absolutely, utterly love it. As my friends and family will tell you, I’m the guy with the Christmas countdown app on my iPhone, the colleague who hangs obscene amounts of tinsel and Christmas paraphernalia around my desk and, every year in September, start googling Christmas Market trips in Europe (last year was Brussels, which is highly recommended!)

Surprisingly, however, it isn’t the quirky number of 123 days to go which has prompted this blog. Rather, it was a recent news article on the BBC News website entitled “Forget summer, it’s time to preare for Christmas” – a link can be found here. The article is mostly about employers preparing their product range for Christmas but, from an employment law perspective, it made me think about the ways in which businesses also need to manage personnel and policies to ensure an effective, stress-free Christmas period.

I’d be missing a clear open goal if I didn’t use Santa as my example employer here. So, here we go, let’s get some pre-planning in place to get Santa ready for Christmas!

Is a person on long term sick leave assigned in the event of a TUPE transfer?

Since the TUPE regulations were revised in 2006 there has been an obligation for transferors to disclose details of the workforce to transferees. This normally takes the form of a schedule detailing the employees, their job titles and main duties and any specific contractual rights. Disclosure also extends to detailing those on sick leave and any outstanding grievances or disciplinary matters. Employers also need to be careful to adhere to data protection requirements, as emphasised by the Information Commissioner. This is normally achieved by anonymising the information.

The general view is that the disclosure requirement extends to the entire workforce (in the event of a full transfer), or at least that part of the workforce that is subject to the proposed transfer. The technical definition set out in TUPE is “an organised grouping of employees. If this grouping has as its principal purpose the carrying out of services for a particular client, this is often referred to as a service provision change. But what of employees on long term sick leave? Do they form part of the workforce?

In BT Managed Services Limited v Edwards and Ericsson Limited Mr Edwards was employed by BT Managed Services (BTMS) as a field operations engineer. His employment commenced in 1994 with Orange and he was TUPE transferred to BTMS in July 2009. He worked on a domestic network outsource (DNO) contract providing operational maintenance for Orange and EE mobile phone networks. It was accepted that the team was an organised grouping of employees situated in Great Britain which had as its principal purpose the carrying-out of activities (the DNO contract) on behalf of a client (Orange) and therefore fell within the scope of Regulation 3 of TUPE.

In May 2006 Mr Edwards commenced long term sick leave as the result of a variety of ailments including a cardiac condition which meant that he could not undertake the strenuous work required of members of the team. There were unsuccessful attempts to provide him with less strenuous work and he was regarded as permanently incapacitated from the commencement of his sick leave. He last worked in January 2008 but remained an employee so that he could enjoy the benefits available under the employer’s permanent health (PHI) scheme. Once benefits under the insurance scheme expired BTMS continued to pay him (as an expense of the DNO team).

In December 2012 the DNO contract transferred to Ericsson following a tender exercise and the service provision change took place in June 2013. At the time of the change it was accepted that there was no prospect of Mr Edwards ever returning to work. It was held in the Employment Tribunal that he was not assigned to the grouping transferred pursuant to Regulation 4 of TUPE “because he did not contribute to the economic activity of the grouping”. It is worth noting that Regulation 4 does not include any express requirement that an employee must contribute to the economic activity of the grouping so the decision was based on the Tribunal’s interpretation of the Regulation.

Employment Judge Davies found that Mr Edwards had ceased to be a part of the grouping in 2010.
…it was essentially by default that such contact as there was with him and such steps as required to be taken in relation to him, were done by the same managers; that he continued to have the [operational unit code] for the DNO contract; and that costs associated with his employment were attributed to that contract. However, in view of the other factual circumstances, that did not mean that he was as a matter of fact still assigned to the organised grouping of resources and/or employees.

What seems to me central is the decision made in 2010. as the findings of fact…make clear, an essentially pragmatic decision was taken by Mr Hunt and Mr Gilmour to keep the Claimant permanently absent to continue to receive PHI payments.

…he was not assigned to the grouping. It was not contemplated that he would thereafter provide any work or carry out any of the activities under the DNO contract. What was contemplated was simply that he would remain on the books to continue to receive his PHI payments at no cost to BTMSL.
In the Employment Appeal Tribunal BTMS said that the Tribunal should not have treated the question of where Mr Edwards would have been required to work as one of the criteria to be taken into account in determining whether he was assigned to the grouping. Mr Edwards would have been required to work in the DNO team if he was able to do so so he was assigned and the question of whether he was able to do so was irrelevant.

More issues concerning employee rights and social media

As we all know social media is an increasingly pervasive aspect of many of our daily lives. As I have previously reported the interaction between the publication of information by individuals on their personal social media platforms and rights at work can create significant problems.

This issue returned for judicial scrutiny once again this month in the Employment Appeal Tribunal decision in the case of British Waterways Board v Smith.

Mr Smith commenced employment with British Waterways Board, trading as Scottish Canals, as a manual worker in April 2005. Staff worked a seven day rota with standby for seven days one week in each five. Mr Smith was one of a team of eight, described by the Employment Tribunal as “not a happy team”. In 2012 and 2013 Mr Smith raised a number of grievances covering health and safety issues and an allegation of bullying and harassment by certain managers and supervisors. After investigation and an occupational health report was obtained a recommendation was made for mediation. Mr Smith did not want to attend mediation but it was nonetheless arranged to take place on 23 May 2013. On arrival with his union representative he was told that the mediation was not going to take place and, instead, he was suspended from work as a result of comments retrieved from his Facebook page.

The information retrieved included derogatory comments about managers and a reference to “being drunk while on standby”. Comments found by the Employment Tribunal to have been posted by Mr Smith are listed in the judgment. I won’t reproduce them here. Suffice to say that they use very strong language and are clearly very derogatory about Mr Smith’s employer and his managers.

Mr Smith admitted that he had posted the comments but said that he had not intended to offend anyone and that he had been “indulging in banter”. He said that it was typical to slag off the person on standby and that he had not in fact been drinking. However he also maintained that his Facebook page had been hacked and he did not know that the settings had been changed from private to public.

A disciplinary investigation report was prepared. It was noted that the posts were in any event public and available to be read. They were therefore likely to damage the reputation of both the employer and Mr Smith’s manager. The reference to being drunk while on duty gave the impression of a risk to public health. It was recommended that there should be a disciplinary hearing. Reference was made to the Company’s disciplinary and email and internet policies, the latter including the following:
The following activities may expose [British Waterways] and its employees, agents and contractors to unwarranted risks and are therefore disallowed…Any action on the internet which might embarrass or discredit [British Waterways] (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)…
Mr Smith said that despite what was on Facebook he had never been drunk while on standby. The other things he had said were also in jest. He thought that the timing of the allegations provided a convenient way to prevent his grievance from being investigated. He repeated that he thought that his Facebook page had been hacked and the security settings changed. Notwithstanding his mitigation Mr Smith was summarily dismissed from his employment by letter sent on 4 June.

Is a settlement payment taxable?

One of the most frequently asked questions in HR is whether or not a settlement payment is taxable. Several different and apparently conflicting answers can all be correct, depending on the circumstances. In 2014 I wrote about the £30,000 tax exemption which does not apply in all circumstances and in 2011 I highlighted a potential trap for employers.

Now we have a further and significant contribution in the form of a decision by the Tax Chamber of the First Tier Tribunal in the matter of Mr A v HMRC. It is a basic principle of tax law that earnings are taxable. Unsurprisingly HMRC interprets “earnings” widely as including any payments in respect of which earnings are involved (section 62 Income Tax (Earnings and Pensions) Act 2003). As a result severance payments are frequently regarded as taxable (subject to the £30,000 exemption pursuant to sections 401 to 404A of the 2003 Act when applicable).

Mr A worked as a trader for a Bank in London. His job title was managing director and he was on a basic salary of £120,000 plus eligibility for the Bank’s bonus scheme. In the period from 2003 to 2007 he received significant bonuses based on the bank’s overall performance. In 2007 there was a dispute concerning his bonus and when the Bank was bought out he was made aware of imminent redundancies. He raised grievances including allegations of race discrimination (based on inappropriate comments made by the bank’s chairman and vice chairman).

In early 2008 he raised further grievances including the fact that other directors had received bonuses and he had not. A questionnaire was sent to the employer in accordance with the relevant provisions of the Race Relations Act (as it then applied). On March 2008 the Bank informed Mr A that he was to be made redundant and he was offered £1650 in statutory redundancy pay and a further ex gratia redundancy payment of £48,898. A couple of days later Mr A was offered a further payment if he agreed to sign a compromise agreement (now referred to as a settlement agreement). The agreement provided that in addition to the payments already offered he would receive a further payment of £600,000 in settlement of all outstanding claims. The terminology used will be familiar to those who have dealt with settlement agreements:
The parties have entered into this Agreement to record and implement the terms on which they have agreed to settle all outstanding claims which the Employee has or may have against the Employer…arising out of or in connection with or as a consequence of his employment and/or its termination. The terms…are without any admission of liability on the part of the Employer…
Unsurprisingly HMRC queried the £600,000 payment and asked for a detailed breakdown of what it consisted of.

is an employee suffering from depression and anxiety disabled?

If you ask an employer or HR manager whether a diagnosis of depression and anxiety means that an employee is disabled for the purposes of the Equality Act most, probably erring on the side of caution, would reply in the affirmative.

Many GPs sign off employees as suffering from anxiety and/or depression, sometimes adding that it is work-related, which opens up a whole new area from the employer’s perspective. It is not the employer’s function to second guess the diagnosis but many will, perhaps after a few weeks of absence, refer the employee to an occupational health consultant, for examination and a report.

According to the Equality Act 2010 a person is disabled if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Many people know that, in simple terms, “long term” means 12 months. However the Act says that an impairment is long term if it has lasted for 12 months, is likely to last for at least 12 months or for the rest of the life of the person affected. In addition, if an impairment ceases to have a substantial adverse effect it is to be treated as continuing to have that effect if it is likely to recur.

In Saad v University Hospital Southampton NHS Trust and Health Education England the Employment Appeal Tribunal considered the meanings of both “substantial adverse effect” and “long term”.

Mr Saad was a specialist registrar in cardiothoracic surgery. He maintained that he had a disability within the meaning of the Equality Act 2010 based on a diagnosis of a depressive and general anxiety disorder. He said that his condition impacted in the work environment including his ability to communicate with colleagues, access the workplace and concentrate. In addition the condition was long term, even though the symptoms fluctuated over time.

At an employment tribunal it was accepted that he suffered from a depressive and general anxiety disorder. However this did not have a substantial adverse, nor a long term, effect on his ability to carry out normal day-to-day activities. Accordingly his claim failed.

On appeal it was accepted that communication with colleagues, ability to access the workplace and concentration all formed part of normal day-to-day activities. His barrister contended that, taking into account decisions of the European Court disability should mean a “limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full effective participation of the person concerned in professional life on an equal basis with other workers”.

It was noted that Mr Saad had been employed under a series of fixed term contracts from early 2003 until September 2012. He raised a number of grievances with his employer in July 2011 and was signed off work by reason of ill health and, apart from a brief spell in February 2012, did not return to work. He was initially signed off with a diagnosis of pain and insomnia and was subsequently diagnosed as suffering from anxiety and depression. In the tribunal he gave evidence about his condition:

He becomes tense and anxious if he is near UHS or unexpectedly sees anyone from UHS. He cannot speak with colleagues on the telephone about hospital issues and when he has met colleagues unexpectedly he has become anxious and started to sweat and shake. There was no indication of when or how often this had occurred. He was “totally confined” to his flat and could not leave it unless it is absolutely necessary to do so, which means he cannot undertake shopping or go out for walks. He could not read two books which he purchased because he found it difficult to concentrate. He now deletes all emails he receives which are, or may be connected with his medical work.

The tribunal noted that there was no evidence concerning when and how often these symptoms occurred and the extent to which they impacted on his day-to-day activities. Contradictions emerged when he was cross-examined. He had looked after himself while his wife was away and had travelled abroad on at least three occasions. He had been able to go out walking and take exercise and had not encountered any difficulties in taking part in the proceedings, including attendance at employment tribunal hearings. Further, in November 2011 he had reported that he was fit to return to work. However he could not do so because of ongoing procedures with the employer and because of his anxiety about returning to his existing job. More specifically he told his GP that he had been fit enough to return to work but had not done so because he did not want to work with his former colleagues.

Catholic midwives lose abortion case

The right to respect for religious and philosophical beliefs often turns on the question of where to draw the line, whether it concerns the wearing of religious symbols or what, in fact, constitutes a philosophical belief capable of protection.

Although not directly triggered by the relevant provisions of the Equality Act 2010, in the judgment of the Supreme Court in Greater Glasgow Health Board v Doogan and another, delivered on 17 December, the question of where to draw the line was again to the fore.

Mary Doogan and Concepta Wood are experienced midwives who worked as labour ward co-ordinators. They are both practising Roman Catholics who notified their employer of their conscientious objection to taking part in the termination of pregnancies. Pursuant to section 4 of the Abortion Act 1967 (entitled “Conscientious objection to participation in treatment”):
“(1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

(3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.”
A small proportion of terminations take place in the labour ward rather than the gynaecology ward with a midwife being assigned to give these patients one to one care. The job of the labour ward co-ordinator includes booking in patients, allocating staff in the ward and supervising and supporting midwives. Both respondents believe that human life is sacred from the moment of conception and that termination of pregnancy is a grave offence against human life. They also believed that any involvement in the process of termination rendered them liable as accomplices and therefore culpable for that grave offence. The hospital took the view that delegation, supervision and support did not constitute “participating” in the treatment and therefore rejected their grievances.

Both brought judicial review proceedings which were unsuccessful. They appealed to the Inner House (the Scottish equivalent of the Court of Appeal and succeeded. Lady Dorrian, delivering the lead judgment, stated:
The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.” (emphasis supplied by the Supreme Court)
The Supreme Court unanimously disagreed. Lady Hale, delivering the lead judgment, focused on what was meant by “participating in any treatment authorised by this Act to which he has a conscientious objection”.

getting appeals right

In Blackburn v Aldi Stores Ltd the Employment Appeal Tribunal looked at whether a failure to provide an adequate appeal in a grievance procedure could amount to a breach of mutual trust and confidence and thus a constructive dismissal, and concluded that it could.
Mr David Blackburn commenced work with Aldi in 2006 as a light goods vehicle driver. He is a retired police officer and his background was as a vehicle examiner and health and safety trainer. Throughout his employment at Aldi he had concerns about health, safety and training at the depot where he was based. He raised his concerns in particular with Mr Gallivan, the deputy transport manager. It was accepted in evidence that on one occasion Mr Gallivan waved him away, swore at him, said the training was “shit” and told him to “fuck off home”. In fact the depot came out well in audits of vehicle inspection and health and safety.
However there was another flare up with Mr Gallivan in June 2009 and this led to Mr Blackburn raising grievances concerning both Mr Gallivan and a section manager, going back over some time. Normally, under the company’s written procedure, the section manager would have been the person to consider the grievance, but as it concerned him, the next person for it to go to was the logistics manager. But there was no logistics manager – so the regional managing director, Mr Heatherington, dealt with the grievance instead. He met twice with Mr Blackburn, notes were taken and the meetings were recorded. He also spoke with potential witnesses. He reported his findings in detail and upheld the grievance in part. Mr Blackburn was not satisfied and appealed, copying his notice of appeal to the managing director. Remarkably, Mr Heatherington dealt with the appeal himself, holding a brief appeal meeting.
What happened at that meeting was disputed, with Mr Blackburn saying that he was barely permitted to speak and was given a dressing down. Mr Heatherington put forward a rather different version. Mr Blackburn maintains that he was told by Mr Heatherington that his decision was final and he had to accept it. He also alleged that Mr Heatherington had told him that he was anwerable to no-one and that he was in overall charge.
Six days later, Mr Blackburn resigned and started constructive dismissal proceedings. Having started the claim on the basis of a breach of mutual trust and confidence, permission was sought to add an allegation that the grievance procedure had been contractual and there had been a breach of an express term – but this was refused.

right to be accompanied by a “reasonable” companion?

It is well known by nearly all employers that their employees have a right to be accompanied at any disciplinary or grievance meeting that they are required to attend, if they reasonably request a companion. However, it still surprises me how often we encounter employers who ignore this and pretty much all other employment rights. Unsurprisingly they tend to be the employers who are least impressed with and most penalised by employment protection legislation and the corresponding employment tribunal system.
The case of Toal & Hughes v GB Oils Ltd does not concern such an employer but does address a question often asked by employers – “do I have a say in who the employee brings along as their companion at a disciplinary / grievance hearing?”. Mr Justice Mitting, sitting in the Employment Appeal Tribunal, has confirmed that although the request for a companion must be reasonable, the companion may be from any of the permitted categories – a paid trade union official, a trained union representative or fellow worker, reasonable or not. Further, if when denied his or her choice of companion, the employee settles for someone else, that does not mean that the employee has waived their right to their choice of companion.
Messrs. Toal and Hughes raised grievances against their employer. Both made it very clear to the employer that they wanted a particular Unite official, Mr Lean, to accompany them at the grievance meetings. The employer was unwilling to allow them to be accompanied by Mr Lean so they arranged for a fellow worker, Mr Hodgkin, to come along instead. They were dissatisfied with the outcome and at the ensuing appeal hearing they were accompanied by Mr Silkstone who, like Mr Lean, was an elected union official.
Complaints were made to an employment tribunal that they had been denied their statutory rights. It was decided that the employer had not acted in breach of the statutory obligation in section 10 of the Employment Rights Act 1996 (right to be accompanied). The tribunal considered whether the word “reasonable” applied to anything other than the request to be accompanied at the hearing. It was contended on behalf of the employer that it also applied to the choice of representative. This contention was rejected. Mr Lean satisfied the criteria for selection as a representative and the legislation provided for a worker to be accompanied by one companion chosen by the worker. The employer was in breach of the legislation by rejecting Mr Lean as the chosen companion.
However, the tribunal then went on to conclude that the breach was waived as a result of the subsequent selection of Mr Hodgkin, commenting that the fact that he was a second choice was “immaterial”.
In the Employment Appeal Tribunal Mr Justice Mitting pointed out that an employee must request to be accompanied at a hearing but also noted that it is widely accepted that good employment practice dictates that an employee should be told that he or she has the right to make the request. He also observed, reasonably, that it is not entirely clear why Parliament included the word “reasonably”. In any event, considered in context, it does not apply to the choice of companion. It is the right of the worker because otherwise an employer might wish to place a worker at a disadvantage by interfering with his or her choice.

what do you do if someone is too afraid to give evidence?

In Duffy v George the Court of Appeal has considered what a tribunal should do if a claimant is too frightened to attend a hearing. It is easy to imagine situations, particularly with discrimination cases such as this one, in which a distressed employee or former employee is scared of attending a hearing at which the alleged discriminator will be in attendance. As with criminal proceedings it is well known that people may choose not to proceed with what would otherwise be entirely justified claims so that there is a serious risk of injustice, often based on the opponent’s continuing threats or other bullying behaviour. Obviously a most unsatisfactory state of affairs.

Susannah George worked for Taylor Wimpey Homes as a sales executive and Michael Duffy was a projects manager. Ms George complained about sexual harassment by Mr Duffy, exemplified by him giving her a sex toy as a Valentine’s gift and sending her “sexy text messages”. Mr Duffy countered the allegations by claiming that Ms George “gave as good as she got”. Ms George resigned and shortly thereafter Mr Duffy was dismissed.

Ms George brought proceedings against Taylor Wimpey Homes and Mr Duffy. Shortly before the employment tribunal hearing the claim against the former employer was settled. The hearing against Mr Duffy was adjourned. Mr Duffy then sent Ms George a horoscope with, according to the judgment, “a comment implying that she had made up the allegations and would suffer for it”.