Tom is an Associate Solicitor, who joined the Employment Team in August 2017. Tom deals with all areas of Employment Law but has extensive experience in disability discrimination and unfair dismissal claims on both sides. His varied experience of acting on both sides of tribunal claims allows him to offer employers detailed and accurate guidance as to likely next steps and effectively analyse disputes.

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?

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.

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)?

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.

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?

The Santa Clause: Employment Law issues in Lapland

Penguin Santa You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa!

So, why the low media presence? Where is Santa?

On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland).

Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

Can an employee be disciplined for looking for another job?

Job Application Form You’d think this would be a weird question but I actually get asked this question on a fairly regular basis. Thankfully, I mostly get asked it by employees rather than employers but, in saying that, I can recall two employers (at a past law firm) that asked me this exact question.

The answer? Quite simply: it depends. It depends on the circumstances but, theoretically, yes, an employee can be disciplined for job hunting. In practice, however, it would be a rare occasion where an employer could safely do so.

To explore the dividing line, let’s look at three examples.

Is sacking an employee who has miscarried an act of pregnancy-related discrimination?

Employment Law book Earlier in my legal career, I helped advise an individual who was subjected to detrimental treatment by her employer due to time off linked to a miscarriage. Naturally, I won’t identify the individual or the specific facts here but, save to say, their employer’s conduct made a very difficult situation even more stressful.

The biggest surprise I experienced during that case was their employer trying to argue that a miscarriage wasn’t pregnancy-related under the Equality Act 2010 because the employee wasn’t pregnant anymore. This is completely incorrect. Why?

Calls for Government to adopt German model of redundancy protection for pregnant employees

Baby Toy There has been a sizable amount of space afforded to pregnancy-related discrimination in the media this past year. In fact, that’s one of the reasons for this series of pregnancy-related blogs. As such, it is becoming increasingly difficult for employers to escape accusations of pregnancy-related discrimination when it arises. This being said, there are charitable organisations out there that believe that more needs to be done: one of these charities is Maternity Action.

During the past week, Maternity Action have released a report (named “Unfair Redundancies”) calling on the Government to strengthen anti-redundancy protection for pregnancy employees. The most eye-catching statistics quoted by the charity include that 1 in every twenty mothers are made redundant during their pregnancy, maternity leave or return to work and that 77% of pregnant women felt discriminated against during their period of pregnancy.

Before we continue, let’s just dial down into that first statistic for a moment.

“Our Line Manager has made discriminatory comments to a pregnant employee?”

Baby's crib with teddy“Our Line Manager, Rosemary, has made discriminatory comments about a pregnant member of staff, Thyme. Her comments include stating that Thyme “has baby on the brain” and has a “poor attitude”. Thyme has complained to the HR Director and is demanding action. What can we do and what could we be facing?”

Thankfully, the above scenario is hypothetical and not a client email. However, some managers do fall into the trap of making discriminatory comments against pregnant staff members and, in doing so, place their employers at risk.

As most employers are aware, pregnant workers obtain advanced protection from detriment under employment law. Contrary to popular belief, this doesn’t entirely prevent genuine concerns about an employee’s conduct and/or performance being formally investigated as long as they have nothing to do with their pregnancy. Unfortunately, in this case, the line manager’s comments appear to be entirely influenced by the Rosemary’s pregnancy and that is a big risk for the employer.