August employment news from abroad

Posted on August 26, 2012 by Martin Malone

Welcome to the Employment Solutions Blog from Saint Martin de Gurson (a small village between Bordeaux and Bergerac in South West France). As I hope you’ll understand this month’s report is a condensed version of the usual monthly report but I hope that you find some items of interest.

1. what happens if a claimant refuses to co-operate in obtaining medical evidence

GCHQ v Bacchus is a case in which Mr Bacchus failed to attend an appointent so that GCHQ could obtain its own psychiatric evidence in connection with his claim for disability discrimination based on anxiety. He was ordered by an employment tribunal to attend an appointment but did not do so. The tribunal nonetheless proceeded on the basis that it already had medical evidence (provided by the claimant). GCHQ appealed successfully to the Employment Appeal Tribunal. The EAT agreed with its submissions that it was unfairly disadvantaged by being unable to obtain its own medical evidence. However, the claim was not struck out. Instead, the EAT made an “unless order” requiring the claimant to attend the medical examination, failing which his claim would be struck out.

The case highlights a notable distinction between employent tribunal procedure and that which applies for personal injury claims in the county court. The standard court procedure is for the claimant to nominate proposed medical experts. If one is accepted by the defendant then a single report is prepared. However, the expert is required to make a statement acknowledging that the report is prepared for the court rather than for either party, and should therefore be impartial. On the face of it, there seems no good reason why the same procedure should not apply for tribunals. As I have commented on numerous occasions, taking into account the complexity of many tribunal claims, there is no reason why well tried court procedures should not be adopted.

2. can an employer fairly use a “pool of one” for selection for redundancy

In Wrexham Golf Co v Ingham the Employment Tribunal was asked to consider whether an employer can fairly use a “pool of one” when determining candidates (or, more accurately in this instance, a candidate) at risk of being made redundant. Those who are familiar with redundancy procedures will be aware of the need to be scrupulously fair when selecting a candidate or candidates for redundancy and the need to be able to demonstrate this if called upon to do so. It is generally an essential part of this process to identify what is commonly referred to as a pool of candidates for redundancy from which selections can be made. Often the pool will comprise employees in an under-performing department or those whose duties can be combined so as to reduce the overall number of employees performing a particular type of work. In some cases there might be only one employee performing a job which can de dispensed with.

However, the decision in Ingham emphasises that identifying the pool is but one part of the process of termination of employment which, overall, must be fair. When a tribunal considers the question of fairness a tribunal must consider whether the actions taken by the employer were within a range of reasonable responses available to a reasonable employer. In this case the tribunal had focused unduly on the question of “the pool” to the exclusion of the wider question of overall fairness in the context of the range of reasonable responses. Accordingly the finding of unfair dismissal, even though Mr Ingham was the sole bar steward at the club, was unfair, and the matter was remitted to a fresh employment tribunal for a full rehearing.

3. philosophical beliefs, the Proms and public protest

The BBC Proms 2012 are in full swing and provide those of us who enjoy them with a delightful selection of the finest classical music as particularly demonstrated by a recent concert of some of Vaughan Williams’ Symphonies which I was lucky enough to catch on BBC4 the other day. By the way, I recommend The Broadway Sound on 1 September, conducted by the remarkable John Wilson. Anyway, back to employment news! Sarah Streatfield is a violinist in the London Philharmonic Orchestra (LPO) who protested about a performance by the Israel Philharmonic Orchestra (IPO) at the 2011 Proms. Her protest took the form of a letter to the Independent protesting about the decision to invite the IPO to participate in the Proms. Three other members of the LPO and twenty other musicians were co-signatories.

She was suspended for six months on full pay for “damaging the reputation of the orchestra”. She claimed that the LPO failed to respect her “humanist beliefs” and claimed direct and indirect discrimination as well as harassment and victimisation.

An employment tribunal accepted that her humanist beliefs were capable of protection under the Equality Act 2010. However, since the LPO had no knowledge of those beliefs the discrimination claims stood no reasonable prospect of success. This resulted in the striking out of her claims for discrimination.

However, her claims for victimistation and harassment were not struck out. The tribunal provided an indication of its view of the prospects of the claims succeeding by requiring her to pay a £250 deposit as a condition of proceeding.

The significant aspects of the decision are that the claims for victimisation and harassment may proceed (subject to payment of the deposit) and, much more importantly as a general proposition, that humanism is a philosophical belief which is capable of protection under the legislation.

Many may take the view that this is a very liberal interpretation of what constitutes a philosophical belief capable of statutory protection. Although the decision is not binding on other tribunals, it might well be thought that the border between political and philosophical beliefs has been breached. An interesting philosophical question!

4. making employees on maternity leave redundant

Most employers are aware that treating employees on maternity leave unfairly is likely to result in an expensive claim for discrimination and, perhaps also, unfair dismissal. However, there are circumstances in which, entirely fairly, employees who are on maternity leave, find themselves at risk of redundancy. Since the factors which can lead to the need to redundancies can arise at any time, it is inevitable that, from time to time, those affected, may be on maternity leave. Those who are uncertain about such matters might reasonably decide to postpone redundancies or to exclude employees on maternity leave from the process.

There is an understandable and entirely approrpriate concern on the part of employers that affected employees should be treated fairly and, with this in mind, ACAS has published a guide for Managing Redundancy for Pregnant Employees or those on Maternity Leave. The guide is commendably well written and straightforward and includes really useful case studies which will undoubtedly assist those employers who face this scenario. It is highly recommended reading.

5. £157bn overtime and “nightcations”

This item comes with a source warning! According to research undertaken by Travelodge one in ten Britons are working an additional 16 hours’ unpaid work per week “in order to keep their bosses happy” and take a night off rather than a holiday in order to “recharge their batteries and boost relationships”. Apparently the value of this unpaid work is £157bn, based on an average 9.1 extra hours per week which equates to an average £5,726.18 unpaid work per working person. The report also states that 66% of adults are suffering “soaring stress levels” while 31% find it “difficult to get through the average week”. Apparently 37% of “workaholic Britons” are opting for “nightcations” instead of longer holidays.

According to Shakila Ahmed of Travelodge:

This year we have experienced a significant rise in just Saturday night bookings compared to previous years. To obtain a better understanding of the rationale behind this trend we commissioned research to investigate how the economic crisis is affecting the psychologies of British holidaymakers.

Our research findings have highlighted that Nightcation breaks are a growing trend amongst Britons as they are an easy to book, cost effective short break that help workaholic Britons recuperate and recharge for the week ahead.

Travelodge tell us that “more than a third of workers recognise that a Nightcation gives their relationship with their partner a much needed boost”.

I leave you to draw your own conclusions as I enjoy another glass of fine St Emilion while writing this newsletter in South West France!

6. finally, (for regular readers) I know that you’d be disappointed if there wasn’t a TUPE item!

In F & G Cleaners Limited v Saddington (the claimant’s name may seem appropriate in a TUPE case for regular readers) the question for the Employment Appeal Tribunal was whether employees who were offered self-employment in the event of a TUPE transfer were unfairly dismissed. The answer might seem obvious for regular readers (and TUPE aficionados) but it is surprising how often this scenario can arise, particularly in the field of contract cleaning.

Unsurprisingly the EAT took the view that there was no failure to mitigate by failing to take the offer of self-employment. However, the interesting twist is that it was also held that there could have been a failure to mitigate if the only disadvantage was the inability to claim unfair dismissal. For those who are interested in this point, I’ll leave you to click the link and read the judgment.

In this case the decision not to accept self employment was not a failure to mitigate and (important in employment law) the potential failure to mitigate did not arise when the offers were made but when the dismissals took effect. I doubt that this was a relevant consideration for the employees at the time. Who was the person who ever said that employment law is straightforward and suitable for a summary tribunal process?!

termination payments: a trap for employers

Posted on July 25, 2011 by Martin Malone

A Ms. O’Farrell worked for Publicis Consultants UK Ltd. Her contract provided for three months’ notice. She was made redundant in May 2009 and was provided with statutory redundancy pay and holiday pay. Her dismissal letter also said that she would receive an ex-gratia payment equivalent to three months’ salary (£20,625) free of Tax and NI deductions. Continue reading →

do you need to pay an employee who is held in custody?

Posted on July 19, 2011 by Martin Malone

The normal rule is that an employee who is ready and willing to work but is unable to do so by reason of sickness, injury or other unavoidable impediment will, if his contract continues and subject to its terms, still be entitled to pay.

In a recent case an employee, perhaps somewhat cheekily, argued that this meant he was entitled to pay for a period when he was prevented from coming to work because he had been remanded in custody Continue reading →

minimum wage update

Posted on July 19, 2011 by Martin Malone

The annual National Minimum Wage (Amendment) Regulations which increase the National Minimum Wage from the 1 October each year have now been laid before Parliament in draft form. Following the recommendations of the Low Pay Commission, they will provide for increases in the National Minimum Wage from 1st October 2011 as follows: Continue reading →

a sign of the times: much news about redundancies

Posted on July 19, 2011 by Martin Malone

Although sometimes used as a euphemism for dismissal, “redundancy” is nothing of the sort. It is a reason for dismissal, which may of course be fair or unfair dismissal. Three recent cases have shown that the Employment Appeal Tribunal will take a practical, pragmatic view of what is fair and unfair. The first two are concerned with selection of employees for redundancy dismissal and the third concerns consultation obligations. Continue reading →

health and safety: the return of “common sense”?

Posted on July 19, 2011 by Martin Malone

On the one hand, the Health and Safety Executive is becoming increasingly sensitive to suggestions that the way in which it enforces health and safety rules is excessively pernickety and can lead to red tape stifling initiative and supplanting common sense. It is currently conducting a high level campaign to bring proportionality into centre stage. Two recent examples are the public spat between the HSE and the tennis authorities and a recent HSE consultation on “proposals for replacement arrangements for adventure activities”. Continue reading →

Twitter, Facebook and the like

Posted on June 23, 2011 by Martin Malone

Cases concerning the when and how of employee use of social networking sites (such as Twitter and Facebook) are now beginning to reach the employment tribunals.

No new legal principles are involved in deciding when and whether it is appropriate for an employer to discipline or even dismiss an employee for inappropriate use of these sites. But because the subject is likely to come up with increasing frequency it may be useful to draw attention to a couple of recent cases.

In the first (local) case an employment tribunal found that dismissal was within the band of reasonable responses open to pub chain Wetherspoons after it dismissed a shift manager at one of its pubs in Cheshire because she had posted insalubrious comments about two customers on Facebook. The customers concerned had abused the manager, a Miss Preece, when she was on duty. The abuse had continued afterwards in that Miss Preece was later subjected to anonymous telephone calls, including one in which she was told "get your f*cking P45 ready because you are out of here…". An important factor which led the tribunal to rule that the dismissal was fair was that Miss Preece had signed up to Wetherspoon’s formal email and social media policy which included an explicit statement to the effect that disciplinary action could be taken if any comments on Twitter, Facebook etc. should "be found to lower the reputation of the organisation, staff or customers" (Preece v JD Wetherspoons plc Liverpool ET on 18 January 2011).

However in another case a few weeks earlier an employment tribunal held that dismissal was not within the band of reasonable responses open to the Halfords chain of stores. Halfords had disciplined and then dismissed a deputy manager who had posted negative comments on Facebook. Mr Stephens had set up a Facebook page: "Halfords workers against working 3 out of 4 weekends". He sued for unfair dismissal, won and was awarded £11,350 compensation (Stephens v Halfords plc Torquay ET on 3 November 2010).

In this type of case, as in any "misconduct" unfair dismissal case, an employment tribunal will look at whether the employer went through appropriate procedures and will consider whether or not dismissal fell within the range of reasonable responses open to an employer in all the circumstances (and will not substitute its own view of what would have been reasonable). As many HR practitioners are aware, in carrying out this exercise an tribunal will apply three main tests, as follows:

At the time when he dismissed him, did the employer believe that the employee had been guilty of the misconduct?
Were there reasonable grounds for the belief?
Did the employer carry out as much investigation into the matter as was reasonable in all the circumstances of the case before dismissing the employee?

Subscribers should note that we have added a draft social media policy to the library of downloadable documents in the protected area of our website.

consultation on tribunal reform

Posted on June 23, 2011 by Martin Malone

In February we reported that at the end of January the Government published a consultation paper designed to "improve the way in which workplace disputes are resolved" (the consultation period ended on 20 April).

Proposals for a more active role for ACAS in trying to settle claims before they get to a tribunal have been generally welcomed but other proposals have been criticised by experts in the field, not least one to the effect that employment judges should be able to sit alone in unfair dismissal cases. Hopefully the government will listen to the views of the experts this time around. They failed to do so in 2004, when the last serious attempt to improve dispute resolution processes was made. The embarrassing result was that the compulsory procedures then introduced were removed in their entirety just five years later.

It may be helpful, given other current consultations and proposals, to point out that the January 2011 consultation was concerned simply with dispute resolution. It had little to do with the substance of employment law. The separate May 2011 consultation on “Modern Workplaces” (noted in our other posts this month) deals with that.

In addition to these consultations the government made a quite heavy duty employment law announcement on 11 May. This was picked up by various newspapers which provided headlines such as "Coalition to water down employees’ rights"” (The Guardian) and "Sackings to be made easier and payouts cut in war on red tape" (Daily Telegraph). The Unite Union came out with a snappily titled press release saying "Plans to make a bonfire of employment protection policies need to be extinguished".

For avoidance of confusion, it is worth pointing out that this announcement had little or nothing to do with the January and May formal consultations. Also, it turned out to be something of a damp squib. The "action" part of it merely promises a review of three parts of employment law later this year – the parts in question being (i) the absence of a cap on the amount which employment tribunals can award in discrimination cases; (ii) the 90 day consultation period where collective redundancies are proposed; and (iii) TUPE. The first of these took a knock just this week when a proposal to cap discrimination payments at £50,000 was lost due to lack of Parliamentary time

Given that much of the relevant British law is required by EU Directives it seems unlikely that any radical changes will be made. However it may be that official protestations last autumn to the effect that there were then no proposals to change the TUPE regulations are being modified in the light of the Government’s subsequent commitment not to "gold-plate" EU Directives. One area of "gold-plating" is the service provision part of TUPE. While TUPE itself is designed to implement an EU Directive, this part (reg 3(1)(b)) is not. It has, for example, the effect of making it practically impossible for a local education authority to save money by outsourcing provision of school meals to a catering company which offers staff less generous pensions than the LEA.

The road to hell is, of course, paved with good intentions. While employment law may itself be confusing, plans to simplify it can all too easily make things even more confusing. An important message for both employers and employees to take from all this is that while the detail of how the rules apply may be complicated in some cases, it is still true that as a a general rule common sense and fairness will usually win the day in employment law matters.