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.

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)?

Indirect religious discrimination

Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?


This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903.  The facts of this case were that the Claimant’s (Mrs Pendleton’s) husband was the headteacher of a local school.  The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).


In January 2013 the Claimant’s husband was arrested on suspicion of downloading indecent images of children and voyeurism.  He was later convicted of these offences and sentenced to ten months’ imprisonment.


The Claimant initially left her husband and went to stay with her parents, taking leave from work – at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned.  Although there was no evidence that the Claimant had any knowledge or involvement in her husband’s actions, the headteacher had also stated that the school couldn’t support her if she stayed with her husband.


During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.


The school subsequently dismissed the Claimant summarily, stating that she had “… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School”.


The Claimant’s appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.


The Employment Tribunal agreed with the Claimant’s submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) – she had not committed an act of misconduct let alone gross misconduct – but rather the Respondent’s view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender.  The Claimant’s claim of wrongful dismissal also succeeded in light of the above.


With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: “her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”.  The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant’s religious belief.  The tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.


The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.

An employee’s right to privacy – are your emails protected?

One of the most common issues encountered by employers today is whether emails sent by employees are able to be used in disciplinary proceedings against them.  Are they the private property of the employee or can an employer use them as evidence if they have an effect on their employees/the workplace?

In the case of Garamukanwa v Solent NHS Trust, an employer was recently held not to have breached an employee’s right to a private and family life (Article 8 of the European Convention on Human Rights) when they reviewed private information that belonged to the employee on the basis that the information related to work and therefore had a potential impact on the employer.

The Claimant (Mr Garamukanwa) worked as a Clinical Manager for the Respondent (Solent NHS Trust), and had formed a personal relationship with a fellow colleague, Ms Maclean.

Following the breakdown of this relationship, the Claimant then believed that Ms Maclean had started a relationship with another colleague, Ms Smith. Ms Maclean and Ms Smith subsequently received an email from the Claimant in which he advised them that unless they told their manager about their relationship, he would do it himself.

Prior to this an anonymous letter had in fact already been sent to the aforementioned manager (Mr Brown), accusing Ms Maclean and Ms Smith of ‘inappropriate sexual behaviour’ in the workplace.  Mr Brown subsequently raised these concerns with Ms Maclean and Ms Smith, who denied both having a relationship and inappropriate sexual behaviour.  Ms Maclean later advised Mr Brown about the email that herself and Ms Smith had previously received from the Claimant and stated that she felt threatened as a result of this.

Mr Brown therefore informally raised these concerns with the Claimant, who apologised for sending the email but denied being the person who had sent the letter to him.  Ms Maclean and Ms Smith were then the subject of a vendetta which consisted of the sending of malicious emails and photos to management and other members of staff, from various anonymous email addresses.  In addition a fake Facebook profile was set up and around 150 of the Respondent’s employees were added to it.  It later became clear that whoever was responsible for the vendetta was following Ms Maclean and Ms Smith, and Ms Maclean believed that the Claimant was in fact stalking her. 

Initial reaction to the introduction of the national living wage

Further to my previous blog post about the introduction of the national living wage (NLW), I was interested to read that not all of us think the effective increase to the national minimum wage will have a positive impact on the UK or its employees.

You will by now probably be aware that larger businesses such as Kingfisher (owners of the likes of B&Q and Screwfix) immediately put provisions in place to ensure that the introduction of the NLW had a minimal impact on their finances. Kingfisher, for example, advised all employees that although they will increase the hourly rate of pay to £7.66 across the board (regardless of age), they will remove benefits such as time and a half/double time for working on Sundays/bank holidays and the increased pay previously received by staff working in London. In addition they have cut summer and winter bonuses and advised employees that should they not agree to these changes and sign a new contract of employment, “unfortunately this will result in your dismissal”.

Workers have understandably reacted angrily to the changes and created a storm on social media by setting up a Facebook campaign and petition entitled “Don’t use living wage as an excuse to cut pay and benefits”.  Rumour has it that the campaign was set up by a B&Q Manager under the pseudonym of Kevin Smith, who wrote:

Those who have worked within the business for over a decade and know our customers and our business the best are losing thousands of pounds a year. Big businesses like B&Q are using the national living wage as an excuse to cut overall pay and rewards for the people that need it the most.

I hope that with the support of others, through signing this petition, we can influence B&Q and other businesses to reverse these changes. I also hope they acknowledge that treating people in this way will have a negative impact on their business in the future.

Currently (as of 5th April 2016) the petition has 134,074 supporters.

consensual termination of employment cannot be assumed

Francis v Pertemps Recruitment Partnership Ltd concerns the dividing line between dismissal and termination of a contract by mutual consent. Mr Francis was a temp in the fortunate position of having a contract of employment with an agency – who supplied him to Transco to do administrative work. When the successors to Transco’s business, SGN, no longer required his service, he was given the choice of taking a redundancy payment or hanging on while the agency looked around for new work for him.
On his return to Pertemps on 12 December 2006 (yes 2006 – it has taken that long to resolve!) he had the options outlined to him (in rather inelegant terms):
Depending on how you feel yourself, whether you are happy for Pertemps to keep on looking for another assignment for you elsewhere, and we do have other bits and pieces in at the moment or things coming up in the New Year, that we’ll be happy obviously to speak to you about or…there might be an entitlement for you to a redundancy payment from Pertemps because of the work you have previously…for the last two and a half years…has come to an end.
He was also told that in either case he would receive a payment of two weeks’ pay, described as “notice pay”.
To start with he opted for staying on, but then he concluded the chances of something turning up were slim, and as he would not be able to claim jobseekers’ allowance if he remained with the agency, he changed his mind. He also lacked faith that he would be engaged through Pertemps to work in a possible opening at the Scottish Parliament. He was then given a letter which looked suspiciously like notice of termination:
Following your meeting of 12th December 2006 it is with regret that I confirm the position of Process Assistant will become redundant with effect from 12th December 2006…Please treat this letter as formal notice of redundancy…In accordance with your contract of employment you are entitled to two weeks notice, therefore your last date of employment will be recorded as 26th December 2006.
The letter was written by an HR advisor and is, on any reading, a pretty poor effort. Mr Francis exercised his right of appeal and in February 2007 his redundancy was confirmed.

insufficient investigation made dismissal unfair

Employers should take care to investigate allegations of dishonesty involving breach of trust particularly carefully, suggests the Employment Appeal Tribunal in Stuart v London City Airport.
Mr Stuart was one of 430 ground services employees at London City Airport who was dismissed for gross misconduct. It was alleged that he had gone to a duty free shop in the airport and taken goods without paying for them. His version of events was that a friend had beckoned him over for a chat while he was in the queue to pay for items, and he had not been aware of crossing the threshold of the shop, whereas one witness suggested that he had in fact tried to conceal the goods in his jacket. That witness was not present at any disciplinary hearing or appeal hearing, so her evidence could not be challenged, and the employer did not obtain evidence from other sources suggested by the other employee such as available CCTV, or likely witnesses including the friend or shop assistant manning the till, which could have confirmed or disproved the truth of the allegation of an attempt to hide items.
Since the conduct and scope of disciplinary proceedings is a common concern for many employers, it is worth spending a little time in considering the views of the EAT about what did happen and, more significantly, what should have happened. The facts are outlined in the decision as follows:
On the evening of 21 December 2009 the the Claimant entered Nuance, the duty free shop, to buy some Christmas presents. He chose some items which he stated that he held at all times in his hands; he accepted that he did not use a basket. He first went to pay for them at an un-manned till point, where he queued with another customer before a member of staff told him to go and pay at another till point because that one was closed. He moved over to a different till and began to queue again. During the whole of this period he stated that the items he had chosen were clearly visible in his hands.
What then happened was that he was beckoned over to a seating area immediately outside the shop by another Nuance staff member called Lynette, where she had a conversation with him about the snowy conditions at the airport that day. The Claimant then realised that he was due back from his break shortly and he moved to a refrigerated counter nearby to buy a drink. He still held in his hands the items for which he intended to pay. However, while he was selecting a drink, a police officer came to speak to him, on the basis that he was suspected of dishonestly removing goods from Nuance without paying for them.
The Respondents were informed and the Claimant was suspended on full pay, with effect from 21 December, pending an investigation into alleged gross misconduct involving breach of trust.
The matter was then investigated by the Respondents, as his employers. Statements were taken from Mr Gilani, the Nuance store manager, and from a Nuance staff member, Ms Adenike Adenekan. Strangely, in view of the significance of her evidence, which was very much in dispute, Ms Adenekan did not give evidence, either at the disciplinary hearing or before the Tribunal. Mr Gilani did, on both occasions, and the Tribunal also had his statement which had been made at the time. Mr Gilani’s evidence was that Ms Adenekan had reported concerns that an airport employee inside the shop, later accepted to be the Claimant, was secreting items from the purchasing section under his jacket. The Claimant vigorously denied that. As a result of Ms Adenekan’s report Mr Gilani went on to the shop floor, where he stayed for between 10 and 15 minutes. During that time he saw that there were no other customers in the shop and no queues. He stated that baskets were available for customers but that the Claimant was not carrying a basket.

can an employment contract be ended without notice?

It may seem a straightforward question since people are dismissed every working day for what is commonly referred to as “gross misconduct”, i.e. conduct which is so serious that it goes to the root of the contract and renders its continuation undesirable if not impossible.

However, what of the “innocent” employee? In my discussion about decision of the Court of Appeal in Société Générale London Branch v Geys in April 2011 I pointed out that, according to the Court of Appeal, Mr Geys’ employment was terminated on 18 December 2007 when Société Générale made a payment in lieu of notice to him, rather than 4 January 2008 when Société Générale confirmed in writing its intention to do so. The date was very important for Mr Geys because, relying on the earlier date, Société Générale did not have to pay significant bonuses which would have accrued prior to the later termination date.

I commented:

News of the World: stigma damages and TUPE protection?

An interesting discussion has emerged on the web about employment issues arising from the sudden closure by News International of the News of the World.

It is a central tenet of employment law that contract terms can be both express (i.e. written in to a contract) and implied. Some key duties, such as a duty of faithful service, are implied into all contracts of employment, whether or not a written contact exists.

termination payments: a trap for employers

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.