Is an accusation being “too left-wing” harassment related to belief?

In Henderson v GMB the Employment Appeal Tribunal was asked to consider a claim alleging direct discrimination and harassment relating to Mr Henderson’s “left-wing democratic socialist beliefs”.

An employment tribunal had found that Mr Henderson had been fairly dismissed but had suffered unlawful direct discrimination and harassment on the basis of the protected characteristic of his “left-wing democratic socialist beliefs” which were held to be protected beliefs. There had been incidents of unwanted conduct by the GMB relating to his beliefs that had the purpose of creating an intimidating, hostile or humiliating environment for him.

Mr Henderson worked as a Regional Organiser for the GMB in North London. his job included undertaking political work as part of the region’s political efforts on behalf of the Labour Party. The tribunal found that left-wing democratic socialism included:
(i) a belief in establishing “socialism through democratic processes and [propagating] its ideals within the context of a democratic political system through a working-class industrial and political movement”;

(ii) a belief in ‘workers’ control, that is a term meaning  “participation in the management of factories and other commercial enterprises by the people who work there.  Crossing workers’ picket lines contradicts this aim because it undermines workers’ ability to control their workplaces.
Mr Henderson was regarded as an extremely effective and committed employee. the first incident occurred when he was asked to organise a picket line at the House of Commons in November 2011. He did so and publicised it to the media stating that Labour MPs should not cross the picket line. The story was picked up by Sky News and other press outlets.

The matter was raised in PMQs on 30 November 2011 and Ed Miliband was given a hard time about it. Someone at Mr Miliband’s office complained about the promotion of the picket line by Mr Henderson as a result of which the GMB general Secretary Paul Kenny called Mr Henderson and shouted at him, saying that his actions were “over the top” and “too left wing”. Mr Henderson maintained that following this incident  he experienced difficulties with his managers. He maintained that he was given onerous duties in an attempt to make him resign. In April 2012 he became ill with stress.

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holiday pay and commission

Last May I reported the decision of the European Court in Lock v British Gas. It has taken until now for the resulting decision of the employment tribunal in Leicester to be issued.

The judgment itself is unremarkable but its impact is significant since this is the case in which it has been held that holiday pay should include provision for commission that would have been earned had the employee not been on holiday.

Mr Lock was employed from February 2010 by British Gas. His basic pay was £14,670. In addition he was contractually entitled to the benefits of a commission scheme. While on holiday he received only his basic pay. Sales were achieved in the categories of cold calls, hot leads and upgrades. In practice his commission payments greatly exceeded his basic pay. Commissions were based on the sales achieved rather than the amount of work done. He was entitled to 25 days’ holiday per annum plus public and bank holidays, during which time he could not earn commission.

The analysis of the relevant law in the judgment is comprehensive but what matters is how it works in practice following the European Court judgment. The way in which it has been achieved is by adding a new sub-paragraph (e) to Regulation 16(3) of the Working Time Regulations.

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restricted reporting orders

Employers with experience of dealing with employment tribunals know that disaffected current and former employees can often view them as a way of causing embarrassment to the employer. Frequently, claim forms include details which are quite irrelevant to the claims made. On the other hand employment tribunals can provide a forum for claimants, particularly those making claims related to whistleblowing, to expose serious wrongdoing by employers, regardless of the potential to cause embarrassment. There is therefore a balance to be struck.

As with other proceedings employment tribunals have the right to make restricted reporting orders in appropriate cases. The scope of such an order was recently considered in the  Employment Appeal Tribunal in the appropriately anonymised matter of EF & NP v AB, CD and others. Claims in the employment tribunal alleging constructive unfair dismissal.sexual harassment, sex discrimination, victimisation and unlawful deductions from pay had been dismissed in June 2013. The claims had included lurid allegations of sexual harassment and abuse by EF in some of which his wife, NP, was alleged to have been involved.

AB had threatened to publish the allegations as well as disclosing text messages and photographs regarding sexual activities alleged to have involved EF and NP. EF obtained an injunction restraining publication in proceedings in the High Court which also made a full reporting restrictions order save that AB was entitled to commence employment tribunal proceedings.

The employment tribunal proceedings were commenced on 3 May 2012 and a temporary reporting restrictions order was made on 16 May. The order was converted into a full order on 13 August. It was noted that the proceedings involved allegations of the commission of sexual offences. Notwithstanding the reporting restrictions when the hearing took place there was press coverage from which it was possible to identify EF.

When the judgment was issued it emerged that AB was the managing director of CD and EF was the group CEO (what a lot of initials!). AB had alleged that EF had encouraged him to attend sex parties where he had been abused by EF and NP for almost 13 years. The tribunal found that the sex parties did take place between 2001 and 2009 but they petered out long before AB resigned in February 2012. The tribunal rejected AB’s claim that EF engaged in unwanted sexual activity with him at a party in 2001. Overall many parts of AB’s evidence were found to be unreliable and untrue in material respects.

In February 2012, following whistleblowing allegations about AB made by an anonymous employee EF said that AB wanted £10 million to leave and sign a three years’ non-compete clause, for the company to write off his debt  and for his daughters (also employees) to be paid £100,000 each to leave. AB said that if the deal was not done he would “see the Respondents [including EF] in court and take others down with him”. Two days later AB threatened to publish allegations to the public and shareholders including “abuse of powers of a sexual nature by CEO [EF]”.

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is type 2 diabetes a disability?

Some 3.1 million people in the UK currently have Type 2 diabetes and the number is expected to increase to 4 million by 2025. Of course it is unlikely that there has been an exponential increase in the number of diabetics in the last few years and it is far more likely that there is an increased willingness to make a diagnosis of Type 2 diabetes. Type 2 diabetes was not identified until the 1930s and not treated until the 1950s. Currently it is estimated to affect 6% of the world’s population.

As such it has the capacity to be a disability suffered by a significant proportion of the workforce. But is it?

In Metroline Travel Limited -v- Stoute His Honour Judge Daniel Serota QC, sitting in the Employment Appeal Tribunal, decided to address the issue. At a preliminary hearing in the Watford Employment Tribunal Judge Smail decided that Mr Stoute, who suffers from Type 2 diabetes, was disabled within the meaning of the Equality Act 2010. Mr Stoute was employed as a bus driver from 1992 to March 2013 when he was dismissed for gross misconduct. His substantive claim was rejected but, at a hearing in September 2014, Mr Recorder Luba QC suggested that there was a real chance of showing that anyone with Type 2 diabetes “had in consequence of that fact alone met the statutory definition of disability in the Equality Act 2010”. It was this aspect that Judge Serota went on to consider.

The Judge noted that there were times when Mr Stoute was not taking medication to reduce blood sugar levels, relying instead on a diabetic diet by avoiding, for example, sugary drinks. The Judge noted that a diabetic diet was also likely to include avoiding foods with a significant  sugar content such as sweets, chocolates a fruit juices.

Judge Serota made clear his scepticism about whether managing one’s diet could be regarded as a course of medical treatment:

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is rewarding good attendance discriminatory?

In Land Registry -v- Houghton and others the question for the Employment Appeal Tribunal was whether a scheme designed to reward good attendance was discriminatory in respect of disabled employees.

The Land Registry operated a discretionary bonus scheme which commenced in 2012. All eligible employees were entitled to £900. However, any employee who received a formal warning in respect of sickness absence during the relevant financial year was not entitled to receive the payment.

Ms Houghton and four colleagues were all disabled pursuant to the criteria set out in the Equality Act 2010. They all had sickness absences but these were attributable to their disabilities. There was no doubt that the Land Registry had made reasonable adjustments to accommodate the employees’ disabilities. Nonetheless they were all issued with formal warnings relating to sickness. Accordingly they were all ineligible for the bonus payments. There was no discretion. Managers could determine that conduct matters would not affect entitlement to the bonus; not so for sickness absence which automatically triggered rejection.

At the employment tribunal the suggestion by the Land Registry that the link between disability and and non-payment of the bonus was too remote was rejected. On the contrary “non-payment of bonus was the consequence, result, effect or outcome of each Claimant’s disability”.

Justification is a possible defence to a claim of discrimination. There was a legitimate aim: encouraging and rewarding good performance and attendance. However the scheme was not a proportionate means of achieving the aim. The Claimants were awarded compensation for injury to feelings and the equivalent of pro-rated bonus payments.

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what is an “organised grouping of employees” for the purposes of TUPE?

We TUPE aficianodas have a fond recollection of Mrs Schmidt, a cleaner in a German bank who, in 1994, was found to be a “stable economic entity capable of preserving its (her) identity” following a TUPE transfer (Christel Schmidt v Spar- und Leihkasse der früheren Ämter Bordesholm, Kiel und Cronshagen (Case C-392/92, (1994)).

Fast forward to 2015 and the matter of a single worker has again been considered, this time in the Court of Appeal case of Rynda (UK) Limited v Ailien Rhijnsburger, handed down on 13 February. Rynda owns a large portfolio of properties across Europe. Drivers Jonas LLP acted as agent to manage the properties. In May 2009 Ms Rhijnsburger was engaged by Drivers Jonas on a six months’ fixed term contract to manage the properties in the Netherlands. In October 2009 her role expanded to become an Associate, Asset and Property Management, Europe Group.

In April 2010 Drivers Jonas LLP merged with Deloitte LLP to become Drivers Jonas Deloitte LLP (DJD). In autumn 2010 DJD decided to pull out of managing properties and notified Rynda Group accordingly. Rynda decided to pass the property management duties to Rynda Real Estate Management Limited (REM) which subsequently became Rynda (UK) Limited. Another straightforward, easy to follow TUPE case!

At the end of 2010 Ms Rhijnsburger moved from DJD to REM and took up the post of Senior Asset Manager on 1 January 2011. In effect she did exactly the same job as before. In September 2011 she was dismissed and brought an employment tribunal claim for unfair dismissal. One of the questions for the tribunal was whether her employment commenced on 1 January 2011 or whether she could carry forward her prior employment with DJD for the purpose of calculating continuity, in which case her employment commenced in May 2009. The tribunal held that there was a relevant transfer, as did the Employment Appeal Tribunal.

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dismissal following excessive mileage claims – how much investigation is required?

Rajendra Shrestha worked for Genesis Housing Association Limited as a floating support worker. His job required him to visit clients at their home addresses. In order to reclaim his expenses he was required to complete an online claim form, providing the reading from his car’s odometer (rounded up to the next mile) at the start and end of each qualifying journey.

An audit covering three months in 2011 led to a disciplinary procedure. Mr Shrestha was founded to have fraudulently exaggerated his claims and he was dismissed for gross misconduct. Claims for unfair and wrongful dismissal were dismissed by an employment tribunal in April 2013. An appeal to the Employment Appeal Tribunal was dismissed without a hearing in October 2013 and, undeterred, Mr Shrestha appealed to the Court of Appeal. The appeal hearing took place on 5 February.

In its judgment the Court of Appeal found that in 2011 Mr Shrestha sought payment of an essential car user allowance worth £1000 per year. The allowance was available to those employees who routinely exceeded qualifying mileage of 2500 per financial year. The request raised suspicion because Mr Shestha’s mileage had not previously reached the limit. The resulting audit compared mileages claimed with those shown by AA route finder for the same journeys. The mileages claimed were consistently much higher than the AA figures. As an example the claim for July 2011 was 197 miles whereas the route finder equivalent was 99 miles. Mr Shrestha attributed the discrepancy to difficulty in parking, one way road systems and road works causing closures or diversions.

At his disciplinary hearing Mr Shrestha pointed out that there are differences between AA and RAC figures for the same journey. However both were lower than the amount claimed. It was acknowledged that the employer considered a range of sample journeys rather than each and every one claimed.

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what is to be done about e-cigarettes in the workplace?

How should employers approach the potentially thorny question of whether or not to permit the use of e-cigarettes in and around the workplace? As a smoker, I have an easy way of dealing with the issue of smoking at work which is to leave my cigarettes at home.

Quite apart from the smoking ban in enclosed spaces, it is easy to understand why smoking cannot be tolerated in the workplace, what with the risks relating to passive smoking, generally noxious fumes, presenting a poor image and the notorious problems associated with “fag breaks”.

Can the same objections be raised concerning e-cigs? Although the World Health Organisation recommends a ban on their use indoors, there is no clear evidence of any passive smoking risk and it could be argued that preventing their use is preventing the employee from pursuing a course of treatment aimed at stopping smoking. What about the use of nicotine pads?

Insley v Accent Catering ET/3200687/2014 is the first known employment tribunal case dealing with the topic.

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actions from years ago can return to haunt employees

Evan Glyn Williams was employed by Ken Bates as a technical director with Leeds United FC from 2006. He was on a salary of £200,000 per year, terminable on 12 months’ notice. On 23 July 2013 he was given 12 months’ notice of termination, pursuant to the contract. This arose as part of a redundancy exercise. However, it subsequently came to light that, in March 2008, Mr Williams had used the Club’s email system to send an email with pornographic images attached to a male friend at another football club, Mr Dennis Wise. Photographs included “the fans”, “pictures from the club house, the shower” and included numerous images of female genitalia. As a result, on 30 July 2013, he was dismissed for gross misconduct, without further payments.

Following the summary dismissal it came to light that Mr Williams had sent the same email to a junior female employee at the Club and another male friend at another club, Mr Gus Poyet. In resisting Mr Williams’ claim the Club sought to rely on this additional information that had come to light following the dismissal.

Mr Williams contended that the conduct, while inappropriate, was not sufficient to justify summary dismissal and claimed the balance of his unpaid salary and other benefits.

The case was heard by Mr Justice Lewis, sitting in the High Court, on 9 to 11 February.

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zero hours at all time high and more trouble for Sports Direct

Zero hours contracts have been one of the main topics concerning employment lawyers in the last 18 months. I began writing about them in August 2013 when the Government estimated that some 250,000 people were working under such contracts.

However, the number of employees subject to such contracts has soared since then. The latest ONS Labour Force Survey (published on 15 February) has revealed that 697,000 were employed on a zero hours contract as their main source of employment in the three months to December 2014. Remarkably, this represents an increase of 100,000 in just that three months’ period.

Some commentators have suggested that zero hours contracts have been a symptom of the recession. However, their increased adoption during what we are told is a period of economic recovery strongly suggests that they are here to stay.

As I have commented before there is no legal definition of a “zero hours contract”. Rather, these working arrangements have emerged by custom and practice and there can therefore be unintended consequences.

Attention in this area has focused on Mike Ashley’s Sports Direct  although other high profile zero hours employers include McDonalds, J D Wetherspoon, Burger King and Dominos Pizzas. However it is Sports Direct that has made the news once again this month.

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