Bad behaviour by lawyers

Last month I reported the very serious consequences of a Christmas party that got well out of hand and resulted in life changing injuries. Subsequently, reports have emerged of serious misbehaviour by lawyers which have had serious consequences, including the likely curtailment of successful careers.

Legal Cheek has reported that, John Burnand (pictured), a partner in city firm Winckworth Sherwood, resigned after acknowledging that his behaviour was “not acceptable”. It is alleged that he drunkenly groped a number of female employees at a Christmas party at the upmarket Skylon restaurant on 8 December. He is reported to have drunk “far too much” and after the groping incidents he was “escorted out” of the building.

Prior to his resignation Mr Burnand had posted what Legal Cheek describes as “a grovelling apology” in which he stated that he had attended “a business development event prior to the party and had drunk more than [he] should on the day”. He continued:
I am very sorry for offending so many by my conduct. I know that this is not acceptable behaviour and must never happen again. You may rest assured that it never will.

…I hope that you will forgive my conduct on the night, on my assurance that there will be no recurrence and I hope that it did not spoil what I believe was otherwise a very good evening.
Within 24 hours he had resigned. With reference to last month’s discussion about vicarious liability (in this context the potential liability of an employer to its employees for the actions of the partner) it will be interesting to see whether any claims for sex discrimination against Mr Burnand and Winckworth Sherwood follow. Perhaps the firm will take the view that settling claims against those subjected to Mr Burnand’s inappropriate behaviour is the preferred course of action. Mr Burnand still appears as a partner at Winckworth Sherwood in the Legal 500.

The incident follows a notice from The Bar Tribunals and Adjudication Service that a Birmingham barrister, John Randall, made sexual advances to an unnamed woman in a bar by repeatedly touching and strolling her thigh without consent. He was fined £2000.

Meanwhile, details have emerged of the conviction of an in-house lawyer with City firm Schroders for racially aggravated and sexual assault. Alastair Main attended a rowing club dinner where he poured beer over a woman’s head and called her “an Australian slut” when she refused to hug him. He then proceeded to follow her into the ladies’ toilets, where he smacked her on her backside five times.

Details

Is same-sex marriage a bar to a clergyman taking an NHS post?

In 2014 the Reverend Canon J C Pemberton married his long term partner, of the same sex, pursuant to the Marriage (Same Sex Couples) Act 2013. Reverend Pemberton had been ordained as a Church of England priest in 1982. In 2007 he resigned his parish and separated from his wife. They were subsequently divorced. He took up an appointment as a Community Chaplain in 2008. In due course he became the Deputy Senior Chaplain and Deputy Bereavement Services Manager for United Lincolnshire Hospitals NHS Trust. He met his now husband in 2008 and by the autumn of 2008 they were living together.

According to NHS practice, Church of England priests are not appointed as chaplains without a licence from the Church, normally in the form of authorisation from the Bishop of the Diocese. In the period from 2008 to 2011 Reverend Pemberton. He was issued with an Extra Parochial Ministry Licence (EPML) by the Suffragan Bishop of Grantham and a Permission to Officiate (PTO) by the Bishop of Southwell and Nottingham.

In July 2013 Reverend Pemberton and his partner became engaged and on 12 April 2014 they were married. the wedding attracted press interest, including from the Mail on Sunday. Coverage from the same paper on 22 June 2014 asserted that “the first clergyman to enter into a gay marriage in defiance of the Church of England [had] been ‘sacked’ by his bishop”. Prior to his marriage the Bishop of Lincoln had written to and met with Reverend Pemberton. In March he wrote to Reverend Pemberton and stated:
… it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage … Like every clergyperson, at your ordination you undertook to ‘accept and minister the discipline of this Church, and respect authority duly exercised within it …
Following the marriage he issued a rebuke to Reverend Pemberton because he had:
… chosen to marry, knowing that for an ordained priest to enter into a same-sex marriage is contrary to the teachings of the Church of England and the clear, recent statement of the House of Bishops…[which was]…inconsistent with your ordination vows and your canonical duty to live in accordance with the teachings of the Church of England.
In May 2014 Reverend Pemberton applied for a salaried post at Sherwood Forest NHS Trust. He was offered the job, subject to the usual requirement to obtain C of E consent. Instead of granting permission, in early June 2014 the Bishop of Southwell and Nottingham revoked his PTO. the job description issued by the NHS Trust included a “requirement to meet the requirements of the Church of England…in the provision of a chaplaincy service throughout the Trust”. It was also a requirement for the post holder to have “authorisation by the relevant faith community”. On 7 July the Bishop refused to grant the required EPML, explaining that:
In its pastoral guidance on same sex marriage, the Church of England House of Bishops reaffirmed that a same-sex marriage is inconsistent with the Church’s teaching on marriage. Entering into such a marriage involves the cleric acting in a way which is inconsistent with both his or her ordination vows and the canonical duty of all clergy to model the Church’s teaching in their lives. As Canon Pemberton recently contracted such a marriage, I revoked his Permission to Officiate in the Diocese of Southwell and Nottingham.
In the light of this, it would be inconsistent if I were to issue a licence to Canon Pemberton at this time.

By letter dated 30 July the Bishop confirmed that, without an EPML, Reverend Pemberton would not be able to officiate as a Priest of the Church within the Trust.
Reverend Pemberton commenced employment tribunal proceedings against the Bishop in September 2014, alleging that there had been unlawful direct discrimination because of sexual orientation and/or marital status and/or unlawful harassment related to sexual orientation.

Details

Publication of employment tribunal decisions

A little publicised but potentially very significant development in the field of employment law in 2017 will be the introduction of the routine publication of employment tribunal judgments. As matters stand, anyone (other than the parties and their representatives) who wants to search for or browse first instance decisions in the Employment Tribunal has to attend in person at the Bury St Edmunds office for English and Welsh decisions or Glasgow for Scottish decisions. Copies of specific decisions can be ordered but at a cost £10 and £5 each for additional decision in the same order. Decisions of the Northern Ireland Industrial Tribunals and Fair Employment Tribunals have been available online for some time.

Last June HM Courts and Tribunals Service announced that new employment tribunal decisions will be publicly available online from autumn 2016, subsequently put back to early 2017.

As many readers will know, employment tribunal decisions are not binding on subsequent tribunals so why is this news potentially very significant? Well, it’s primarily to do with reputation management. Years ago it would be quite usual to see local court reporters attending employment tribunals and their reports on cases would frequently appear on a page in a local paper devoted to employment and other judgments. However, the regional press has suffered huge financial cutbacks in recent years and the days of reporters attending tribunals as a matter of routine have long gone. Generally, cases are not reported unless they come to the attention of journalists as a result of contact from the parties or their representatives. For example, unions often issue press releases about cases they have backed in order to demonstrate successful outcomes for their members. Barristers’ chambers also publish details of successful cases, but these are overwhelmingly appeal hearings which are already available online, for example through the EAT online service and BAILII.

The new online employment tribunals decisions service will be an easy and free resource for accessing newsworthy content without the need to send someone to a tribunal. We can therefore expect to see a notable increase in the number of cases reported. Of course, online publication increases the chance of case reports being picked up by mainstream and national websites, with syndicated content (authorised or not) at the heart of many news websites.

Details

Employer’s liability for assault following a Christmas party?

It is widely reported every year that employment law rights and Christmas parties often collide in a frequently drunken sequence of events that ends up either in an employment tribunal, with a large compensation payment by the employer, or both. This time last year I wrote about a reported decline in “risky” office parties and, a month earlier, about a case resulting from fairly outrageous behaviour by MBNA employees at Chester races.

This year the facts of the case I’m reporting revolve around a Christmas party but stray away from conventional employment law into the area of the potential liability of an employer for the acts of its employees in the context of personal injury.

On 1 December the High Court handed down its judgment in the case of Bellman v Northampton Recruitment Limited, which was heard from 24 to 26 November. It is a sad story about the aftermath of a Christmas party which got thoroughly out of hand and resulted in the Claimant, Mr Bellman, suffering brain injury which was so severe that he has no recollection of the incident and had to appear in court by a litigation friend.

John Major, his wife Beverley and Michael Geoghehan were directors and shareholders in Northampton Recruitment Limited which ran franchised offices of Drivers Direct, a temp agency for HGV drivers. (Following the assault the Company went into liquidation in June 2012 and was dissolved in October 2013.) The Claimant, Mr Bellman, and Mr Major had been friends since childhood and in 2010 Mr Major offered Mr Bellman the post of sales manager which he accepted in November of that year. He was on a daily rate of £80 plus commission. In 2011 the Company’s Christmas party took place at the Collingtree Golf Club on 17 December. 24 people were in attendance. Alcohol was freely available. One witness recalled that he had about 12 pints and a couple of Jack Daniels in the course of the evening. When the party finished about half of those in attendance decided to continue at the nearby Hilton Hotel.

At about 3.00 a.m. and reportedly unprovoked, Mr Major punched Mr Bellman in the face. Mr Bellman got up and Mr Major punched him again. This time Mr Bellman “went straight back like a falling tree” and hit the marble floor. He was bleeding from his nose, ears and mouth. One employee in attendance thought that he was dead. He was taken to local A&E and then moved on to the specialist unit at John Radcliffe Hospital where he was diagnosed with various brain injuries.

Fortunately he survived but subsequently suffered from numerous symptoms including headaches, deficits in verbal reasoning, speech and language impairment. He was diagnosed with “very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences”. He is unlikely to return to any form of paid employment.

Mr Major was arrested and charged with GBH. However, the criminal prosecution did not proceed as a result of a mistake made by the CPS.

In the High Court Judge Cotter QC described it as “…a brutal assault comprising…two phases separated by Mr Major being removed and held back by others, breaking free and returning to strike at a time when Mr Bellman, rather than being aggressive, was pleading with him to see sense.” The claim was reported to be valued at £1 million.

What is intriguing from a legal perspective is that the personal injury claim brought on behalf of Mr Bellman was directed not to Mr Major but to the employer, Northampton Recruitment Limited (and thereby for all practical purposes against the insurer of the insolvent company).

Details

Is a district judge entitled to whistleblower protection as a worker?

The traditional perception of a judicial appointment is that it brings with it generous terms of employment as well as very valuable pension arrangements on retirement.

While that might have been the case for many years, it is most certainly not the current position and senior judges have expressed concern about the impact on morale and recruitment. Judges at all levels are being required to deal with increased workloads, archaic IT and the challenges presented by a large increase in the number of unrepresented parties, as a result of severe restrictions on the availability of Legal Aid. If that were not enough much higher small claims limits, below which most legal costs are not recoverable, have priced many people out of being able to afford professional legal representation so cases are less well prepared and the guiding hand of a professional who might advise terms for settlement is absent.

While recent decisions seem to have applied a wide interpretation to what working terms are sufficient to establish employment rights as a worker (for example see last month’s Uber case), the opposite is the case as far as district judges are concerned. In Gilham v Ministry of Justice the Employment Appeal Tribunal (EAT) was asked to consider whether, in addition to being an office holder, District Judge Gilham was also a worker and therefore entitled to protection from whistleblowing.

I will not repeat what is required in law to be considered as a worker because I dealt with this last month when reporting the Uber case. In the employment tribunal the judge found that:

District judges are appointed by the Queen on the recommendation of the Lord Chancellor, are paid a salary as determined by the Lord Chancellor (which may be increased but not reduced) and are assigned to areas (circuits) by the Lord Chief Justice.
District judges hold office to the age of 70. They can only be removed for misbehaviour or inability to perform their duties (the latter only with the concurrence of the Lord Chief Justice).
Their judicial role, functions and authority are prescribed by statute and rules of procedure made under statutory authority.
Their terms of service are set out in memoranda issued by the Lord Chief Justice from time to time.
The memoranda cover such matters as allocation of work, deployment, wellbeing and training ad general advice and direction.

The Lord Chief Justice therefore has responsibility for and control over the activities of district judges.

Ms Gilham was appointed as a salaried district judge in January 2006. She was assigned to the Crewe County Court and subsequently sat at Warrington County Court. The offer of appointment letter referred to “terms of service” but there was nothing to indicate the creation of a contract or which referred to employment.

Details

Is it discriminatory to exclude over 35s from police recruitment?

In the UK applicants for police recruitment have to be at least 18 years old. There is no upper age limit but the normal retirement age is 60. Eligibility requirements also cover such matters as nationality, criminal record, tattoos, financial status, physical fitness, health and eyesight.

In Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias the European Court of Justice (CJEU) was asked to consider whether an age limit of 35 for a competition for recruitment to the Basque Police was discriminatory on the ground of age. Mr Sorondo brought proceedings in the Spanish High Court concerning the decision of the Director-General of the Basque Police and Emergency Services Academy, objecting to the conditions for participation in the competition and, in particular, the requirement of candidates to be under 35 years old. He was over 35 and claimed that there was no justification for the age limit imposed.

Local legislation provided as follows:
A candidate for recruitment as a police officer must be aged 18 or over and under 35. However, with respect to recruitment to local forces, the upper age limit may be revised taking into account services provided within the local administration, in the local police forces.
The High Court referred the question to the CJEU, noting as it did so that there was a previous ruling that an upper age of 32 years for the recruitment of Basque police officers complied with the requirements of proportionality and that a similar decision permitted a limit of 30 years for intermediate career posts in a fire service.

Details

Taking into account prior warnings when dismissing

The Employment Appeal Tribunal (EAT) decision in Bandara v British Broadcasting Corporation provides a reminder of the need to be careful when considering prior warnings in the context of deciding to dismiss someone.

Mr Bandara worked as a senior producer for the BBC, having commenced employment as a producer in July 1995. He worked within the Sinhala Service. His employment record in the period to 2013 was unremarkable. In March 2013 he was asked to book his team on a training course. He argued that this was the responsibility of another employee and he shouted at that employee. The other employee reported the matter to HR but there is no record of any action having been taken.

Mr Bandara was working on 23 July 2013, the day after Prince George was born. He decided not to prioritise the story because it coincided with the 30th anniversary of Black July, a sombre date in Sri Lankan history. The Service opened accordingly at 10.00 a.m. However, another employee disagreed with Mr Bandara’s approach and at 12.08 p.m. the news about Prince George’s birth was broadcast.

In August 2013 Mr Bandara was made the subject of disciplinary proceedings in respect of both incidents. By letter dated 19 November he was notified of the employer’s decision by investigator, Ms Iootty:
After carefully considering the allegations and your response to them, I have concluded that I believe that the allegations are true. This is an extremely serious matter as your behaviour in relation to both the incidents potentially constitutes gross misconduct. However I have taken into account that your behaviour has never been formally addressed before while you have been working at the BBC.
He was issued with a final written warning.

Further disciplinary proceedings followed in 2014 and resulted in Mr Bandara’s summary dismissal. Charges included: applying pressure on an employee to require another employee to leave a meeting; applying pressure on an employee to drop disciplinary proceedings; behaving in a bullying and intimidating manner; being involved in creating an perpetuating a culture of fear within the Sinhala Service; describing another employee in a discriminatory way by calling him a “sudda”; refusing to obey an instruction and shouting angrily to colleagues on two occasions.

The matter proceeded to an employment tribunal and in July 2015 it was found that the final written warning that had been issued was manifestly inappropriate. However, the tribunal concluded that the decision to dismiss was nonetheless fair. Mr Bandara appealed and the BBC cross-appealed on the finding that the final warning was “manifestly inappropriate”.

Details

Uber and the “gig economy”

I have been writing about employment status since this blog started a number of years ago. One of the most widely reported cases dealing with the issue was published last week in Aslam, Farrar and others v Uber B.V., Uber London Limited and Uber Britannnia Limited. As most readers will know, Uber is a controversial transportation system which provides app based bookings for private hire taxi journeys. It operates in 66 countries and 507 cities. There are some 30,000 Uber drivers operating in the London area. Uber B.V. owns the smartphone app. Uber London Limited is a licensed private hire operator and Uber Britannia holds licenses for district councils outside London.

At a case management hearing in 2015 two “test claimants” were selected for a preliminary hearing to determine the question of their status in the context of employment law protection (the action was backed by the GMB union). They claimed that, as workers, they should receive the minimum wage and be entitled to paid holidays as well as protection from whistle-blowing. Uber contended that they were independent contractors and not workers, and therefore not entitled to the rights claimed. The preliminary hearing took place over five days between 19 July and 12 October 2016, with the decision published on 28 October. The tribunal summarised how the Uber system operates. Passengers register their information on the app, including credit or debit card details. Once registered they can request journeys by using the app. They do not have to state their destination but, if they do, they may choose to receive a fare estimate. Uber then locates the nearest available driver and notifies him of the passenger’s first name and rating (drivers and passengers can be rated on the app). He then has 10 seconds to accept the trip or it is offered to the next best matched driver. If accepted the driver is put in phone contact with the passenger to agree the pick-up location and advise about any delays but he is strongly discouraged from asking about the destination until he has picked up the passenger. Once the passenger is picked up the app specifies the route to the destination and this must be followed unless the passenger indicates otherwise. Once the journey is complete the driver confirms accordingly on the app and is then placed back in the pool of available drivers. The passenger pays via the app and the Uber software then generates what appears to be an invoice from the driver to the passenger. The driver is paid weekly based on the fares earned, less a service fee which is usually 25%.

Details

How (not) to communicate a dismissal

Can a dismissal be implied by the failure of an agency employer to find work for an employee? This was a question considered by the Employment Appeal Tribunal (EAT) in the recent case of Sandle v Adecco. The EAT concluded that in order to prove there had been a dismissal, an employer’s unequivocal intention to dismiss must have been communicated to the employee in question.

By way of background Miss Sandle, the Claimant, was an agency worker employed by Adecco. When the Claimant’s assignment working at another company terminated, Adecco failed to take any action to find her further work and, given the Claimant’s failure to contact them, ‘assumed’ that she was not interested in further agency work. Clearly this was not the Claimant’s view and she subsequently brought a claim of unfair dismissal against Adecco.

The EAT held that in the absence of either a resignation from the employee or communication of dismissal from the employer, there could be no dismissal and nor could one be implied by either party’s inaction.  It was therefore concluded that the Claimant remained employed at the time her unfair dismissal claim was lodged and thus, as she could not evidence the fact that she had been dismissed, her claim failed.

Details

Comparators in Equal Pay claims

In the recent case of Brierly and ors v Asda Stores Ltd, a Tribunal has ruled that Asda store workers are able to compare themselves to distribution depot workers for equal pay purposes.

The facts of this case are that a group of (mainly female) Asda employees who were employed on an ‘hourly rate’ basis, argued that they were entitled to the same rate of pay as the distribution depot employees (the majority of whom were male). They claimed that their duties had historically been thought of as ‘women’s work’ and therefore worth less than the duties carried out by the employees working in the depot.

At the preliminary hearing, the Tribunal was tasked with deciding whether the store workers were able to rely upon this comparison. Section 79 of the Equality Act 2010 states that an equal pay comparison is only valid if the claimant and comparator are both employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments but ‘common terms apply at the establishments’.

The Manchester Employment Tribunal firstly considered whether the above comparison would be allowed under EU law. It stated that although it is not enough that the Claimant and proposed comparator are employed by a single employer (there must also be a single ‘source’ i.e. a body responsible for this inequality but that could restore equal treatment), in this particular matter the single ‘source’ test had been satisfied, thus rejecting Asda’s argument that the division of the Company structure into Retail and Distribution sectors meant that pay-setting authority had been delegated to separate bodies.

Details