Regular voluntary overtime should be included in holiday pay

The Court of Appeal has this week ruled that employers must consider any ‘regular’ voluntary overtime when calculating holiday pay, in addition to ‘non-guaranteed’ overtime, upholding the earlier decision of the Employment Appeal Tribunal (EAT).

In Flowers and others v East of England Ambulance Service NHS Trust (2017) the Claimants, all employed by the East of England Ambulance Service NHS Trust (in a variety of roles) initially brought their claim to the Bury St Edmunds Employment Tribunal alleging that unlawful deductions had been made from their holiday pay.

They stated that the calculation of their holiday pay should account for overtime in two categories – non-guaranteed overtime, and voluntary overtime. The difference between the two in this case is that non-guaranteed overtime occurs when the employee is carrying out a task which must be completed after the end of the shift (for example dealing with an emergency services call for an ambulance), whereas voluntary overtime would be classed as additional shifts which the Claimant can choose to volunteer for (there was no requirement or expectation for them to do so however).

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Japan’s Labour Minister backs Mandatory Heels

Japan’s Health and Labour Minister Takumi Nemoto has caused a stir this week after publicly defending workplace policies that require women to wear high heels to work. The Minister’s comments argued that such requirements were socially accepted as being both ‘necessary and appropriate’ and were made after a petition was filed against the practice.

The petition, submitted to the labour ministry on Tuesday, raises health and safety concerns regarding the requirement, labelling it sexist and outdated. The minister unfortunately did not sympathise with the plight – equating high heels with a level of femininity which is considered to be a social norm within Japanese culture.

Dubbed the ‘#kutoo’ movement, (stemming from a combination of the Japanese word for shoes ‘kutsu’, ‘kutsuu’ meaning pain, and also a nod to the popularised global ‘#metoo’ movement against sexual abuse), the petition continues to gain traction on the online platform Change.org which at the time of writing had received nearly 30,0000 signatures.

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Russian firm’s “femininity marathon” shouldn’t pass the mile mark

Another week, another *ahem* ‘naïve’ company running an event that actively stereotypes women…  Whilst it can seem that regular stories about women being stereotyped in the workplace are almost the status quo, it is worth noting that the fact they are viewed as newsworthy (when, arguably, twenty years ago they wouldn’t be) is a positive in today’s modern society in terms of helping prevent future discrimination.

So, what’s happened this time? Well, a Russian company recently announced the
holding of a “femininity marathon” during this month.  So far, so naive…

However, initiatives within the so-called femininity marathon include:

  • Cash bonuses for wearing a dress or skirt “no
    longer than 5 centimetres from the knee” upon them sending a picture of them wearing
    the relevant clothing to the company; and
  • A competition to see who is quickest at making
    dumplings!
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Nurse dismissed for ‘preaching’ to patients loses second appeal

A nurse in Kent has lost a second appeal against
an Employment Tribunal decision that found she was fairly dismissed for ‘preaching’ to patients.

The Court of Appeal case, Kuteh v Dartford and Gravesham NHS Trust, considered the balance between the importance of the right to freedom of religion and the individual’s right to be protected from inappropriate or improper promotion of beliefs. In this case the complainants were hospital patients attended to by Ms Kuteh in the Intensive Treatment Unit of Darent Valley Hospital in Dartford. Ms Kuteh had 15 years’ nursing experience and prior to her dismissal she was employed in a pre-operative assessment role. Understandably, the nature of her role meant that the patients she attended were at a particularly vulnerable moment in their lives.

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Paramedic who fell out of back of ambulance unfairly dismissed and discriminated against.

Dealing with sickness absence is a persistent problem for many employers, particularly when dealing with the apparent dichotomy between potentially fair dismissal on the ground of extended sickness absence and discrimination based on disability. The issue reared its head once again in the recent case of Muller v London Ambulance Service NHS Trust.

Mr Muller, a paramedic, injured himself when falling out the back of an ambulance while on duty in March 2016. He never returned to work and was dismissed 11 months later. His main injury was to his right shoulder which did not heal during this time. By the time of his dismissal he had not had the required surgery, let alone sufficient time to recuperate thereafter. A contributory factor to the delay was that a tear in the cartilage around the shoulder joint was not diagnosed until November or December 2016. A steroid injection in January made little difference and an arthroscopy was scheduled for 14 March, just over two weeks after he was dismissed.

As well as claiming that his dismissal was premature, Mr Muller said that the Trust had a duty to make reasonable adjustments to accommodate his disability, e.g. by providing him with office based work. As it happened, the arthroscopy confirmed that there was a tear which was repaired by surgery in July 2017. In January 2018 Mr Muller returned to occasional front line duties with a private ambulance service.

The Trust had encouraged him to apply for other jobs. There was a redeployment scheme. Mr Muller applied for a job in the archive department but was unsuccessful. In any event, he did not want a permanent reassignment.

He submitted a claim to an Employment Tribunal, for unfair dismissal, direct sex discrimination (a female comparator had been provided with office based work), disability discrimination based on failure to make reasonable adjustments and discrimination in connection with his dismissal.

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Barista rights: Starbucks or Starbucked?

Right, to start, a confession: I’m a coffee fanatic. And, no, that doesn’t mean that I purely order espresso shots and seek to then identify the origin of the exact coffee bean used when drinking it; rather, I regularly seek out coffee as a near necessary small luxury in life.

Now, that doesn’t mean I literally can’t function
without it. I managed to give it up for
40 days over Lent a few years ago, albeit my wife has practically banned me
from doing so again (the first week of work absent coffee wasn’t the most fun
experience!) But, overall, in a
stressful day, my instinct is to reach for a nice cup of java (whilst, if
you’re interested, is the name of an island they used to obtain coffee beans
from (as was the island of Mocha (seriously!))

Why the sudden fascination in coffee? Well, I’ve recently been reading an
intriguing book called ‘Starbucked’ by Taylor Clark. And, no, it isn’t a demolition job of Starbucks (nor a ‘fanbook’ financed by the company); rather, it is a neutral and balanced
look at the growth of Starbucks and also explores their employment practices
and treatment of staff.

As many are aware, Starbucks haven’t had the best
treatment in the press in recent years in relation to staff treatment (or,
indeed, their policies of allegedly ‘minimising’ tax liability). But how much of that is true?

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Personal liability of company directors

The conventional view of the liability of a limited company is that any corporate losses will not exceed the amount invested in it, i.e. as represented but limited to the value of its shares. In other words, shareholders’ personal assets are not at risk if the company fails. The company is a separate legal entity so it carries its own losses.

However, company directors (who are often also shareholders) owe a duty of care to the company, its shareholders, employees and creditors. As a result, a director can become liable for his or her own PAYE and NI payments, for income tax due on any cash taken from the company, any personal guarantees and/or indemnities provided to company creditors, and any liabilities resulting from wrongful trading (trading when the company was insolvent and had no prospect of avoiding liquidation), misfeasance (e.g. acquiring a company asset for less than it was worth) and fraudulent trading (e.g. fraudulently obtaining credit in the company’s name).

In last November’s newsletter I reported a case in which company directors were held to be liable for a £2m award in a whistleblowing case. This is because in such cases, as with discrimination claims, individuals can be named as co-respondents along with the limited company.

We now have another example of how directors can be held liable in respect of the actions of a company in the High Court case of Antuzis & others v DJ Houghton Catching Services & others.

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Can a long-term sickness employee become practically unsackable?

The Employment Appeal Tribunal (EAT) have recently held an employee to hold ‘an implied right not to be dismissed’ when on long-term sick leave.

Naturally, this has caused many employees great concern
because long-term sickness absence, in itself, is usually fair reason to
consider dismissal.  Whilst there can be
various factors at play, including any potential disability of the employee,
the principle of an individual having to be present at work to fulfil their job
role (and employment) remains.

So what happened in the recent case of ICTS (UK) Limited v Mr A Visram to cause such concern?

Well, let’s set the scene briefly, Mr Visram was
contractually entitled to sickness benefit payments (termed ‘Long Term
Disability Benefits’) during any period of continuous sickness absence from
employment whilst he remained an employee. 
But, for various reasons, the insurer and employer didn’t wish to pay
them and, in doing so, Mr Visram was dismissed on grounds of sickness absence
and so ended his entitlement to contractual Long Term Disability Benefits payments
by the insurer (as the policy required his continued employment).

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More sexual harassment claims in law firms

While many firms are very forward looking, it is apparent that the old “Mad Men” culture is hanging on in several locations, not least in law firms, even if in isolated pockets.

A couple of weeks ago, Lloyds of London announced a zero-tolerance approach to sexual harassment after it had been called “a meat market” and “institutionally sexist”. In response to recent allegations of harassment, Lloyds has announced that it will impose lifetime bans on anyone found guilty of “inappropriate behaviour”, as well as banning daytime drinking, again with a complete ban from the market for those who breach the rules.

Judging by recent reports, it seems that several law firms could benefit from considering what steps should be taken to contain the actions of their owners and employees

In Harrison v Riaa Barker Gillette LLP, a case heard over 11 days in late 2017 and early 2018 but in respect of which the judgment wasn’t published until late March 2019, the employment tribunal was asked to consider complaints sex discrimination, victimisation and harassment brought by Ms Harrison, formerly a partner and head of employment with the Respondent, a commercial and private client law firm based in the West End.

Ms Harrison joined the firm in December 2012 and was at the time the only female partner. She described ” a male dominated environment where inappropriate sexist and sometimes racist behaviour was tolerated, and on occasions laughed at”, with partners engaging in puerile banter.

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Government consultation on confidentiality clauses

On 4 March the Government published its consultation on “measures to prevent [the] misuse [of confidentiality clauses] in situations of workplace harassment or discrimination.

The consultation is widely regarded as being a direct response to the stories published late last year concerning the use of such clauses by Sir Philip Green’s companies, as highlighted in The Daily Telegraph once he was named in Parliament and the injunction against the paper was subsequently lifted. Just this week, The Sun has published a very concerning video of Sir Philip appearing to behave in a very familiar manner (choosing my words carefully!) with a member of staff who seems to be none too pleased with his attention.

The executive summary confirms the Government’s commitment to upholding and upgrading workers’ rights. Whether you accept that commitment will more than likely depend on your political view. However, the summary makes clear that “harassment or discrimination of any sort cannot be tolerated in the workplace”. It is acknowledged that confidentiality clauses have a “right and proper place” in the context of employment law, both in terms of employment contracts and settlement agreements. Existing limitations are noted, including the bar on preventing protected disclosures (i.e. whistleblowing) and the requirement for independent advice in connection with settlement agreements.

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