Month: August 2019

Categories
discrimination issues employment law religion or belief

Employment Law Snippet – No.2 – Is being Jedi a religion or belief?

Hello and welcome to our second Employment Law Snippet article. As usual, this article aims to focus on one general topic and engage in an interesting, non-jargon filled discussion on how that subject matter may affect employees and employers alike. Naturally, the below involves (quite a bit of) simplification of the law and isn’t set out out as any form of actual legal advice!

This week’s topic is a quirky one: Jedi! Yes, this is inspired by 0.8% of the 2001 UK census forms having ‘Jedi’ entered under ‘religion’. You may well be thinking ‘what on earth does the Jedi faith from Star Wars have to do with employment law?’ Well, as usual, an interesting question usually leads to an interesting answer…

Firstly, before tackling the big question, why is the definition of a “religion or belief” within the Equality Act 2010 important for employers? Simply put, it is important because it is unlawful for an employer to discriminate against an employee because of their ‘religion and/or beliefs or lack of religion or beliefs’.

So, let’s ask the key question from an employment law viewpoint: ‘What is a religion or belief under the Equality Act 2010?’ Some people may say ‘oh, well, that’s obvious, it is a religious belief in God, numerous gods, a non-human entity or a prophet’. However, Anglo-Welsh courts have held the definition to go further than that and, noticeably, have allowed numerous ‘beliefs’ to enter into what used to be referred to (inaccurately) as ‘religious discrimination’. As you’ll see from the below, it is now very much a ground of ‘religion or belief discrimination’.

How can ‘religion or belief’ go further than belief in a God or divine being? Well, most tellingly, atheism constitutes a ‘religion or belief’ under the Equality Act 2010.  Yes, that’s right, the belief in not believing in a God is classified as a religion or belief which, astoundingly to some perhaps, means that an atheist could have a discrimination claim against their employer on the basis of ‘religion or belief’ despite their belief, to most people’s eyes, being against having a religion.

In recent years, climate change has been held by the Employment Tribunal Appeal to constitute a relevant ‘religion or belief’ against which an employee can be discriminated on. In fact, within a 2010 case, the EAT set out a series of five conditions for a belief to be protected.  Let’s have a look at the test and apply the Jedi belief to it at the same time…

(1) The belief must be genuinely held

This may be a difficulty for the ‘Jedi faith’ because very few of the individuals who stated ‘Jedi’ as their religion within the 2001 UK census would be likely to persuade a court that they truly believed in ‘the force’ and Jedi mantra.

(1) It must be a belief rather than an opinion or viewpoint

Given that climate change was accepted, who is to say that Jedi values aren’t a belief also?

(3) It must relate to a weighty and substantial aspect of human life and behaviour

On the one hand, every religion does this by providing life mantras and comfort to those who have that belief and, in that way, is there a way of stating that true belief in Jedi mantra doesn’t do this for true believers?

(4) It must attain a certain level of cogency, seriousness, cohesion and importance

Not too sure Jedi would pass the ‘seriousness’ aspect of this test…

(5) Must be worthy of respect in a democratic society, must not be incompatible with human dignity and must not conflict with the fundamental rights of others

It is the ‘worthy of respect in a democratic society’ part that most likely sinks the Jedi ship here. Few judges would believe that anti-Jedi comments in the workplace should constitute discrimination against the employee if, say, a colleague stated that they ‘hated Star Wars because it was stupid’ (which, in essence, would be the effectively holy text of the Jedi belief).

So, overall, Jedi is probably not a religion or protected belief but only because a Judge is unlikely to believe that the belief is genuinely held (given that it comes from a fictional film universe) and, therefore, not serious enough to gain that protection within a democratic society. Unfortunately, therefore, it seems there will be no likely Employment Tribunal duels in the future between individuals with ‘Skywalker’ as a middle name and employers embodying the dark side of the force! But then, as per Yoda, “a Jedi uses the Force for knowledge and defence, never for attack”…

My thanks for reading our second Employment Law Snippet article.  Our intention is to publish these weekly and, at present, we have some entertaining topics lined up for the next few weeks!  In the meantime, we hope you’ve enjoyed this week’s topic.

Categories
disciplinary hearings dismissal by employer employment law gross misconduct social media unfair dismissal

A blog on blogging based on a blogging blog

Right, so I like a good blog on employment law-related topics and, in this blog, I’m looking to blog about employee blogging, even if those blogs are about blogs (or not blogs at all). Clear? Of course not, the only near guaranteed thing is that, by now, the word ‘blog’ has probably started to lose meaning in that way that words do when constantly repeated.

On a slightly more serious side, this article is about what happens when an employee publishes content (whether on social media, within physical media (including a local or national newspaper) or within personal blogs) that potentially harms the reputation of their employer. Where is the line drawn between innocent, harmless blog and, on the other hand, an online article or post that seriously harms the business of an employer?

As per the above title, I briefly covered this topic around 4 years ago in a past blog post. That article mentioned the rather quirky case of Walters v Asda Stores, heard in 2008, in which a manager jokingly (I hope!) posted a message stating that, whilst she was supposed to love her customers, hitting them with a pickaxe would make her much happier… The Employment Tribunal found that Asda had focused too much on the mere fact she was a manager rather than considering other factors (such as, I would imagine, how many people would have seen the post, would those people have actually thought she was being serious and/or would people really judge Asda for staff members occasionally making slightly inappropriate jokey remarks outside work) and ruled that the dismissal was unfair.

Overall, this area is one where (thankfully from my perspective!) an employee usually has to do something fairly impressive to be at risk of serious disciplinary action. In saying that, it is a slight employment law myth that writing personal blogs (including social media posts) is a huge risk – in fact, I note that the American Management Association website has an online article named “How to blog without getting fired” and two of the main headlines are “Blogging about your job or your boss may get you fired” and “Beware: employers are prescreening job applicants’ blogs”. Let’s have a quick look at the potential accuracy of both of these headlines (from a UK perspective).

So, let’s tackle the first headline. Does blogging about your job or your boss put you at risk of being dismissed? The simple answer? Yes. The longer answer? Yes, but only if your blog is sufficiently detrimental to the reputation of your employer.

So what is sufficient to harm an employer’s reputation? Unfortunately, there is no simple answer to this but let’s explore two quick examples:

EXAMPLE ONE – An employee has a bad day at work and posts on his Facebook account that his boss ‘is an idiot’ and ‘unfairly denied a holiday request’. He doesn’t name the boss, doesn’t mention his company and his Facebook account, which only has 40 friends, is private (i.e. only his 40 Facebook friends can view it, not the general public).

Is the employee likely to be dismissed? Not really. Hardly anyone will read the comment and, overall, whilst the boss in question may well want a word and, potentially, a serious chat about social media posting and keeping holiday requests confidential, we’re not looking at a likely gross misconduct dismissal here. Albeit, in saying this, it’s not exactly the best way to stay on your manager’s Christmas card list!

EXAMPLE TWO – An employee has a horrible week at work working in a food factory and, due to hating the low pay, decides to publish a Twitter post (on a publicly accessible account – i.e. accessible by those who don’t formally ‘follow’ you) making up a false allegation that some workers spit on the food on the conveyor belt. 

The employee quickly realises that his post was foolish and deletes it 10 minutes later but, unfortunately, due to having his employer named within his Tweet, it was screenshotted and re-posted by several users. It quickly does the rounds on social media and even ends up gaining traction within the odd newspaper.

Does it matter that the employee quickly realised their mistake and tried to delete it? Yes. Does that automatically prevent them being dismissed on gross misconduct grounds? No, it would merely be a mitigating factor for the employer to consider. The deciding factor may well be the extent of the damage to the employer’s reputation which, if the original Tweet was re-posted, may well be large enough to allow for gross misconduct dismissal.

The second example above is a good example of how far an employee is likely to have to go to face gross misconduct dismissal for blogging and/or social media posts. Other examples include discriminatory comments against individuals on the basis of (for example) gender, age, sexual orientation, disability, religion or race.

As for the second headline about pre-screening job applicants’ blogs, whilst the occasional employer might google the job applicant’s name, I doubt most would act further and intentionally seek out and read individual blog posts prior to interview!

Overall, then, minus any truly controversial content, I’m relieved to conclude that writing blogs is unlikely to put employment at risk and, unfortunately for Canter Levin & Berg, that means the current blog train is unlikely to lose steam anytime soon…

Categories
discrimination discrimination issues employment law recruitment

Employment Law Snippet – No.1 – Tattoos

Hello and welcome to our first Employment Law Snippet article. These conversational articles aim to focus on one general topic and then have an interesting, non-jargon filled discussion on how that subject affects employees and employers alike.

The first topic is an interesting one: tattoos! You may be thinking “what on earth do tattoos have to do with employment law?” Well, not that much at present but that may start to change in the future.

Are tattoos that important a consideration within employment law? Well, to start, I regularly hear employment-related tales of friends of friends and, recently, I heard about a young woman in her twenties going to a job interview and all, initially at least, going very well with the interviewer. That is, until the interviewer noticed the small floral tattoo on her wrist (which barely poked out from underneath her small watch) and, from that moment, the interviewer appeared to ‘go off’ her, cut the interview short and, lo and behold, she didn’t get the job (which, for the record, wasn’t in a customer facing position).

Is it right that interviewers can hypothetically discount an excellent job candidate simply because of a tiny, non-confrontational tattoo (particularly when the tattoo could be easily covered up?)  This is similar to a hypothetical situation in which, for example, two white male job candidates turn up (on with brown hair and one with blonde hair) and the interviewer simply decides that he trusts blonde people more and, on that alone, goes with the blonde haired person.  As helpful as that might be for myself(!), should that be legal?  Is it right that these situations don’t come within anti-discrimination protection for job applicants under the Equality Act 2010?

Well, there are some potential exceptions to the general rule of thumb that tattoos aren’t covered by the anti-discrimination provisions within the Equality Act 2010.  One of the most common?  Where the tattoo relates to religion (i.e. a candidate turns up with a discreet tattoo of a crucifix, albeit viewable by the interviewer because the individual isn’t wearing a watch) and it can be shown that, without noticing the religious tattoo, the interviewer would have offered the job. 

The problem with this argument, however?  Well, in the case of Eweida v BA, it was held that wishing to take action against an individual wearing a crucifix against the dress code wasn’t religious discrimination because it wasn’t a ‘requirement of the religion’ (i.e. most Christians don’t wear crucifixes because there is no religious teaching to do so), so this principle could apply to tattoos of a crucifix.  (I’ll ignore the more complex case of Eweida v United Kingdom for the purposes of this article.)  However, in some countries, such as New Zealand, certain religions (such as Maori) have religious tattoos which, under Anglo-Welsh law, could well be protected, albeit it is a relatively untested argument so far.

On the topic of religion, we could well continue down that path and debate ‘what is a religion’ with the usual amusing question being ‘does being a Jedi count?’ (following reports that nearly 1% of the respondents to the 2001 UK census put their religion down as ‘Jedi’).  Perhaps a future Employment Law Snippet topic…

Another potential exception?  A job candidate with a Pride flag tattooed on their wrist in the same manner.  Any interviewer who looks at the tattoo and believes the job candidate is LGBT+ and/or isn’t heterosexual (whether accurate or not) and, on that basis, refuses to offer the job is most likely breaching the protected characteristic of sexual orientation under the Equality Act 2010.  It doesn’t actually matter whether the perception of sexual orientation is accurate or not (i.e. if the interviewer believes a job candidate is bisexual, but they aren’t, they still can be held to discriminate due to bisexuality by perception).

The topic of tattoos within employment is likely to get more air time in coming years because, overall, tattoos are becoming more commonplace.  I still recall the media articles over Samantha Cameron having a tiny dolphin tattoo on her ankle and this being considered ‘news’ because she was the wife of the Prime Minister and as a reflection of a modern culture shift.  Nowadays, people are much more likely to interact with customer-facing employees with tattoos and, indeed, any company trying to avoid doing so, may eventually find themselves fishing in a more limited pool of candidates.

In fact, most employers that had an aversion to tattoos, are now aware of the improved public perception of tattoos and, therefore, the limited impact of small, discreet tattoos.  Even with larger tattoos, as long as they aren’t controversial, employers can be open to use of specialist plasters and/or tattoo make-up (and/or a long sleeve dress code) for customer-facing individuals.  Overall, this is now an increasingly common approach in contrast to the more ‘old school’ method of having a blanket ban against tattoos.

In the future, I think employers with overtly anti-tattoo agendas may risk becoming increasingly ostracised on social media and within local media.  This could be almost along the lines of the high heels dress code controversy within the UK a few years ago (and which is currently gaining traction afresh in Japan) where flat soled shoes are perfectly acceptable in most circumstances.  In fact, in the same way as that issue caused a media (and social media) storm, I can foresee detrimental treatment of staff (and job candidates) on the basis of tattoos doing the same in the future.

In this way, I don’t think any additional legal protection is required (in saying this, I disagree with a member of a National Tattoo convention who called for tattoos to become a protected characteristic under the Equality Act 2010 several years ago) as, overall, most employers tend to be near equally wary of negative media (and social media) publicity than Employment Tribunal claims.

So, tattoos.  So far, not the subject of any big legal or media battles.  But into the future?  I reckon the litigation needle will be pushed upwards…  (Sorry!)

My thanks for reading our first Employment Law Snippet article.  Our intention is to publish these weekly and, at present, we have some entertaining topics lined up for the next few weeks!  In the meantime, we hope you’ve enjoyed this week’s topic.

Categories
confidentiality clauses contracts of employment employment law settlement agreements

Competing interests lead to more confusion concerning NDAs

On 21 July (oddly given that it was a Sunday) the Government announced what it described as “measures to prevent misuse of confidentiality clauses in situations of workplace harassment or discrimination. Frankly the press releases are light on detail. However, the four main changes are as follows:

  • Employers will have to make clear the limitations of a confidentiality clause, in plain English, within the settlement agreement and in the form of a written statement for the employee. In other words there will have to be a notice to the employee within the agreement which clearly explains what the clause does not cover.
  • Current legislation will be extended so that it will be a requirement for all individuals signing an NDA (whether or not contained within a settlement agreement) to obtain what is described as enhanced independent legal advice, presumably at the employer’s expense. This is potentially interesting because it raises the possibility that employees may need to obtain such advice at the commencement of or during employment, perhaps even before the commencement of employment. Much will depend on the definition of what constitutes a regulated NDA and that information, perhaps unsurprisingly, has not been published.
  • All NDAs must make clear that the restrictions will not prevent the employee from disclosing the otherwise protected information to the police, regulated care and health professionals, social workers and, interestingly, legal professionals. As matters stand, most settlement agreements include a confidentiality clause which provides that not only the terms but even the existence of the agreement must be kept confidential, save for immediate family members and relevant professional advisers (i.e. those advising the employee concerning the agreement).
  • Enforcement measures will introduced to deal with settlement agreements and written statements of employment particulars that do not comply with the regulations, including that non-compliant NDAs will be legally void.

Chief Executive of the Equality and Human Rights Commission said:

Harassment and discrimination should never go unanswered and unchallenged just because victims are prevented from speaking out. This new legislation will help to end ambiguity about employees’ rights and stop the misuse of NDAs to protect corporate and personal reputations and obstruct justice.

The use of NDAs is only part of the problem of workplace harassment and discrimination and employers must step up to protect their employees from this appalling behaviour before it happens. We are developing new guidance on NDAs and tackling harassment which will provide further clarity for employers and help them create safe and supportive environments.

It is surprising that the list of those to whom information in the NDA can be disclosed does not include immediate family members, since that is routinely permitted in most existing settlement agreements. It has also been suggested that permitted disclosure should be extended to regulators such as the Financial Conduct Authority and the Information Commissioner.

In the meantime, The Law Society has issued guidance for the public concerning NDAs. Oddly, this suggests that employees should ask for a copy of the agreement, which implies that they might not be provided in all cases. This is inconsistent with a warning notice issued by the Solicitors Regulation Authority which states that it would be improper for a solicitor to not to provide the employee with a permanent copy of the agreement.

The guidance also states that NDAs should be clear about who an employee can talk to “including family members and medical professionals” and that it would “not be normal” to prohibit disclosure to professionals for legal, tax advisory, medical or therapeutic reasons. It suggests that an agreement may not be legally binding if an employee is not given sufficient time to consider the agreement and/or to obtain legal advice. However, the Society’s guidance for solicitors merely states that it is “good practice” to give anyone signing an NDA time to consider it and potentially to obtain legal advice.

Crispin Passmore, former SRA policy adviser has described The Law Society’s guidance as “an example of public mis-education”.

It seems that reform cannot come soon enough although, of course, it remains to be seen whether Parliamentary time will be found in order to legislate on the matter.

Categories
Court of Appeal Employment Appeal Tribunal employment law employment status immigration wages disputes

Can an employee who does not have the right to work in the United Kingdom bring a successful employment law claim?

The ‘illegality principle’ prevents a court from aiding a claimant who has based their claim on an immoral or illegal act, meaning that a tribunal or court will generally not enforce an illegal contract.

An employer of an individual working under an illegal contract can raise a defence against any employment claims the individual may bring against them. This is what is known as the ‘illegality defence’, the basis of which is that the contract is illegal and therefore void, so the claim should not succeed.

A common example of an individual working under an ‘illegal contract’ would be an employee who is working in the UK despite not having the right to – i.e. working illegally, in breach of immigration laws.

In recent years, tribunals and civil courts have been reluctant to allow an employer to use the illegality defence to block vulnerable migrant workers’ employment tribunal claims.

An interesting Court of Appeal decision has further illustrated this. The case of Okedina v Chikale, has shown that an employer cannot always automatically rely on a breach of immigration rules to argue that an employment contract is unenforceable. The matter concerned contractual claims (including unfair dismissal) brought by a Malawian national whose leave to remain (and right to work) in the UK had expired two years before the time she was summarily dismissed.

The Claimant, Ms Chikale, was originally employed by Mrs Okedina in Malawi in 2010 where she was taken on to care for Mrs Okedina’s parents.

Mrs Okedina decided to bring Ms Chikale to the UK in July 2013 to continue to work for her as a live-in carer. Ms Chikale was initially granted a visa to work in the UK, however this expired in November of the same year.

Mrs Okedina assured Ms Chikale that she had successfully applied to extend the visa, however it transpired that within the application she had fraudulently named Ms Chikale as a family member, amongst other inaccuracies, and the application was subsequently refused. As a result, Ms Chikale was working illegally in the UK from November 2013 onwards.

Ms Chikale was never made aware that the application had been unsuccessful, so she remained in the UK, working for Mrs Okedina. She held a genuine belief that she had the right to continue working here in the UK.  

Throughout her period of employment, Ms Chikale received only minimal remuneration, despite being promised a healthy salary and other benefits (including the provision of education) before leaving for the UK from Malawi in 2013.  In 2015 when she requested an increased wage from Mrs Okedina, she was summarily dismissed.  She then proceeded to bring a claim against Mrs Okedina for unfair and wrongful dismissal, unlawful deduction from wages, and unpaid holiday pay.

Ms Chikale’s claims were upheld at the Employment Appeal Tribunal which considered whether or not the contractual claims should have succeeded given that the contract was illegal from November 2013 (when the Visa extension was denied) onwards. 

This case is distinct from most case law in this area as generally, an employee is well aware of their immigration status, and thus has some culpability should they continue to work illegally. In this case however, it was the employer, Mrs Okedina, who was concealing Ms Chikale’s true immigration status.

The Court of Appeal decision took account of this and ultimately found in Ms Chikale’s favour. The court considered whether the Immigration Asylum and Nationality Act 2006 (ss. 15 and 21) meant that an employee who had no right to work in the UK (even if they believed they did have this right) should be barred from bringing contractual claims by way of the principle of statutory illegality.

The court held that to imply the above would be going a step too far. It was held that the true intention behind the above legislation was to ensure penalties were imposed on people who knowingly employed illegal workers, rather than to penalise the workers themselves. The court decided against allowing the illegality defence in this case, as it would mean that an innocent employee would be deprived of all contractual remedies against their employer.   

Ms Chikale, who was mistakenly under the belief that she had the right to work in the UK, had not knowingly participated in any illegality and as such the court held that there was no reason to deny her a remedy – the Court of Appeal therefore rejected Mrs Okedina’s appeal and upheld Ms Chikale’s contractual claims.

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CLB Employment Solutions Court of Appeal Employment Appeal Tribunal employment law employment tribunals EU holiday pay holidays news newsletter zero hours contracts

Calculating holiday pay for workers with ‘irregular’ hours

The Working Time Regulations 1998 (WTR’s) state that workers are entitled to a minimum of 5.6 weeks’ leave per year with part-time workers being entitled to a pro-rated amount of this figure. For example, an employee working full time would be entitled to 28 days per year (5 days x 5.6 = 28) whereas a part-time employee working say 3 days per week, would be entitled to 16.8 days per year (3 days x 5.6 = 16.8 days).

The above is clearly a straightforward calculation, however the situation becomes more complicated for workers who do not have ‘normal working hours’. Under the Employment Rights Act 1996 (ERA) if an employee works irregular hours, their holiday pay should be calculated using an average of their pay over the last 12 weeks. On the basis that the 5.6 weeks leave entitlement amounts to 12.07% of a worker’s hours (12.07% reached by dividing 5.6 by 46.4 (total number of weeks in a year less 5.6 weeks holiday), employers have generally calculated holiday pay as 12.07% of pay for each hour worked (i.e. the assumption was that the calculation for both the amount of holidays and holiday pay, would be the same). The recent case of The Harpur Trust v Brazel however, shows that the same approach does not work for both…

Ms Brazel was employed under a zero-hours contract as a part-time teacher for a school and did not work every week.  Her contract stated that she was entitled to a full-time equivalent of 5.6 weeks annual leave, to be taken during school holidays.

Her employers calculated her holiday pay at 12.07% of the hours worked in a term, which would be paid over three instalments at the end of each term. Ms Brazel however, argued that her holiday pay should have been calculated using her average weekly earnings for the 12 week period before her holiday was taken.

The Employment Tribunal (ET) rejected Ms Brazel’s claim, finding that the interpretation of the WTR’s could be that holiday pay should be based on 12.07% of hours worked when a worker works less than 46.4 weeks.  Ms Brazel subsequently appealed to the Employment Appeal Tribunal (EAT) however, which held that the 12 week average calculation should be used instead, as per the WTR’s and ERA.

Next the School appealed to the Employment Appeals Tribunal (EAT), who disagreed with the ET’s findings and stated that a 12 week average calculation should be made in accordance with the WTR’s and ERA.

Subsequently upon further appeal, the Court of Appeal (CA) agreed with the decision made by the EAT and stated that it was incorrect to read words into the WTR’s as the ET had done, which would result in term-time only workers having their holiday pay capped at 12.07% of annualised hours.  Adding the pro-rata requirement/an accrual system would be an entirely different system that was not required by EU law – the WTR’s only require the calculation of a week’s pay and thereafter multiplying this week’s pay by 5.6.  The CA went on to summarise the legal position as follows: “The WTR do not provide for the kind of pro-rating for which the (school) argues and which underlies the application of the 12.07% formula in the case of a part-year worker.  The exercise required by regulation 16 and the incorporated provisions of the 1996 Act is straightforward and should be followed.”

In summary, it is likely that not only teachers will be affected by this judgment – zero-hours contract workers not working a full year should have their holidays calculated using the 12 week average calculation and not the 12.07% formula, which will no doubt be administratively a lot more difficult and time-consuming for employers! 

Employers would be best advised to review their holiday pay calculation procedures and also to be wary of the potential for back-pay claims.

Please contact Katharine Kelly on 0151 239 1079 or katharinekelly@canter-law.co.uk should you have any queries regarding the calculation of holiday pay.

Categories
dismissal by employer employment law misconduct

Employment Law: A study of Peanuts

I’ve just passed two years’ service here at Canter Levin & Berg and, during that time, if my colleagues were asked to describe my obvious passions in two words, those words would be probably be ‘penguins’ and ‘Snoopy’. That wouldn’t be surprising considering that my office contains a Snoopy resting on his doghouse, penguin figurines and numerous colleagues regularly receive Snoopy pictures within internal emails…

From time-to-time, I use hypothetical examples to demonstrate employment law principles and solutions and, within blogs, I tend to slip in the odd character from the Peanuts universe. Fun fact? The creator of Peanuts had the title fostered upon him by newspaper editors and hated it to such an extent that when asked about Peanuts he always referred to it as ‘that comic with Charlie Brown and his dog’.

One of the interesting things about employment law is the fact that things that can annoy or entertain outside the workplace can be viewed very differently within the workplace and it can be interesting to view the differences.  So, let’s explore some characters and famous strips from a quirky (and slightly exaggerated) employment law perspective!

Charlie Brown – Charlie Brown is a surprisingly complex character.  On the one hand, he is near constantly pessimistic with life (“Goodbyes always make my throat hurt… I need more hellos”) but, at the same time, he is surprisingly optimistic and always full of hope that things may just improve if he keeps persevering (“In the book of life, the answers aren’t in the back”).

In fact, the repeated comic strip scenario in which Lucy Van Pelt persuades Charlie Brown over-and-over that, this time, she won’t pull the American football away as he goes to kick it were such a staple that, for the last such strip before retirement, Charles Schulz, on being asked about it simply remarked “you can’t create humour out of happiness”.

Charlie Brown would be an interesting employee as, whilst in charge of the baseball team, they lost every game and, for the one game he missed through injury, they won!  Obviously, there may be poor performance concerns when his team’s performance suddenly improves when he isn’t managing them but, before taking action, any employer would need to consider that Charlie Brown, albeit mocked by some, appears to be universally popular and well liked as manager and as a person.

Lucy Van Pelt – Lucy Van Pelt is a very thorny, blunt female character who takes particular delight at shouting at Charlie Brown.  Whilst not quite in the territory of bullying him, she is mean and tricks Charlie Brown on a regular basis.  Overall, however, she is entertainingly honest but with quotes along the lines of “I just think I have a knack for seeing other peoples faults”, her relationship with other characters can be strained and could lead her into trouble.

But it is one of her most famous quotes we’ll look at here: “Happiness is a warm puppy…”  That quote is well known to most fans of the Peanuts series and remains me of an entertaining Christmas Party tale (albeit about cats!)

Basically, a Receptionist within a firm had a few sherries too many at the Christmas party and sternly told every staff member she could get hold of that she would rather be spending the evening with her cats because they were ‘more fun and much more intelligent than the lot of you’.  Upon returning from the Christmas break, and noting the icy working relationship from colleagues, she quickly departed for pastures new…  Perhaps a lesson to be learnt for Lucy about blunt honesty within any working environment.

Snoopy – Snoopy is the second biggest character in the Peanuts universe (behind Charlie Brown).  Obviously, he needs no introduction save stating that he is a mischievous dog with human qualities who lives in a doghouse (as per the picture to this blog).

In one way, Snoopy would be a handy substitute for myself in writing blogs due to his propensity to get out his typewriter and start many a tale with the dramatic words: “It was a dark and stormy night”.  However, it is perhaps worth admitting that some of his written exploits aren’t of the highest quality:

  • Snoopy types on typewriter: “”Help” she cried.  “Help! Help! Help! Help! Help! Help!””
  • Linus (reading the page): “This is a very boring story…”
  • Snoopy (back at typewriter) thinks: “I’ll add another “Help!””

Nor does Snoopy seem to have the greatest work ethic: “Learn from yesterday.  Live for today.  Look to tomorrow. REST THIS AFTERNOON!”  Overall, Snoopy may also well be at risk of a poor performance process due to his incessant daydreaming about fighting the “Red Baron” for control of the wartime skies ensuring he stops what he is doing in real life!

Would the Peanuts gang make great employees?  Of course not!  However, some of their traits (poor performance, daydreaming, harsh internal comments to colleagues) are real-life issues which require careful consideration by employers!

Categories
dismissal by employer employment law gross misconduct manner of dismissal termination of employment

Gross negligence: Apollo 11 back down to Earth?

It’s official. I’m a fully signed up member of Sky TV. I get to indulge in the football, my wife gets US dramas and we both get the F1. My family’s view? That we’ve ‘gone posh’… Yes, Sky TV is viewed with incredulous eyes within our family clan.

Why do I suddenly sound like a satellite TV salesman? Well, recently, on a whim, I recorded a program about the 1969 moon landing on the TV, which was excellent and marked the 50 year anniversary of Apollo 11’s landing on the moon. One of the most fascinating aspects of the show concerned interviews with NASA engineers who knew that one incorrect/flawed part on the shuttle could lead to mission failure and/or the deaths of the astronauts in front of the watching world. In fact, such were the risks that President Nixon had a printed speech ready in the event the astronauts died.

What does this have to do with employment law? Well, unbeknown to some, it is possible to dismiss a member of staff for ‘gross negligence’ and, being an employment law aficionado, the programme set me to thinking about this little-used reason for dismissal.

Rather than use the moon landings as an example, which seems a bit morbid and disrespectful to the astronauts, let’s come up with a fresh scenario: Apollo Amazing Aero Limited provides luxury lifts for fancy hotels and expensive buildings. The lifts are bespoke to each customer, who pay a very large amount of money expecting swift and quality-driven installation and exceptional reliability. Given the nature of the business, word of mouth between luxury clients is very important to the company.

Let’s consider two employees who install a lift each for the client: Charlie Brown and Peppermint Patty. Charlie Brown is provided with a part of poor quality (from a poorly produced batch) and, due to this, the section of lift he installs is prone to fail (which it later does). The employer (AAA Limited) is annoyed at Charlie Brown because they felt he should have checked the part thoroughly before inserting it into the lift machinery, even though this isn’t part of their training and isn’t usual procedure.

Should Charlie Brown be dismissed for gross negligence?  This would be unlikely as Charlie Brown hasn’t been trained to inspect the quality of parts and, instead, reasonably believes that he is expected to accept that parts provided to him are of sufficient quality (unless obvious to the naked eye).

On the other hand, Peppermint Patty was given parts of appropriate quality but, due to being distracted by engaging in a lengthy WhatsApp conversation on her phone during an hour of installation, isn’t paying full attention to the job and ends up inserting two of the relevant parts into the lift the wrong way around without noticing.  Due to this, the lift almost immediately fails once installed and requires a £5,000 repair bill which the company have to stomach due to the client’s (understandable) fury and threats of informing other potential customers of the ‘shoddy’ quality on a so-called ‘luxury and bespoke’ product.

Is Peppermint Patty’s job at risk if the full facts become known to the employer?  Potentially, yes.  Patty would be more than aware that AAA Limited ban use of mobile phones (outside of break periods) and that inserting parts into the lift in the wrong way creates great risk of the lift not working safely meaning a very unhappy customer, a need for repair and loss of profit and reputation for the luxury-customer facing company.

Naturally, it isn’t always that simple because Patty’s length of service, employment record and other factors need to be accounted for but, overall, it is a genuine question with Patty as to whether employment should continue whereas, in comparison, Charlie Brown’s job is relatively safe.

Overall, most employees won’t be dismissed due to making mistakes as, at the end of the day, making mistakes is part of life and the only way to avoid mistakes is doing no work at all!  However, an intentional lack of attention and/or dangerous attitude to carrying out key tasks (like Peppermint Patty above) can sometimes, in serious situations, put an individual’s employment at risk and bring them back down to earth!