Categories
discrimination religion or belief

Liverpool Mayor claims that belief in public service is protected under the Equality Act

joe_andersonMy regular readers are aware that I am intrigued by the way in which protection of religion or philosophical belief has developed in ways that surely could not have been envisaged when the Regulations which preceded the current protection under the Equality Act 2010 came into force in 2003.

In January I reported that belief in the Labour Party was a characteristic capable of protection under the Act. It should therefore come as no great surprise that a belief in public service attracts the same protection.

Joe Anderson is the current and first directly elected Mayor of Liverpool. It would be fair to say that he divides opinions. Among many things he has been called the left’s answer to Boris Johnson. He was born in 1958 and left school at 16 without any qualifications. He joined the Merchant Navy and spent some time working in the leisure industry. As a mature student at Liverpool John Moores University he obtained a Postgraduate Diploma in Social Work and subsequently became a full-time social worker.

Alongside his working life he was elected as a city councillor in 1988, became leader of the Labour group in 2003 and in 2010 became Leader of the Council. He became elected Mayor in 2012.

The background is relevant because, in Anderson v Chesterfield High School, he contended that he was a victim of direct discrimination as a result of the termination of his employment after an extended leave arrangement to allow him to fulfil his public duties. The period of leave commenced in 2010 but his election as Mayor in 2012 for a four year term prompted the dismissal.

The 2009 Employment Appeal tribunal case of Grainger v Nicholson (which concerned a belief in climate change) established the five point test which has subsequently been used in such cases and was duly applied at the preliminary hearing in this case.

Categories
ACAS flexible working maternity leave maternity pay parental leave part-time workers paternity leave

right to request flexible working extended to most employees

clocking_onMost employers are familiar with the procedure to be applied when dealing with flexible working applications which have been around, on a legislative basis, since 2003. Initially the right to request flexible was confined to the parents of children under six or of disabled children under 18.

In 2007 the right was extended to carers of adults and in 2011 to parents of children under 18. With effect from 30 June 2014 the right is extended to all employees who have 26 weeks’ continuous employment at the time the application is made. Only one application per year may be made.

As a result, now is a good time to recap the key elements of fairly handling a request for flexible working. The first thing to bear in mind is that the entitlement is to request flexible working rather than an entitlement to flexible working on request. Nonetheless, employers must take request for flexible working seriously. What does that mean in practice? If an application is refused then the employer may be required to justify the decision, both in terms of the steps taken to consider it and the substantive reason for rejection.

According to the ACAS draft guidelines valid reasons for rejection may include:

  • Burden of additional costs
  • Inability to reorganise work among existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Detrimental effect on ability to meet customer demand
  • Insufficient work for the periods the employee proposes to work
  • Planned structural change to the business

However, employers should bear in mind that it is not enough to give the reason; if called upon to do so the employer may be required to justify the reason.

Categories
health and safety qualifying period unfair dismissal whistleblowing

whistleblowing protection for concerns about driving in snowy weather

Michael_Wood_Motorway_Services In Norbrook Laboratories (UK) Ltd v Shaw Mrs Justice Slade DBE sitting in the Employment Appeal Tribunal was asked to consider whether a series of emails, taken together, could be treated as a protected disclosure for the purposes of section 43B(1) of the Employment Rights Act 1996 (whistleblowing protection).

Mr Shaw claimed automatic unfair dismissal and being subjected to a detriment, both on the grounds of having made a protected disclosure (he had insufficient qualifying service to claim “ordinary” unfair dismissal). His disclosure was communicated by two emails sent on 30 November 2010 and one on 6 December 2010. Taken in isolation each email did not constitute a protected disclosure.

Mr Shaw commenced employment with Norbrook as part of an on-the-road pharmaceutical sales team. His duties included visiting clients and prospective clients with a view to securing sales. As readers may recall the winter of 2010 was particularly severe with large snowfalls and motorways closed.

On 30 November he sent an email to Norbrook’s health and safety manager, Mr Cuthbertson:

Could you please provide me with some advice on what my Territory Managers should do in terms of driving in the snow. Is there a company policy and has a risk assessment been done.

Taken in isolation this was an enquiry and not a protected disclosure. He was told that there was no applicable policy or risk assessment but he was given advice about driving in the snow. About two hours later he sent a further email to Mr Cuthbertson:

I was hoping for some formal guidance from the company. The team are under a lot of pressure to keep out on the roads at the moment and it is dangerous. Do I log this as the formal guidance?

Following enquiries from territory managers about whether they would be paid if they were snowed in Mr Shaw sent a further email on 6 December, this time to a member of staff in the human resources department. This email included the following:

I am only after a simply [sic] policy statement to increase transparency and help build morale and goodwill within the team. As their manager I also have a duty to care for their health and safety. Having spent most of Monday and Friday driving through snow I know how dangerous it can be. In addition the time spent battling through the snow is unproductive; they can gain more sales by phoning customers. If they are not going to be paid then I have to put in contingencies for diverting calls to those team members still on the road. In the absence of any formal guidance I take full responsibility for the directions given to my team.

The Employment Tribunal concluded that, taking the communications as a whole, they were capable of amounting to a qualifying disclosure with reference to section 43B(1)(d). On appeal it was submitted for Norbrook that this conclusion was perverse or erroneous, that he was merely expressing an opinion and that the disclosure (if that is what it was) could not be spread over a number of documents. Mr Shaw submitted that he made two qualifying disclosures: failure to comply with health and safety requirements and breaches of the Health and Safety at Work Act 1974.

Categories
age discrimination employment law

McCririck age discrimination case fails

John_McCririck

On 13 November the Central London Employment Tribunal handed down its reserved decision in the case of McCririck v Channel 4 Television Corporation and IMG Media Limited. Given the celebrity status of the Claimant the case attracted a good deal of attention. IMG took over the contract to broadcast all terrestrial coverage of horse racing commencing 1 January 2013. In doing so it displaced the incumbent, Highflyer, for whom McCririck had worked since 1996 and previously with Channel 4 since 1984. As part of its pitch for the contract IMG said that they wanted to introduce a more analytical and journalistic approach to coverage. However IMG management, and former BBC employee Carl Hicks in particular, took the view that Mr McCririck did not fit the brief. Ultimately the Tribunal agreed and held in its judgment:

Mr McCririck was dismissed because of his persona emanating from his appearances from celebrity television shows, and the associated press articles resulting from them, together with his appearances as a broadcaster on Channel 4 Racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims, and his opinions seen as arrogant and confrontational…

All the evidence is that Mr McCririck’s pantomime persona, as demonstrated on the celebrity television appearances, and his persona when appearing on Channel 4 Racing, together with his self-described bigoted and male chauvinist views were clearly unpalatable to a wider potential audience. The tribunal is satisfied that the respondent had the legitimate aim of attracting a wider audience to horseracing.

However Mr McCririck claimed in evidence that, particularly in his appearances elsewhere, such as on Celebrity Big Brother, he was adopting a “pantomime persona” that was positively encouraged by Channel 4 executives so that, in effect, they could not have it both ways.

The judgment provides an extraordinary insight into the details of a tender for a significant television sports contract. Much of the narrative is of great interest to a racing fan such as me. From a legal perspective the detail is light on the application of the law to the facts. It is significant that, although barely noted in mainstream reporting, since all those whose contracts were not renewed were over 50, the onus shifted from Mr McCririck to Channel 4 and IMG. Instead of the claimant establishing that there was age discrimination, the respondents had to show that there was not. An unsatisfactory aspect of the decision is that there is no analysis of this aspect and it seems to be assumed that there was age discrimination. However, that discrimination was justified because the approach adopted was a proportionate means of achieving a legitimate aim, namely extending the appeal of horseracing to a wider audience.

Categories
dismissal by employer employment law gross misconduct mitigation procedure unfair dismissal

does a finding of gross misconduct always justify dismissal?

Ealing_Hospital

It may seem an obvious reply. Surely gross misconduct, once established, has destroyed the employment relationship at such a fundamental level that it cannot realistically continue.

The question was considered by the Employment Appeal Tribunal in Brito-Babapulle v Ealing Hospital NHS Trust. Ms Brito-Babapulle was a consultant haematologist at Ealing Hospital. Pursuant to the terms of her contract she was entitled to have a session of private patients in addition to her NHS patients. She commenced a period of sickness absence on 13 March 2009 which, apart from one day, continued until 8 June 2009. Her employer suspected that she was continuing to see private patients while she was certified unfit to work and in receipt of full contractual sick pay. Disciplinary proceedings were commenced accordingly.

Ms Brito-Babapulle accepted during the disciplinary proceedings that what she had done was wrong although she maintained that she did not think so at the time of the wrongdoing. She had received two prior notifications that if certificated sick she should not work in private practice. She claimed not to recall the notifications but her evidence on this point was rejected both in the disciplinary proceedings and the subsequent tribunal. It was concluded in the disciplinary proceedings that there had been gross misconduct. Alternatives to dismissal were not seriously considered in light of the breach of trust. Taking into account her experience she should have known better. She appealed against her dismissal and the appeal was not upheld.

The Tribunal which followed considered whether dismissal was justified:

On the facts decided by and known by the Respondent at the time we take the view that this dismissal did fall within the range of reasonable responses. The Respondent was entitled to find that the Claimant’s actions amounted to gross misconduct. We bear in mind the not unreasonable findings that the Claimant had been told in 2007 about this very same conduct; that she was a very experienced doctor who had knowledge of sick certificates and had herself decided not to sign the reverse of those sick certificates as she had indeed been working. Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses.

Categories
privilege settlement agreements

the practicalities of settlement agreements and without prejudice discussions

signature

Ahead of the implementation of the new regime for settlement agreements, the Acas Code of Practice has been published in its final form. This is a statutory code of practice, not just guidance. That means that when considering matters such as procedure and fairness, a tribunal can take into account whether the provisions of the Code have been applied and adhered to. It is therefore essential reading for all involved in HR and employment law matters and is a commendably straightforward document. In its final form it is a bit more flexible than the original draft. In particular there is now no need for a written offer to start the process (although a lot of employers will have one prepared) and the standard letters are not part of the statutory Code. However, they are still part of the guidance provided. An important point is that it provides for employees to be accompanied at meetings – as a matter of good practice, not a statutory right. This is a sensible move. If a settlement offer is coming out of the blue, an employee will be “shell-shocked” and could very well not be taking in what is being said. If on the other hand the employee has seen the writing on the wall, he or she will be feeling anxious and defensive – and on this basis might well not be taking in what is being said. Another change is that the suggested minimum time to consider the offer has been increased from seven to ten days, which gives the employee a weekend to fret and/or fume, and a working week to get some informed advice.

The protection given to pre-termination settlement negotiations only applies “to the extent that the tribunal considers just” and will not be available to the employer if anything done or said in the negotiations is “improper”. The Code gives examples of improper behaviour, including:

Categories
whistleblowing

whistleblowing update

whistle

Late June saw the introduction of some significant changes to the whistleblowing provisions set out in the Public Interest Disclosure Act. However, before considering the changes I think that it is worthwhile taking a little time to consider just what whistleblowing is in the context of UK employment law. In its simplest sense whistleblowing is “blowing the whistle” or bringing out into the open wrongdoing by an employer. Prior to the implementation of the Public Interest Disclosure Act 1998 (in July 1999) whistleblowers had no protection from dismissal. Further, they could be subject to claims for damages for breach of confidence (on the basis that the whistleblowing entailed the disclosure of confidential information obtained in the course of employment), although it was possible to raise a public interest defence in limited circumstances.

The Act came into force against a background of financial scandal and “sleaze” and is aimed at ensuring that employees can disclose certain types of information, such as financial wrongdoing, crime, or health and safety matters, without suffering a detriment. Examples could include a danger in the workplace, financial misreporting, or medical negligence in a hospital. The concern raised must be “genuine” and based on “reasonable grounds”. Breach of the Act by employers can result in employment tribunals proceedings and awards of compensation. Dismissal for whistleblowing is treated as automatically unfair.

Many employers responded to the new law by implementing “whistleblowing policies” confirming their commitment to the avoidance of detriment and providing express protection for whistleblowers. Such protection can only be effective if employees know what whistleblowing is (e.g. it is not raising general grievances) so policies tend to explain this as well as spcifying a method for reporting wrongdoing confidentially and confirming that it will be a disciplinary offence to victimise a whistleblower or to make a false allegation maliciously. Our Employment Solutions standard documents (available to subscribers) include a tried and tested whistleblowing policy along with detailed guidance notes. Other employers have sought to “gag” employees by requiring them to sign confidentiality clauses, generally accompanied with substantial payments on the termination of employment.

Whistleblowing has been much in the news in recent months, what with Edward Snowden and the NSA, the conviction of Bradley Manning, revelations about police undercover operations and attempts to smear the Lawrence family. Gagging orders included in settlements are reported to have cost the NHS £2 million and the BBC a staggering £28 million.

So, what are the changes?

Categories
consultation redundancy

collective consultation – one establishment or many?

Woolworths

When USDAW originally took the liquidators of Woolworths to Court over the failure to consult employees before shutting down all its shops in 2008, workers in smaller branches were excluded from the award of 60 days’ pay for each employee. The reasoning behind this was that the obligation to consult on a collective basis only applies where more than 20 employees are to be made redundant at “one establishment”. The conventional interpretation of those words has been that individual sites, like factories, schools, or shops, which are managed locally, are distinct establishments. However, in USDAW and others v WW Realisation 1 Ltd the Employment Appeal Tribunal has broken with “established” tradition in taking the view that “establishment” in this context refers to a business rather than a particular location at which a business operates.

In his summary His Honour Judge McMullen QC has left in no doubt the firmness of his approach by stating that a purposive construction of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 required the court to delete the words “at one establishment”, thereby allowing protective awards to be made. USDAW has estimated that the value of the awards in this case (which was a combined hearing covering both Wooolworths and Ethel Austin) is about £5 million. With reference to the new rules which have come into force this month it is notable that the appeal very nearly never happened. It was rejected by Mr Justice Langstaff, President of the EAT on initial assessment and only allowed to proceed after a review by His Honour Judge Peter Clark.

Judges are normally very reluctant to interfere with the words contained in a statute, based on the primacy of Parliament. It is no doubt with this in mind that Judge McMullen made the following observation:

Categories
contract terms restrictive covenants

limits to the extent of protection of confidential information

confidential

There are many cases concerning the alleged infringement of employers’ proprietary information, particularly following the termination of an employee’s employment. The classic counterpoint is between the protection of confidential information to which an employee has had access in the course of employment and need to avoid interference in commerce by restraint of trade unless protection is clearly required.

The case of Vestergaard Frandsen A/S and others v Bestnet Europe Ltd and others is significant because it is a decision of the Supreme Court and reveals what might an emerging trend that the balance may be tipping back towards former employees after years of findings very largely in favour of employers.

Vestergaard is a Danish company engaged in the manufacture of insecticidal mosquito nets. It sought to protect its trade secrets against Bestnet, a company set up by two of its former employees and a third party who had also worked for them on a self-employed basis. The three were Mrs Sig, who had worked for them in sales, a chemical engineer, and a biologist, Dr Skovgard, who had been involved in developing the crucial techniques. Mrs Sig was required, pursuant to her contract of employment to:

keep absolutely confidential all information relating to the employment and any knowledge gained in the course of the employment and which inherently should not be disclosed to any third party. The absolute duty of confidentiality also applies after [Mrs Sig] has terminated the employment…

Mr Larsen (the chemical engineer) was subject to contractual terms that prevented him from competing with Vestergaard for 12 months following the termination of his employment and to respect the confidentiality of Vestergaard’s trade secrets. Dr Skovmand (the consultant biologist) had no formal service contract.

In 2004 Mr Larsen and Mrs Sig set up a new business – Intection – in competition with Vestergaard. Mrs Sig and Mr Larsen both resigned from Vestergaard and Dr Skovlund agreed to work with them. They looked for manufacturers of their ‘new’ product, Netprotect, and told prospective manufacturers that any agreement would include confidentiality clauses. Vestergaard brought proceedings in Denmark alleging breach of trade secrets and the day before the hearing Mrs Sig resigned as a director of Intection, which then ceased trading. However Mr Larsen and Mrs Sig moved the business to England through a new company, Bestnet Europe Limited, according to the judge “with the express intention of trying to avoid the consequences of the Danish litigation”. Mrs Sig and Mr Larsen provided their services to Bestnet through a limited company, 3T Europe Limited and Dr Skovmand worked directly for the company.

Unsurprisingly in 2007 Vestergaard commenced proceedings based in misuse of their confidential information.

Categories
human rights unfair dismissal

snooping on employees

Video_Camera

If you are an urban dweller in the UK, according to research carried out for The Times, you should expect to be photographed as many as 300 times a day. Combine that with the numerous profiles maintained by advertisers and others based on your internet browsing behaviour and goodness knows what information held by the NSA and it is reasonable to assume that what limited rights to privacy used to be enjoyed have eroded almost out of existence.

However, the right to private life is enshrined in the European Convention on Human Rights (ECHR) and applies equally to employment law claims as it does in other areas of law. The case of City And County Of Swansea v Gayle led to consideration of how the right to private life sits alongside the right of an employer to supervise its employees. Swansea Council employed an enquiry agent to keep tabs on an employee they suspected of playing squash during his working hours, and dismissed him when presented with evidence that he was to be seen at his local leisure centre instead of at work on Thursday afternoons. He made a number of claims, most of which failed because of his downright dishonesty. However, the Employment Tribunal found that he had been unfairly dismissed, on the basis that his right to privacy had been infringed, but without awarding any actual compensation.

The Employment Tribunal took the view that the employer had taken its investigations too far so that, once unauthorised absence was established, covert surveillance was disproportionate and unjustified. There had been a breach of Article 8 ECHR and the employer had not paid sufficient attention to its obligations under the Data Protection Act.

On appeal to the Employment Appeal Tribunal EAT President Langstaff disagreed with the Employment Tribunal on just about every point made concerning the finding of unfair dismissal: