Tom is an Associate Solicitor, who joined the Employment Team in August 2017.Tom deals with all areas of Employment Law but has extensive experience in disability discrimination and unfair dismissal claims on both sides. His varied experience of acting on both sides of tribunal claims allows him to offer employers detailed and accurate guidance as to likely next steps and effectively analyse disputes.

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?

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).

The phenomenon of the ‘work nemesis’

Some people have one, some don’t. No, it’s not a riddle for a shadow, it’s a phenomenon known as the ‘work nemesis‘.

Some people reading this blog will know exactly what I’m on
about and some won’t have the first idea. 
That’s fairly usual, as the existence of this phenomenon largely depends
on where you work and who you work with. 
Just to clarify, however, a ‘work nemesis’ is an individual who you
simply can’t gel with (or, to just more direct terminology, a people who you
can’t stand and/or dislike and/or are insanely competitive with).

You know in life sometimes you meet someone and, however
hard you try, you just can’t find a way to like them or enjoy spending time
with them?  That’s what we’re on about
here.  It’s the person who blanks you in
the kitchen but immediately strikes up a glowing conversation with the next
person who walks in, the person who (in your eyes) sends horrifically rude
emails or the person who, out of nowhere, takes sole credit for your idea in a
meeting.

Why is this relevant?  Well, naturally, taken too far, relationships between two warring individuals can affect their performance and that of the surrounding team.  So let’s explore a hypothetical scenario and see how it plays out in terms of employment law.

Was Maurizio Sarri smoked like a Kepa during the League Cup Final? – Refusing to obey reasonable management instructions

First, a confession. I’m a big football fan and regularly post legal blogs trying to link football to employment law. Sometimes there is an obvious link (i.e. a football manager being sacked) and sometimes the link is more tenuous (i.e. a previous blog many moons ago in which I tried to link a Luis Suarez blog to an employment law situation!)

However, during the recent League Cup Final (yes, I refuse to refer
to the tournament by the sponsor’s name), there was a golden employment-related
opportunity.  Yes, naturally, I’m talking
about Kepa Arrizabalaga’s refusal to accept his substitution from the game in
the 119th minute. 

In fact, the opportunity was perhaps so obvious that I
woke up on Monday morning to a LinkedIn post wondering how long it would be
until I posted a blog on the topic.  So
here it is.

In fact, the opportunity was perhaps so obvious that I
woke up on Monday morning to a LinkedIn post wondering how long it would be
until I posted a blog on the topic.  So
here it is.

Rather than my usual method of substituting the real-life
situation for a fictional one (i.e. in the Luis Suarez example above, I created
a fictional employee in a factory who bit a colleague), I’ll explore the actual
situation at Chelsea and their options.

Kepa Arrizabalaga (who I’ll call “Kepa” for the rest of
the blog) no doubt has a contract at the club to represent the club to his full
ability.  This would involve training,
keeping fit, playing games he is picked for and, as per all employees,
the implied duty of ‘obeying reasonable management instructions’.  Naturally, it doesn’t take a law degree to
conclude that Kepa’s refusal to obey his manager’s decision to be substituted
from a Cup Final is a likely failure of his Contract of Employment with the
club, both in terms of a complete, literal failure to obey reasonable
management instructions from his Manager and, also, bringing the club into
disrepute and/or failing to represent the club in good faith.

Handling loss of ‘the fear’ within employment (whilst celebrating National Love Your Pet Day)

This is one of those blog posts with unusual beginnings and which, albeit hopefully in a good way, may be read differently by different people. In a nice roundabout way, albeit slightly coincidentally, we’re also celebrating today being ‘Love Your Pet Day’ through the dog-related theme!

Let’s just clarify what ‘the fear’ is before continuing.  Basically, ‘the fear’ is a largely 1990s-based phenomenon centring round a particular episode of FRIENDS in which Rachel loses the desire to continue in their current job but, without her acting to resign, lacks the determination to make
the decision to get another job.  In this way, ‘the fear’ is similar to the fear of failure that drives you to revise hard for exams or the fear of not being fit enough for a half-marathon which pushes you to go for a run even when you don’t feel like it and, obviously, losing ‘the fear’ to apply full efforts within a job can make a noticeable difference.

Now, naturally, all jobs and employers are different. You can work in the same role at two different places and have completely different experiences to the same extent that you can have two different job titles within the same employer and have polar opposite enjoyment levels. However, for the sake of the rest of this blog, let’s take a really general (and vague) view of this tricky situation for employees and employers alike.

How a 3,000km run through New Zealand affects employers – agreeing sabbaticals

Firstly, let’s get it out of the way, I’m a complete bookworm. When I’m not at work (reading documents, emails, cases, you name it), I’m reading my Kindle during my lunch hour and on my commutes to and from work. I’m that guy that regularly averages 2-3 books per week and, frankly, my wife has long accepted that she shares my attention with ‘that Kindle’.

Why is this relevant? Well, recently, I’ve started reading a fascinating book called ‘The Pants of Perspective’ by Anna McNuff. Summarised briefly, this book highlights the talk of a woman who decided she needed a break from her regular, office-based job, so arranged a 6-month sabbatical to run 3,000km from the south to north of New Zealand with a backpack and small tent.

Rather surprisingly, my main double-take whilst reading the opening part of the book wasn’t the idea to run 3,000km across a huge country through sub-zero temperatures into 40’c degree heat but, rather, that she persuaded her employer to grant her a 6 month sabbatical in the first place!

You’d think that an employment law Solicitor would deal with plenty of sabbatical applications and that, out of all the various applications you could make to your employer, a sabbatical wouldn’t be seen as hugely controversial but, alas, no. Why? Well, partly because they are rare and uncommon and, because of this, employers don’t usually know what to do with them.

Is this is the main reason? Well, perhaps not. In reality, sabbaticals used to be common after staff had been at an organisation for a lengthy period of time (i.e. 15, 20 or 25 years) and, nowadays, it is much rarer for staff to hit those periods of service. Partly because of this, it is normally only really in academic roles that staff commonly obtain sabbaticals, albeit sometimes these aim to facilitate research and/or the authoring of articles rather than an ‘escape’ from the workplace.

How would bruising Brexit arguments be resolved in the workplace?

It seems that everything at the moment is about Brexit. Hard Brexit. Soft Brexit. No deal Brexit. Asking the people whether they want Brexit first ‘Brexit’. It all makes a mockery of the initial “Brexit is Brexit” comments from Theresa May at the start of the process. Even the word itself and continuing discussion of it, whatever your view, can become irritating and lead to entrenched beliefs in either ‘getting it done’, ‘getting it sorted’ or ‘stopping it’.

So, what happens when these views lead to difficulties in the workplace?  After all, the traditional dinner party rules of ‘don’t discuss religion or politics’ seem to apply more and more to workplaces.  But Brexit seems to have slipped past this implied rule, particularly when the (potential) event itself could lead to job instability and restructure of certain workplaces.

Let’s take a hypothetical example of how an employer should manage two warring colleagues with opposite views on Brexit who, unfortunately, let it impede work.  Our hypothetical employer, Brilliant Britain Limited, supplies union jack mugs around the world.  In order to do so, they rely heavily on the Production Manager, Tessa, and the Delivery Manager, Jez.  Naturally, the company needs both to do their jobs well – after all, you need goods to deliver and can’t sell goods without delivering them; therefore, the aims of their jobs go hand-in-hand.  From week to week, Tess and Jez need to constantly meet to update each other on production and delivery needs, so either can be amended to suit the other.

However, during these frequent private meetings, Jez and Tessa have clashed repeatedly on the idea of Brexit.  To use the rather awful slogans, Tessa is a ‘Brexiteer’ who wants to leave the EU and Jez is a ‘Remainer’ who thinks the UK would be in a worse state outside the EU under the current Withdrawal Agreement.

In recent weeks, as the political situation has worsened and Parliamentary stalemate has become entrenched, Jez has become an advocate of the People’s Vote (i.e. having a second referendum).  This was the final straw for Tessa who firmly believes that the result of the first referendum should be upheld and remains binding.  The two have effectively fell out, refuse to meet face-to-face and now communicate only by way of tetchy, aggressive emails.

Mourinho sacked: Liverpool FC turn Jose’s Christmas blue

So, the seemingly inevitable has happened.  Jose Mourinho has, after weeks of speculation, been sacked by Manchester United. The writing was largely on the wall, of course, given Jose’s continuing propensity to flick between extreme defensiveness and pettiness during press conferences, his verbal attacks on his players and the side’s consistently poor performances under his stewardship.

However, before the Liverpool FC game, the accepted wisdom was that Jose would see the season out (Louis Van Gaal-style) and then be dismissed at the end of the season. Naturally, given that Manchester United were so overwhelmingly outperformed in the derby game last weekend, it is perhaps not too surprising that the Manchester United board saw the need to take more immediate action.

Obviously, the situation with football manager contracts are usually different to ‘normal’ Contracts of Employment by way of being fixed-term (i.e. for a number of months or years) rather than rolling continuously until notice is given.  In this way, there will be the need for negotiations to end Jose’s Contract but, these things aside, he is immediately removed from his position as Manager.

For the purposes of this blog, let’s treat Jose as being in a ‘normal’ employee situation and see whether he would have fared any better.  So, hypothetically speaking, let’s say that Jose was a Production Manager in a warehouse for a company called Trafford Trailblazers and that the company produced various industrial items and delivered them to customers and let’s now consider what his recent actions would have meant within that more ‘regular’ role.

The Santa Clause – Employment Law Troubles in Lapland

Yes, Christmas is nearly here and, as with most years, Santa Claus is at the centre of shop displays and advertisements.

However, in recent years, Santa has faced a lot of competition, mostly from online retailers.  This is a natural consequence of Santa not having an online presence but, obviously, Santa remains reliant on Christmas spirit, rather than finances, to run his operation.

Unfortunately, this doesn’t prevent Santa from having employment law-related issues in Lapland and, as per usual, he needs a bit of advice to ensure that Christmas isn’t cancelled!  So, let’s snowand help Santa (sorry)!

The first issue this year is, weirdly, related to the General Data Protection Regulation 2018 (GDPR).  You see, both the reindeer and elves are paid in mince pies and, of late, there has been some friction due to the elves getting wind that the reindeer may receive more mince pies than them!  In particular, the elves fear that Rudolph receives double their allowance for the supposed reason of ‘needing them to keep his nose red and bright’!  Santa is very concerned that the elves, who are very technologically savvy (particularly as they build the latest computers and games consoles), may try and access the electronic files containing the reindeer mince pie allocations and, obviously, if that happens, he will have a data protection breach under the GDPR.  What should Santa do?

Was Ryanair’s dismissal of staff a bumpy landing?

It’s fair to say that Ryanair aren’t strangers to controversy.  Whether it be their pricing strategy, public statements or otherwise, they seem to attract publicity for many reasons, whether good or bad.

Given their nature for publicity, it was perhaps predictable that the media (and social media) would seemingly target Ryanair for dismissing six staff members photographed sleeping on the floor of a crewroom in a Spanish airport.  Indeed, on the face of it, it seems bizarre to punish staff who were ‘forced’ to sleep on the floor.

However, as with most situations, there is more to the story than the headline would suggest and, dig a bit deeper, and it seems that Ryanair may actually have had legal grounds for dismissing the six staff members for Gross Misconduct based on the publicised facts.

Now, as a starting point, naturally, you can’t dismiss staff for sleeping on a floor.  That would be ludicrous and completely unfair.  But, in this case, that isn’t why Ryanair dismissed their staff members.

So, why did Ryanair sack them?  What’s the big difference?  Well, put simply, Ryanair believe that the staff members ‘staged’ the photograph and did so with a view to damaging their reputation.  And, whilst people are perhaps inclined to automatically distrust the public statements of big companies in situations like this (and, instead, support the ‘underdog’), it appears that Ryanair has a point.

How can anyone judge this?  Well, put simply, because Ryanair published a CCTV video online showing the staff standing or sitting around and then appearing to agree to the taking of a photograph.  All the staff members then move over and arrange themselves in a close formation on the floor before an individual takes a photograph of them lying on the floor (which they weren’t doing before).