Welcome to the Canter Levin & Berg Employment Solutions Blog

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…

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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,…

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Religious discrimination in faith schools

“Living in sin” – it was a phrase frequently heard not that many years ago but now, in a mark of changing times, is seldom if ever heard. However, the phrase, in its literal sense, has resurfaced in what some might consider to be a remarkable decision of the Employment Appeal Tribunal (EAT) in the case of Gan Menachem Hendon Limited v Ms Zelda de Groen. Ms de Groen worked from 2012 to 2016 at the Gan Menachem Hendon nursery as a teacher. The nursery is linked with the ultra orthodox Chabad Lubavitch Hasidic movement. When attending a barbecue with her boyfriend, he revealed, in the presence of parents of children who attended the nursery and one of the nursery’s directors, that he and Ms de Groen were cohabiting. There followed a meeting between Ms de Groen, the headteacher Miriam Lieberman and the nursery’s managing director, Dina Toron. In the course of the meeting Ms de Groen was told that her private life was of no concern to the nursery. However, she was asked to confirm that she was no longer living with her boyfriend so that “concerned parents” could be notified accordingly. In other words she was asked to…

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88 Year old’s Employment Tribunal Success

You are never old to have fun, to learn a new skill or to see new places, and Mrs Eileen Jolly has shown that one of those new places could be the inside of an Employment Tribunal after she demonstrated this month that you are never too old to bring a successful age discrimination claim against your employer. Mrs Jolly, born in 1930 was employed in 1991 by the East Berkshire college of Nursing and Midwifery, which later become Royal Berkshire NHS Foundation Trust. Now, aged 88 she has successfully brought a claim against her employer for unfair dismissal as well as discrimination on the grounds of age and disability; and breach of contract. Mrs Jolly was held to be disabled within the meaning of s.6 Equality Act 2010 by reason of her heart condition and arthritis. Despite this, Mrs Jolly had not taken a day off work in the past ten years, and even returned after suffering a cardiac arrest at work in 2004, where she was resuscitated by a surgeon. Mrs Jolly’s complaints stem from her dismissal in January 2017, which the Trust maintains had nothing to do with her age, and rather was based solely on the grounds of culpability for her failure to adequately maintain a database of…

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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…

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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…

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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…

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Can the right to use a substitute be consistent with employee status?

There are around seven million carers in the United Kingdom in 2019 – and that figure is estimated to increase by 3.4 million by 2030. That is a 60% estimated increase in just over ten years’ time. A recent case involving a live-in carer with over three years’ service explores the issue of determining employee status for non-traditional work relationships, and confirms that the right to use a substitute does not always preclude an individual from having employment status. Historically, the law has been clear in confirming that an unfettered right to appoint a substitute is not consistent with employee status. However, Catfeild-Roberts v Phillips & Universal Aunts Limited, an Employment Appeal Tribunal judgment of this month, serves as an example of where this is not always the case.

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Worker Status Confirmed for Uber Drivers

Uber’s appeal against a landmark tribunal ruling in 2016 has been unsuccessful following a judgment handed down in the Court of Appeal yesterday. Uber drivers shall continue to be classified as workers, directly employed by the company, and will be in receipt of all the employment law protections that this affords. The appeal was lodged by Uber to overturn a 2016 Tribunal ruling that the hire-on-demand driver service should treat its drivers as workers not as self-employed as argued by the firm. The original decision was upheld after the judges reached a 2 -1 majority decision – finding in favour of the workers. Uber’s contention was that its drivers should be treated as self-employed, in a similar way to that in which taxi drivers and other private-hire vehicles are. In Britain, the self-employed are not able to access basic employment-law protections such as for example the right to a minimum wage, paid holidays, sick pay and rest breaks. The above benefits carry significant costs, which Uber’s business model has attempted to circumvent by misclassifying drivers as self-employed when in reality, on the facts and as re-confirmed by yesterday’s judgment they are workers. Uber has however introduced a number of benefits…

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“Pale, stale, male” advertising executives claim that they are victims of discrimination

Think of the TV series Mad Men and you will conjure up the image of high-flying testosterone filled salesmen living up to almost every imaginable stereotype of a world that was and to some extent still is. However, the world is definitely changing, no more so than in 2018, with the burgeoning #MeToo movement, and a sense that radical action is needed to achieve real equality in the workplace. However, and stick with me on this one, is there a tipping point beyond which targeting and redress can be taken too far? J Walter Thompson (now generally referred to as JWT) is an enormous global advertising agency and widely thought to be the inspiration for Mad Men. News has emerged over the last few weeks of something of a putsch against what might be regarded, to coin a phrase, as its pale, stale, male employees. As reported in The Times (behind the paywall), the groundwork for what was coming could be detected when JWT’s creative director, Jo Wallace (introducing herself as a gay woman), spoke at a diversity conference in May about her determination to “obliterate” its reputation as and agency full of white, privileged, straight, British men. She pledged to address a “horrible”…

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New workplace reforms announced – take note of the requirements

At long last the Government has announced its response to the Matthew Taylor report on modern working practices, published in July 2017. Mr Taylor is a former aide to Tony Blair and is currently the chief executive of the Royal Society of Arts. He was charged by the previous Conservative government with reviewing employment law practices, with a particular emphasis on the emergence of the “gig economy”, characterised by zero hours contracts. The Government’s response and recommendations in the “Good Work Plan”, a 62 page detailed response which, commendably, lists all 53 recommendations in the Taylor Report and provides itemised responses According to the BBC, significant changes will take effect from Monday 24 December, including an entitlement to a written statement for all workers (not just employees) of terms and conditions from the first day of a person commencing work (currently within two months). However, I am not sure that this is correct since secondary legislation will be required and, given the Government’s busy schedule, I can’t see it being fitted in in the near future. However, it makes sense to prepare for the changes and change procedures, where necessary to do so, as soon as possible. It is no…

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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…

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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…

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What shall we do about NDAs?

Non-disclosure agreements are nothing new. They were initially used in commercial transactions in order to protect parties in negotiations from the disclosure of commercially sensitive information. It remains the case that businesses which are considering mergers or acquisitions will normally start the process by requiring the interested parties to sign an agreement that is intended to ensure that, in the event that discussions do not lead to fruition, details of the parties, such as their business plans, forecasts and any other confidential arrangements, are not at risk of being leaked. This makes perfect sense, not least from the point of view of data protection.Their use has become more widespread and they have moved into the sphere of employment law. It is more or less standard for settlement agreements (on the termination of employment) to include clauses which provide that the parties will keep confidential the terms of settlement and the circumstances giving rise to it. In most cases, this suits both parties. In effect, the employee is agreeing a trade off with the employer that, in return for a pay off which avoids the need for protracted, expensive and uncertain legal proceedings, they will accept an enhanced payment on terms…

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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. …

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Great British Bake Off: When workplace tensions ‘knead’ solving!

I don’t know who won The Great British Bake Off last night.  That’s a weird place to start a Bake Off-themed employment law blog, I know.  Unfortunately, my wife dozed off in the middle of the final last night, so we have to wait to watch the rest of it online tonight! With the popularity of the show ballooning in recent years, more and more workplaces have decided to hold ‘Bake Off’ events to raise morale and/or raise money for charity.  I must admit to getting involved with such an event in my second week at a previous employer. Just to set the background, I’d never properly baked in my life and so, obviously, thought that trying to bake a cake was the right way to win over my new colleagues.  Come the morning of the competition, from the outside at least, the cake looked fantastic.  The problem?  Firstly, it was a rather fragile two-tier cake, so I was forced to drive to work in no higher than fourth gear (to the utter joy of the traffic behind me) and, secondly, because the judge (who no doubt had been studying the critical technique of Paul Hollywood) called my sponge ‘ultimately…

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Red Dead Redemption 2: Is ‘crunching’ actually voluntary overtime?

Later today, the review embargo lifts on the biggest video game since Grand Theft Auto 5.  Even those of you not of a video gaming persuasion have no doubt noticed the constant advertisements online, on the TV and on the side of buses for “Red Dead Redemption”. What is Red Dead Redemption 2?  Well, it’s an adventure game set in the Wild West with the almost mandatory mix of horse chases, gun-slinging and exploring a vast desert-esque landscape. So, why is it such a big deal?  One word: Rockstar.  Rockstar are the equivalent of Apple 10 years ago.  By that, I mean that nearly every product they make receives rave reviews (at least 95% on average) and is known for its brutal, gritty storytelling.  As an example of their attention to detail, in some shape or form, work on this game has been ongoing for eight years with a budget larger than many Hollywood movies! So, surely, eight years is more than enough to make a good game.  Well, yes.  But Rockstar want to make ‘extraordinary’ games not just good or very good ones.  And this, unfortunately for them, has led to a lot of media controversy over supposedly ‘voluntary’…

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Mental Health First Aid in the workplace

October the 10th marked World Mental Health Day, a time to stop and consider how we can best support those around us who may be struggling. Given the amount of time we collectively spend in the workplace each week, particular thought should be given to the importance of mental health support at work.  There is already legislation in place providing the requirement for employers to ensure employees receive immediate attention if they are injured or taken ill at work, but what about helping those suffering with mental illness? If an employee for example has a panic attack or is expressing suicidal thoughts? The concept of ‘Mental Health First Aid’ originated in Australia where Professor Anthony Jorm, a researcher from the University of Melbourne was discussing with his wife, Betty Kitchener, a registered nurse, a recent mental health conference that he had attended. Within the conversation it was remarked that ‘What we really need is first aid for depression’. The idea has spread rapidly from there – developing into an internationally recognised programme comprised of simple steps that can be called upon to help a person in distress.

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Tick, tock: Will employees have longer to bring Employment Tribunal claims in the future?

Employment Tribunal fees. Simple, right? Everyone knows that employees ‘have three months to claim’ and that’s that? Not really. What about the fact that Equal Pay claims (and certain other types of claim) have a six-month time limit? That doesn’t tie into the presumption of simplicity. What about an employee who is dismissed on 2nd January and serves a 3 month notice period, so their last day is 1st April – do you count the three months from notification of dismissal or from their final day at work? How much does a period of Acas Early Conciliation extend any given time limit by? I could go on and on… Overall, what is surely uncontroversial for both employees and employers alike is that simplicity is key. If everyone understands how long an employee has to bring a claim, everyone has the certainty of knowing the period within which to consider conciliation, negotiation and/or the obtaining advice regarding a prospective claim.

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An unwanted kiss is “Strictly” verboten at work

Last Monday I watched the evening’s newspaper front pages coming in on Twitter and nearly every one featured the romantic kiss between celebrity Sean(n) Walsh and professional dancer Katya Jones caught by The Sun on what happened to be his girlfriend’s birthday. It was the lead and second lead news on the BBC News website. Seann’s now ex-girlfriend who had been shown in the audience on Saturday evening’s programme was understandably unimpressed and her public response to their public indiscretion is worth seeing as one of the best put downs I’ve seen for some time. So why am I writing about this on the Employment Solutions blog. Well, there was an interesting case reported this month which cost an employer £24,000 for similar behaviour in work, albeit non-consensual.

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