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Employment Law Snippet – No. 3 – How magical is Disneyland?

Hello and welcome to our third Employment Law Snippet article. As usual, this article aims to discuss a chosen topic in an interesting, non-jargon filled way and identify how it might affect employees and employers alike. This week’s topic is a wonderful one: Disneyland! Yes, (almost) everyone loves Disneyland!! I put the ‘almost’ in brackets because, otherwise, it guarantees at least one person will respond: “I don’t like Disneyland”…

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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’.

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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…

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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).

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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…

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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…

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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…

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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’. 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…

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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.>

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Christian doctor’s contract ‘terminated’ for refusing to identify transgender patients

A Christian doctor who was training to be a medical assessor for the Department of Work and Pensions (DWP) had his contract terminated due to his refusal to use ‘transgender pronouns’, he has claimed to the Birmingham Employment Tribunal. Dr David Mackereth, who had 26 years’ experience as an NHS doctor, was asked to refer to patients in accordance with their chosen gender identification. However, he responded that he would have a problem with this as he believed that gender was defined by biology and genetics, telling the Tribunal that he would not refer to “any six-foot tall bearded man” as “madam”. He states that he was suspended as a disability claims assessor in June 2018, and his contract subsequently terminated.

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Good news for employers seeking to enforce restrictive covenants

Five years ago I wrote an article for this blog which was entitled “Don’t rely on a court to fix a ‘defective’ restrictive covenant”. In doing so I was merely using a recent case to demonstrate the approach taken by courts to restrictive covenants in employment contracts, viz. that they have to be precise and correct in all respects, failing which they are likely to be struck out in their entirety. That’s why you often see a sub-clause at the end of series of restrictive covenants which states something along the lines that if any covenant or part thereof should be found to be unenforceable, that shall not invalidate the remainder: an attempt to pre-empt the likely outcome if the clauses are subjected to court scrutiny. Restrictive covenants in employment contracts, and particularly those which seek to restrict a former employee from joining a competitor, can be difficult to enforce in practice. That’s because they are a form of restraint of trade which, on the face of it, is contrary to public policy. However, courts have acknowledged over the years that employers have legitimate business interests which they ought to be able to protect, but only to the extent that…

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Labour, anti-semitism and unfair dismissal

A recent case in the London Central Employment Tribunals has touched on some very topical issues concerning the Labour Party, as well as considering whether activities undertaken by an employee outside the workplace can impact negatively on the employment relationship. In Mr S E Keable v London Borough of Hammersmith and Fulham, Mr Stan Keable brought a claim of unfair dismissal against Hammersmith and Fulham Council (HFC) when he was dismissed after a video showing him arguing that the Zionist movement collaborated with the Nazis went viral on Twitter and was picked up by a Newsnight journalist, David Grossman. Mr Keable worked for HFC from 2001 until his dismissal on 30 May 2018 and his employment record was blemish free. He was a political activist and was a member of the Labour Party until he was expelled as a result of his membership of Labour Party Marxists, a non-affiliated organisation. The employer’s terms and conditions included a requirement to “avoid any conduct inside or outside of work which may discredit you and/or the Council”.

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You’re fired? – Trump v UK Ambassador row

Another week, another news story related to Donald Trump albeit, this time, definitely not ‘fake news’. In summary, an unknown individual leaked a diplomatic cable from Sir Kim Darroch, the UK Ambassador to the USA, in which Sir Kim called President Trump “insecure” and “incompetent”. Following this, and without an absence of irony, President Trump then demonstrated that alleged insecurity by announcing that his administration would no longer speak with Sir Kim and, long story cut short, Sir Kim resigned his position. Rather than focus on the political side of things, this story is interesting because it reflects a common fear of many employers, namely an employee leaking highly confidential information to hurt them. In this case, it is very likely that a civil service or staff member leaked the information to hurt Sir Kim’s position (and, in that sense, they were ultimately successful!) Let’s have a quick look at the employment law impact of a similar situation. So, within our hypothetical example, we have Rule Britannia Mugs Ltd, who sell British branded mugs to other countries. Their biggest customer is White House Trading PLC in the USA, who love mugs displaying pictures of red telephone boxes, London buses and…

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Not so Love Island: Workplace romances

Let’s start by instantly getting some employment law myths out of the way. Firstly, can an employer safely ban workplace relationships? No. Secondly, can an employee safely ban relationships between members of the same team? No (except in very limited circumstances). And, finally, can action be taken if a relationship blossoms between two members of a same sex team and other members of that team have religion-based objections? Absolutely not! So, why the theme? Well, at present, the nation seems to be gripped by Love Island which, for the uninitiated, sees strangers gather in a villa in Majorca and attempt relationships with each other (a ‘romantic Big Brother’ if you like). Naturally, as the weeks go by, attempted couplings fail and people start dating ex-partners of other islanders with their former flames in the same vicinity which, as you can imagine, causes many fireworks and causes everyone to go a bit drama llama. In my line of work, you do semi-regularly come across employers who believe they are able to take action against staff simply due to the fact they are within a relationship (whether that be moving teams, locations and/or even considering dismissal). This appears to come from American…

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Regular voluntary overtime should be included in holiday pay

The Court of Appeal has this week ruled that employers must consider any ‘regular’ voluntary overtime when calculating holiday pay, in addition to ‘non-guaranteed’ overtime, upholding the earlier decision of the Employment Appeal Tribunal (EAT). In Flowers and others v East of England Ambulance Service NHS Trust (2017) the Claimants, all employed by the East of England Ambulance Service NHS Trust (in a variety of roles) initially brought their claim to the Bury St Edmunds Employment Tribunal alleging that unlawful deductions had been made from their holiday pay. They stated that the calculation of their holiday pay should account for overtime in two categories – non-guaranteed overtime, and voluntary overtime. The difference between the two in this case is that non-guaranteed overtime occurs when the employee is carrying out a task which must be completed after the end of the shift (for example dealing with an emergency services call for an ambulance), whereas voluntary overtime would be classed as additional shifts which the Claimant can choose to volunteer for (there was no requirement or expectation for them to do so however).

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Japan’s Labour Minister backs Mandatory Heels

Japan’s Health and Labour Minister Takumi Nemoto has caused a stir this week after publicly defending workplace policies that require women to wear high heels to work. The Minister’s comments argued that such requirements were socially accepted as being both ‘necessary and appropriate’ and were made after a petition was filed against the practice. The petition, submitted to the labour ministry on Tuesday, raises health and safety concerns regarding the requirement, labelling it sexist and outdated. The minister unfortunately did not sympathise with the plight – equating high heels with a level of femininity which is considered to be a social norm within Japanese culture. Dubbed the ‘#kutoo’ movement, (stemming from a combination of the Japanese word for shoes ‘kutsu’, ‘kutsuu’ meaning pain, and also a nod to the popularised global ‘#metoo’ movement against sexual abuse), the petition continues to gain traction on the online platform Change.org which at the time of writing had received nearly 30,0000 signatures.

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

Another week, another *ahem* ‘naïve’ company running an event that actively stereotypes women…  Whilst it can seem that regular stories about women being stereotyped in the workplace are almost the status quo, it is worth noting that the fact they are viewed as newsworthy (when, arguably, twenty years ago they wouldn’t be) is a positive in today’s modern society in terms of helping prevent future discrimination. So, what’s happened this time? Well, a Russian company recently announced the holding of a “femininity marathon” during this month.  So far, so naive… However, initiatives within the so-called femininity marathon include: Cash bonuses for wearing a dress or skirt “no longer than 5 centimetres from the knee” upon them sending a picture of them wearing the relevant clothing to the company; and A competition to see who is quickest at making dumplings!

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Nurse dismissed for ‘preaching’ to patients loses second appeal

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

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

Dealing with sickness absence is a persistent problem for many employers, particularly when dealing with the apparent dichotomy between potentially fair dismissal on the ground of extended sickness absence and discrimination based on disability. The issue reared its head once again in the recent case of Muller v London Ambulance Service NHS Trust. Mr Muller, a paramedic, injured himself when falling out the back of an ambulance while on duty in March 2016. He never returned to work and was dismissed 11 months later. His main injury was to his right shoulder which did not heal during this time. By the time of his dismissal he had not had the required surgery, let alone sufficient time to recuperate thereafter. A contributory factor to the delay was that a tear in the cartilage around the shoulder joint was not diagnosed until November or December 2016. A steroid injection in January made little difference and an arthroscopy was scheduled for 14 March, just over two weeks after he was dismissed. As well as claiming that his dismissal was premature, Mr Muller said that the Trust had a duty to make reasonable adjustments to accommodate his disability, e.g. by providing him with office…

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Barista rights: Starbucks or Starbucked?

Right, to start, a confession: I’m a coffee fanatic. And, no, that doesn’t mean that I purely order espresso shots and seek to then identify the origin of the exact coffee bean used when drinking it; rather, I regularly seek out coffee as a near necessary small luxury in life. Now, that doesn’t mean I literally can’t function without it. I managed to give it up for 40 days over Lent a few years ago, albeit my wife has practically banned me from doing so again (the first week of work absent coffee wasn’t the most fun experience!) But, overall, in a stressful day, my instinct is to reach for a nice cup of java (whilst, if you’re interested, is the name of an island they used to obtain coffee beans from (as was the island of Mocha (seriously!)) Why the sudden fascination in coffee? Well, I’ve recently been reading an intriguing book called ‘Starbucked’ by Taylor Clark. And, no, it isn’t a demolition job of Starbucks (nor a ‘fanbook’ financed by the company); rather, it is a neutral and balanced look at the growth of Starbucks and also explores their employment practices and treatment of staff. As many are…

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