[vc_section][vc_row][vc_column][vc_custom_heading text=”Welcome to the Canter Levin & Berg Employment Solutions Blog” font_container=”tag:h2|font_size:32|text_align:left|color:%23005695|line_height:1″ google_fonts=”font_family:Roboto%3A100%2C100italic%2C300%2C300italic%2Cregular%2Citalic%2C500%2C500italic%2C700%2C700italic%2C900%2C900italic|font_style:300%20light%20regular%3A300%3Anormal” css=”.vc_custom_1569268102137{padding-top: 20px !important;padding-right: 10px !important;padding-bottom: 20px !important;padding-left: 10px !important;background-color: #eeeeee !important;}”][/vc_column][/vc_row][vc_row][vc_column]

Is it fair to dismiss for action which falls short of gross misconduct?

It is well known that dismissal can result from a single matter which is usually found to amount to gross misconduct, or as the result of more than one event, with the prior matters resulting in written warnings and/or a final written warning. Indeed, most disciplinary procedures outline this process and generally include examples of what will normally be treated as gross misconduct. However, in Quintiles Commercial UK v Barongo the question for the Employment Appeal Tribunal (EAT) was whether it was fair for Quintiles to dismiss Mr Barongo for conduct which was initially classified as gross misconduct but subsequently downgraded to serious misconduct. Quintiles supplies staff for pharmaceutical companies. Mr Barongo started working for them in October 2012 and was latterly engaged to sell drugs for Astra Zeneca. On 5 January 2016 he was dismissed on notice on two grounds. First, he had failed complete Astra Zeneca’s compliance training course by the deadline of 3 November 2015 and, second, failing to attend their compulsory training course on 19 November 2015. Mr Barongo did not deny the allegations and he also accepted that they amounted to misconduct on his part. However, he contended that he had been dealing with other…

Read more

Dressing for work

The government has released some useful guidance to assist employers in getting to grips with worker’s rights and the law surrounding dress codes in the workplace. The guidance acknowledges that employers should have the power to draft and enforce a workplace dress code policy but must ensure that it is not discriminatory in nature. There is a lot of misunderstanding and confusion surrounding such policies and it can be difficult for employers to get the balance right. Can a policy require a male employee to wear a tie? A female employee a skirt? What should your stance be on manicured nails? While the guidance does not change the law in this area, it does provide some welcomed clarity (although it is not without its critics). As you may recall, the ‘high heel scandal’ brought dress code discussions to the media forefront back in 2016 after a temp worker, Nicola Thorp was sent home on the first day of her assignment at a large London firm for wearing flat shoes. It was stated within the employment agency’s Grooming Policy that female staff were required to wear smart shoes with a heel height of between two and four inches. Nicola was advised…

Read more

Shocking behaviour revealed at Marine Scotland

A whistleblower who complained of a racist and misogynistic workplace culture at a Scottish Government controlled Marine Scotland office has claimed she was restrained in a chair and gagged by two male co-workers in response to her speaking out. DeeAnn Fitzpatrick is a civil servant and Canadian national employed as a fisheries officer at Marine Scotland’s office in Scrabster on the Caithness coast, Scotland. Fitzpatrick claims that she was subjected to bullying, harassment and a sustained pattern of racist and misogynistic behaviour over a period of nearly ten years whilst working at the office. Her claims are currently being considered at an employment tribunal in Aberdeen. Allegations include that she was mocked for having a miscarriage, advised by co-workers that they didn’t want to work with a ‘foreign woman’ and subjected to racist language. Fitzpatrick has been unable to work and has been signed off on sick leave since November 2016, after also experiencing a family bereavement during this time. BBC Scotland have obtained and released a photograph of the described event earlier this month, taken by one of the men allegedly responsible. It pictures Ms Fitzpatrick gagged and secured in the chair with packaging tape. Fitzpatrick claims that she…

Read more

How to deal with convictions for sexual offences committed by a person associated with the employee

Judgments of the Supreme Court concerning employment law issues are fairly infrequent and usually worthy of attention. That is certainly so in the recent case of Reilly v Sandwell Metropolitan Borough Council which concerned an individual convicted of the surprisingly common offence of downloading indecent images of children. Ms Reilly was the deputy head teacher of a primary school. She was in a close but not sexual relationship with a Mr Selwood and they did not live together. In 2003 they bought a property in joint names as an investment and Mr Selwood lived there, although he did not make any payments to Ms Reilly. Ms Reilly did not live there but she occasionally stayed overnight, including on 24 February 2009 when, the following morning, she awoke to the arrival of the police who searched the property and arrested Mr Selwood on suspicion of having downloaded indecent images of children. In September Ms Reilly was promoted to the post of head teacher at the school and in February 2010 Mr Selwood was convicted of making indecent images of children by downloading. On a scale of 1-5, the images ranged from level 1 to level 4. He was sentenced to a…

Read more

Dealing with “sporting sickies”!

Merger or Messi? Filing or Fellaini? With the festivities of the world cup to hit us next month perhaps now is as good a time as any to consider whether a workplace policy for major sporting events is necessary and what points should be considered. Many employers may be concerned in the lead up to such a sporting event that instances of absenteeism will increase as staff take ‘sickies’ to watch the match or recover from the one the night before. Ahead of the 2016 Euros a survey completed by Robert Half found that 73% of UK Human Resources Directors believed employees are likely to skip a day of work following or during a tournament match while 21% of respondents considered it to be ‘very likely’.  There is currently no legal requirement for employers to give employees time off for such events but could a flexible approach yield potential benefits with minimal disruption to the business? In an audit of 1000 Managers carried out by the Institute of Leadership and Management following the London Olympics in 2012, 48% of those interviewed confirmed increased morale within the workplace. Amongst those interviewed, 41% allowed staff to watch the Olympics at the office.…

Read more

Addressing the gender pay gap: is it time to consider “use it or lose it” paternity leave?

As we know, the 4th of April 2018 marked the deadline for all companies in Great Britain (but not Northern Ireland) with more than 250 employees to report their gender pay gap to the Government Equalities Office. As detailed in our blog last month, the returned data shows that nearly 80% of those who have responded have reported higher levels of pay to men than women. So now that the data has been collected and will continue to be so annually from here on in, we should consider further what employers can do to reduce or eliminate their gender pay gap. Among the suggestions raised are target setting, salary transparency or increased training opportunities for women. One of the key reasons however why women’s pay progression lags behind that of their male colleagues is maternity leave and time taken off for childcare. Could restoring the balance between men and women in relation to paid parental leave have the dual effect of restoring the gender pay balance? A recent enquiry launched by the Women and Equalities Committee into Fathers and the Workplace indicates that it could. The enquiry has been prompted by research findings contained in the 2017 Modern Family Index…

Read more

New GDPR compliant data protection

As I mentioned to readers of our monthly newsletter, like many organisations, we have been preparing for the implementation of the General Data Protection Regulation on 25 May 2018. As you may know, there is no transition period so the new rules concerning data protection will be in full force and effect from day one. At Canter Levin & Berg we introduced our new data protection policy last week and we have recently published our template GDPR compliant data protection policy, with associated documents and guidance notes, in the subscription section of this website. The policy is intended to be straightforward and easy for all readers and users to understand. As usual we have accompanied the policy with detailed background and guidance notes which are intended to demystify the compliance process for SMEs. We have explained the background to GDPR, provided a commentary on what the Information Commissioner says about preparing for GDPR and summarised the main areas that need to be considered. We have provided a clause by clause summary of the policy so that our users have all that they need to adapt the policy for implementation in their organisations. Of course, subscribers who have access to our…

Read more

The stakes are high when the wrongful dismissal claimant is the former boss of The AA

In June 2014, when The AA was taken public in what was described as a management buy-in, chartered accountant Bob McKenzie was appointed as its chief executive on a base salary of £750,000. On 1 August 2017 he was sacked for gross misconduct after he was reported to have to have got into a hotel bar fight with one of the Company’s senior managers. He was reported to have engaged in “a sustained and violent attack” on the manager which was captured on the hotel’s CCTV. Days after the incident he was removed from the board. As a result of being dismissed for gross misconduct, thereby disqualifying himself from any further contractual benefits, he stood to lose what was estimated at the time to be about £100m in share awards. Following his dismissal Mr McKenzie admitted himself to hospital suffering from work related stress. He was known as strong boardroom performer, driven by financial returns. In an interview with The Sunday Telegraph in 2016 he said of his employment prior to joining The AA: “Work hard and play hard: you were given targets and you met them or else you parted company.” Shortly following his appointment, chief executive Chris Jansen…

Read more

Gender Pay Gap Reporting: Myth-busting

I write further to the deadline for Gender Pay Gap Reporting expiring last week. Much has been made in the media of that deadline being the day by which qualifying employers (i.e. those with 250 or more employees) have to submit the percentage difference in pay between their male and female staff. The initial results? Nearly 80% of those employers who have responded (some haven’t) have reported higher pay levels to men than women. So, that means that those employers are discriminating against women, right? Well, not necessarily. But the figures are there in black and white – surely, every employer with a higher pay towards males is inherently sexist? Not really. The reality is that the figures are suggestive only and there are many legitimate reasons why pay may be skewed either way, whether towards males or females. Let’s take a look and bust some myths about the Gender Pay Gap Reporting.

Read more

DPD relaxes onerous terms imposed on its delivery drivers

A year ago I wrote about the onerous terms imposed on DPD couriers, which had come to the attention of the Work and Pensions Select Committee: “Meanwhile, it has emerged that DPD, which deliver parcels for Marks & Spencer, John Lewis and River Island, fines their couriers £150 per day if they cannot find cover when they are ill. This has resulted in drivers being forced to work when they are sick. The fine, which is described as “liquidated damages”, means that couriers who earn on average £200 a day, lose £350 if they cannot work through illness and are unable to find a substitute.” Chair of the Committee (and my MP) Frank Field, commented at the time: “The gig economy is producing wave after wave of evidence on the grim reality of life at the bottom of Britain’s labour market…A group of companies now controls the working lives of an unknown number of people, and yet evades its own responsibilities as employers and taxpayers by labelling those people as self-employed… This move [by DPD] makes the rest of the gig economy look as though it operates in the Garden of Eden.” In February 2018 The Guardian reported the sad…

Read more

Do the recent Equality & Human Rights Commission proposals to ‘combat’ sexual harassment make sense?

The Equality & Human Rights Commission (“EHRC”) is a fantastic organisation that seeks to protect employees and workers from discrimination at work. I regularly read their published Reports and publications because they interest me and keep me informed of potential future developments, which is handy given my sizable discrimination-related workload for employees and employers alike. The EHRC have recently published their most recent Report: “Turning the tables: Ending sexual harassment at work”. The Report raises well-known concerns about the lack of support provided to, and the pressure and detriment placed upon, individuals who identify sexual harassment issues in the workplace. As usual, the Report ends with some law reform-based recommendations for the Government to consider to improve matters. And, rather unusually with an EHRC Report, whilst I completely agree with the motive behind the recommendations, I can’t much see how the majority of the recommendations themselves will make much positive difference. For me, it appears to be a case of ‘good intent, bad execution’. But, rather than simply take my word for it, let’s explore some of the recommendations and have a proper look.

Read more

Coming back for seconds: Waiter appeals dismissal for ‘rude, aggressive’ behaviour due to ‘being French’

As an Employment Solicitor, I deal with multiple discrimination claims. Personally, I find the majority of discrimination claims fascinating. Why? Because they are so varied and can be brought due to behaviour linked (in almost any way) to an individual’s gender, age, belief or religion, race, sexual orientation, disability, marriage or civil partnership, pregnancy or nationality. As you’ll have no doubt spotted from the unusual title, it’s that last one, nationality, which I want to explore today. Before we get into the legal angle, let’s quickly look at the facts. A waiter is reported to have taken action against a restaurant in Vancouver for his dismissal last year. His former employer stated that his dismissal was due to his “aggressive tone and nature” with colleagues further to previous verbal warnings as to his “combative and aggressive” behaviour towards fellow staff. The waiter, Mr Guillaume Rey, has argued that his dismissal (and the reasoning behind it) is discriminatory because French culture “tends to be more direct and expressive”. Yes, that’s right, his core argument is that his confrontational behaviour should have been overlooked and/or condoned simply because he was French.

Read more

More unrest at the BBC – now it’s about personal service contracts and a word of warning about the ostensibly self-employed

Perhaps the most surprising aspect of “employment” provided through personal service companies is that such arrangements have lasted as long as they have. When the BBC first published the salaries of its top presenters last year there were some notable omissions. For example David Dimbleby didn’t appear on the list. Why? Because he is paid by the BBC through a separate production company. Similar arrangements are in place for Lord Alan Sugar, John Torode and Gregg Wallace. For years the BBC has encouraged and, some have argued, mandated some of their key talent to be paid through a personal service company. The idea is that the company provides the services of, say, the presenter to the BBC and the BBC therefore pays the company for the services provided. The upshot is that the presenter benefits from the lower tax regime for limited companies (currently 20%) rather than the higher personal tax rates of 40% over £45,000 and 45% over £150,000. Unsurprisingly, HMRC have been chipping away at such arrangements for a number of years and, as far as the BBC is concerned, matters recently came to a head with a victory in the High Court against BBC Look North presenter…

Read more

Ministry of Justice confirm huge increase in Employment Tribunal claims

I’ll start with the big headline: Employment Tribunal claims (brought by individual Claimants) increased by 90% in the period between October to December 2017 (in comparison with the same period in 2016). To cut a long story short, the recent abolition of Employment Tribunal fees has led to Tribunal claims nearly doubling. A small disclaimer is that the above statistic is currently a provisional figure, however, in reality, that figure tallies with my own expectations and experience over the past 12 months. These statistics are slightly ironic given that, before the Supreme Court found Employment Tribunal fees to be unlawful, one of the main reasons the lower courts refused to find Employment Tribunal fees unlawful because there was ‘no evidence’ of the fees preventing individuals from accessing justice.

Read more

Is the National Living Wage causing problems?

I think that most employers would take the view that the principle that employees should be paid a fair wage for their work is one that should be supported. However, sometimes a one size fits all approach can throw up anomalies. I should be clear: I’m not talking about those who exploit people to work excessively long hours for very poor pay (as low as £2.00 per hour), often in plainly unacceptable working conditions. I’ve written in this blog about people who have been kept effectively as slaves in the most appalling circumstances and these employers should be rooted out and dealt with severely, where appropriate in the criminal courts. It is worth remembering that, when introduced on 1 April 1999, the adult National Minimum Wage was £3.60 per hour. Since then, it increased steadily for a number of years (around or a little ahead of inflation) but the big jump came on 1 April 2016 when it was hiked from £6.70 to £7.20 as part of the merger and rebrand as the National Living Wage. Subsequent increases (including those coming into effect on 1 April 2018) are here. [table id=1 /] Employees who are paid below the minimum wage…

Read more

Frozen out: Can it be too cold to work?

Spring is here. Or is that winter? All over the country, people are facing difficulty travelling on account of snow and ice and, here on Merseyside, things are no different. In fact, this is quickly turning into that time of year when I receive multiple text messages from friends, some more jokey than others, asking if there is a minimum temperature at which they are required to work because their workplace is so cold or, as my favourite text states: ‘so cold as to give a polar bear frostbite!’ Now, poorly polar bears aside, there isn’t a set temperature at which staff can suddenly declare it to be too cold and go home without recourse. Even if there was, those staff would be highly unlikely to be paid during their absence from office. Instead, businesses rely on guidance from the Health and Safety Executive (HSE). The HSE recommeds that office-based workers be exposed to temperatures no lower than 16C and any workers whose work requires ‘physical effort’ (i.e. being on your feet and moving arond) are not exposed to temperatures below 13C. However, be very aware of that word above: ‘guidance’.

Read more

Theft in the workplace: Actionable or a load of hot air?

This afternoon, I returned to my chilly office to discover that my desk heater was absent. After a quick root round, it became clear that someone had borrowed it for a meeting room yesterday and forgot to return it. The mystery was solved and I’m back to being blasted with lovely, soothing warm air once again! However, the experience did serve as a reminder of the number of times over the years when employers have rang to obtain advice about thefts in the workplace. And, no, I don’t mean borrowing items and forgetting to return them, as in the much tamer world of Canter Levin and Berg but, rather, intending to steal items. Obviously, this can occur either against the Company’s property or between colleagues. So, how can an employer turn up the heat in pursuing a potential thief?

Read more

A family (business) at war

If, like me, you have been enjoying Kay Mellor’s comedy drama Girlfriends on ITV, you may have cringed at some of the artistic licence deployed when dealing with aspects of the age discrimination claim being brought by Miranda Richardson’s character against her boss (and lover), played by Anthony Head. However, it has neatly highlighted the particular difficulties that can arise when workplace disputes get a bit too close to home. A real life family dispute has been playing out in the Manchester Employment Tribunal and, more recently, in the Employment Appeal Tribunal. There is a major clue in the name of the case: Mrs J Feltham, B Feltham (Maintenance) Limited and Ms H Feltham v Feltham Management Limited, Mr D Feltham and Mr M Feltham. Feltham Management is a long established family business, specialising in property management, particularly in respect of student lettings. Jane Feltham is the claimant. She has three brothers, David, Martin and Stephen, all of whom were respondents in the Employment Tribunal claim. They all worked for the family business which was founded by their father. Hazel, the adult child of David, worked for the company as a clerical assistant and Jane’s husband was Mr Eckersall, a…

Read more

Compensation for post-termination losses, even though lawfully expelled from partnership

The status of professional partners in the context of employment law has exercised the courts on many occasions. Are they employees, workers, or employers or, in some cases, none of the above. Is there a difference between self-employed salaried partners and employed salaried partners? From an employment perspective, probably not. Of course, the employment rights available vary from none to most, depending on which type of employment status (if any) applies. The same issue arises in the case of members of an LLP (or limited liability partnership), who are often referred to as partners. One such member was a solicitor who worked for Wilsons Solicitors LLP and whose claim was recently considered by the Court of Appeal. Mr Wilson became a member of the LLP in May 2008. He held the post of managing partner, as well as being the firm’s COLP (Compliance Officer for Legal Practice) and COFA (Compliance Officer for Finance and Administration). In July 2014 the board of the LLP received a complaint of bullying made against the senior partner, Mr Nisbet. Mr Wilson investigated the complaint, reported his findings to the board and produced a report on 7 October 2014. On 21 October the board was…

Read more

Protecting employees’ “stories” – Avoiding fines of up to €20m under the incoming General Data Protection Regulations

Last night, I visited a local community café for a fascinating talk about ‘story’. The gist of the evening centred around how humans think and dream in script form rather than in bullet points. A case in point? You dream in vivid, moving events, not static images. Every part of our lives involves in story. Music is the story of events in lyrical form, whilst books and films introduce characters with backstories which shape their character going forwards. An example? In the Harry Potter books, Harry and Voldemort have the same backstory (magical orphans with horrible childhoods who are ‘saved’ by Hogwarts School) but both deal with that in different ways – i.e. one becomes good and one becomes evil. Everybody has an individual story, whether in their social lives or during their employment. So, why am I going on about ‘story’?

Read more
[/vc_column][/vc_row][/vc_section]