[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]

Dismissal for beard that was “too long” and “too religious” upheld

Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed. A similar case has now surfaced in the Versailles administrative Court of…

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Would reforming the Working Time regulations be a good idea?

Brexit. Brexit. Brexit. Whilst Christmas and New Year provided a welcome rest from Brexit-dominated headlines, there is no doubt that the media train will start in earnest sooner rather than later. Just before Christmas, various newspapers reported that the Working Time Regulations could be a target for the Government following the UK’s departure from the EU. Certain newspapers went further and stated that repealing or substantially amending the Working Time Regulations would be a positive example of removing so-called ‘red tape’ and freeing businesses from the burden of overbearing regulations; some newspapers even trotted out the over-used line of ‘taking back control’. So, to use that awful phrase, should the UK ‘take back control’ and amend the Working Time Regulations?

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Can you discriminate against a ‘non-disabled’ employee on grounds of disability?

 So, here we are: January. Christmas has come and gone and the warm lights of December have been replaced with the wind and rain of January. Sigh. But anyway, how was your Christmas? I hope it was a time of rest and good health. My Christmas? As usual, it was filled with random discussions around the Christmas dinner table including, as ever, conversations about weird and wonderful Employment Law cases. In particular, some of my family members were shocked to hear that a non-disabled employee can suffer disability-related discrimination. One even suggested that I make the subject into a blog when I returned to work and, me being me, I couldn’t resist such an invitation… So what am I talking about? Well, this was the case of Chief Constable of Norfolk v Coffey which concerned a female police officer who applied for a job in another police force. The police officer had a progressive hearing condition with tinnitus which, going forward, would continue to worsen. When originally recruited for her current police force, she failed the meet the usual criteria for police recruitment due to her low level of hearing but, after the police force arranged a practical functionality test,…

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Is Buddy the Elf a good employee?

 It’s nearly here! Christmas is just five days away! The radio stations are playing Last Christmas by Wham on loop, supermarkets are clogging up the TV with advertisements for gooey desserts and it’s getting easier and easier to spot those remaining advert calendar squares! Every family tends to have an annual pre-Christmas tradition and I’m no different. In fact, mine is to visit my younger family members each year and watch Elf with them. For those not in the know, Elf is a Christmas film which came out in 2003 and stars Will Ferrell as a human who is adopted by Santa’s elves and raised as a Christmas Elf at the North Pole. It sounds terrible but, in fact, it’s a cult classic that was named Best Christmas film in a recent survey! Anyway, what better time of the year to explore whether or not Buddy the Elf is a good employee or not? I mean, it is an employment law-related and Christmas-themed topic, so what are we waiting for? Let’s travel through the Candy Cane forest and explore this further! So, to give us some background, Buddy was a baby at an orphanage who snuck into Santa’s sack one…

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Unions continue to claim that Christmas songs harm workers’ health!

 And so this is Christmas… Jingle bells, jingle bells, jingle all the way… Frosty the snowman… Walk into any shop at the moment and a medley of these little Christmas musical chestnuts will most likely be playing. And what could be more wonderful than being reminded of the joy of Christmas whilst elbowing your fellow Christmas shoppers out of the way to look for some suitably dull socks for Uncle Albert? Well, unfortunately, some workers have written to Santa to request the banning of Christmas songs in their workplace! Now, that’s a bit extreme but let’s back up a little bit here. For some years now, various worker unions around the world have protested against Christmas songs being played on loop in shops. Why? Well, at their nicest, unions have (pretty fairly you would imagine) described constantly looped Christmas music as ‘annoying’ and potentially ‘frustrating’ to their workers. However, the most forthright unions have gone so far as to say it ‘risks the mental health’ of workers. So, what’s the truth?  Well, as always, it depends on the circumstances.

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Not so silent night – Christmas parties gone wrong!

Ahhh the office Christmas party. The supposed annual nightmare for the HR Team. Of all the traditional Christmas-related workplace events, the Christmas party sure is the one that surrounded by the most myths. HR Departments sending out pre-Christmas party checklists? Alcohol being banned? The party itself replaced with a simple lunch or, even more severely, not held at all to avoid legal claims or grievances? I mean, just type ‘office Christmas party’ into an online search engine and you’ll see exactly what I mean. In recent years, perhaps not unsurprisingly, some employers have simply stopped having Christmas parties to avoid the hassle and stress of dealing with the ‘troubles’ that emerge. You’d think that, as an Employment Law Solicitor, I’d see that as a good thing? Absolutely not! So, why is that?

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The Santa Clause: Employment Law issues in Lapland

You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa! So, why the low media presence? Where is Santa? On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland). Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

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Important ECJ decision opens up the possibility of valuable retrospective holiday claims

I have written in this blog on many occasions about the importance of getting it right if you are going to treat all or part of your workforce as self-employed, rather than as fully fledged workers or employees. As you may recall, the Pimlico Plumbers case earlier this year ruled in favour of the claimants, finding that they were workers rather than being “fully” self-employed and therefore entitled to holiday pay and other benefits. The issue has been a hot topic throughout 2017 with the Uber and Addison Lee cases for example showing a willingness on the part of the courts to find that there was an employment relationship where, previously, there was assumed not to be. But what basis should be applied for calculating losses if an entitlement to retrospective holiday pay or other benefits is established. The normal cut off point for calculations is six years, since this is the time limit for claims based on breach of contract. However, the entitlement to paid holidays arises under the EU Working Time Directive and this has a statutory footing. This issue was recently considered by the Court of Justice of the European Union (CJEU/ECJ) and judgment was delivered in…

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The end of “fit to work” notes and referrals

Back in March 2010 I reported about the proposed introduction of fit notes, noting that the Government expected savings to the economy of £240 million over 10 years, by aiding the recovery to work of sick workers. Well, it didn’t turn out that way. By July 2010 there were teething problems. Bogus fit notes were widely available on the internet and offered for £9.99 with an introductory “buy one get one free” offer. A further and entirely predictable problem was that employers receiving the fit notes were unable to decipher GPs’ illegible handwriting and therefore overlooked key elements of the process such as, for example, arranging a structured return to work. In 2015 the Engineering Employers Federation (EEF) reported that the scheme wasn’t working. By September 2014 only 5000 GPs from a pool of 40,854 had received training and 43% of employers said that the fit note had not helped employees to return to work. The EEF’s head of health and safety noted that the quality of advice being given by GPs to help people back to work was deteriorating and that, in order to work, the scheme needed greater resources. Late in November 2017 it was quietly announced that…

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Can an employee be disciplined for looking for another job?

You’d think this would be a weird question but I actually get asked this question on a fairly regular basis. Thankfully, I mostly get asked it by employees rather than employers but, in saying that, I can recall two employers (at a past law firm) that asked me this exact question. The answer? Quite simply: it depends. It depends on the circumstances but, theoretically, yes, an employee can be disciplined for job hunting. In practice, however, it would be a rare occasion where an employer could safely do so. To explore the dividing line, let’s look at three examples.

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Is sacking an employee who has miscarried an act of pregnancy-related discrimination?

Earlier in my legal career, I helped advise an individual who was subjected to detrimental treatment by her employer due to time off linked to a miscarriage. Naturally, I won’t identify the individual or the specific facts here but, save to say, their employer’s conduct made a very difficult situation even more stressful. The biggest surprise I experienced during that case was their employer trying to argue that a miscarriage wasn’t pregnancy-related under the Equality Act 2010 because the employee wasn’t pregnant anymore. This is completely incorrect. Why?

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Calls for Government to adopt German model of redundancy protection for pregnant employees

There has been a sizable amount of space afforded to pregnancy-related discrimination in the media this past year. In fact, that’s one of the reasons for this series of pregnancy-related blogs. As such, it is becoming increasingly difficult for employers to escape accusations of pregnancy-related discrimination when it arises. This being said, there are charitable organisations out there that believe that more needs to be done: one of these charities is Maternity Action. During the past week, Maternity Action have released a report (named “Unfair Redundancies”) calling on the Government to strengthen anti-redundancy protection for pregnancy employees. The most eye-catching statistics quoted by the charity include that 1 in every twenty mothers are made redundant during their pregnancy, maternity leave or return to work and that 77% of pregnant women felt discriminated against during their period of pregnancy. Before we continue, let’s just dial down into that first statistic for a moment.

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“Our Line Manager has made discriminatory comments to a pregnant employee?”

“Our Line Manager, Rosemary, has made discriminatory comments about a pregnant member of staff, Thyme. Her comments include stating that Thyme “has baby on the brain” and has a “poor attitude”. Thyme has complained to the HR Director and is demanding action. What can we do and what could we be facing?” Thankfully, the above scenario is hypothetical and not a client email. However, some managers do fall into the trap of making discriminatory comments against pregnant staff members and, in doing so, place their employers at risk. As most employers are aware, pregnant workers obtain advanced protection from detriment under employment law. Contrary to popular belief, this doesn’t entirely prevent genuine concerns about an employee’s conduct and/or performance being formally investigated as long as they have nothing to do with their pregnancy. Unfortunately, in this case, the line manager’s comments appear to be entirely influenced by the Rosemary’s pregnancy and that is a big risk for the employer.

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A bitter feud played out in the High Court

Embed from Getty ImagesOver the last few weeks the High Court has heard some astonishing evidence in the bitter wrongful dismissal claim brought by the former CEO of Signia, a wealth management company, as reported in The Independent. High profile entrepreneur John Caudwell has frequently made the news over the last couple of decades. The founder of mobile phones retailer Phones 4U has presented himself as a forthright, no-nonsense style of businessman. According to the website Caudwell.com (owned, registered and administered by one John D Caudwell and which is currently “down for maintenance”) he is a “successful entrepreneur and philanthropist” who “built an immensely successful mobile telecoms company”. Signia is a wealth management company that was jointly founded by Nathalie Dauriac and six of her Coutts Bank colleagues in 2010. Another co-founder was Mr Caudwell. The business focuses on high end wealth management. All appeared to be well until details emerged of an extraordinary dispute between Ms Dauriac and Mr Caudwell, ostensibly in connection with expenses claims amounting to some £33,000. Ms Dauriac claimed that the expenses investigation was unfair and was, in effect, trumped up to deprive her of her £12 million 49% stake in the business, which was…

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Solving the riddle – Uber, Addison Lee, workers, employees and the self-employed

The media has been awash with stories about ‘worker’ status recently. The most obvious being the recent Employment Tribunal decision that Addison Lee drivers are workers, not self-employed as the private hire taxi firm argued, and the similar decision against Uber a few months ago. The appeal for the Uber case was heard last week in the Employment Appeal Tribunal, albeit the decision will probably be announced in December. So then, you may conclude, all taxi drivers are workers? No. Okay, so most of them are self-employed? No. Well, they must be full employees then? Not really. To get into this, we should acknowledge one thing. The definition of “worker” in the Employment Rights Act 1996 is purposefully fuzzy. No, that’s not legal jargon, but an acknowledgement that the status is meant to catch those people who fall between the more obvious categories of employee and self-employed. Stereotypically-speaking, employees are those who work in an office on a rolling contract for a specified number of hours per week and self-employed individuals work for their own business and are ‘their own boss’. Now, in practice, it isn’t that simple, but let’s use those examples as vague signposts for now because, otherwise,…

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When can social media posts be used as evidence? – A Snoopy character study

Social media. Oh my. We all know the usual story of an employee getting ‘caught out’ by a social media post. But, in reality, social media is a complicated beast and never quite as straightforward as it appears. Can an employer normally rely on social media posts? Probably. Can it always rely on incriminating social media posts? No! Before we get into it fully, it’s important to consider that even defining ‘social media’ is tricky nowadays. Raise your hands if you think you’re pretty au faux with social media websites? Good, good. So you’ve heard of all of the following: Facebook, WhatsApp, Tumblr, LINE, Telegram, Foursquare and Snapfish. I thought not… (Bonus point if you actually did!) Now, we all know the standard tale. An employee posts something anti-employer on their social media or posts something that proves dishonest conduct and the employer then pulls out their social media policy, invites the employee to a Disciplinary hearing and a formal sanction (up to and including dismissal) is given. But, in reality, a lot depends on how that information comes to light.

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Handling Honeymoons

Full disclaimer: I’m off on honeymoon soon. I plan to spend 3 weeks driving around Canada and, in my head at least, spotting many moose and bears and eating my body weight in maple syrup and pancakes! But, fear not Canter Levin & Berg, this article isn’t published as a hint to you but, rather, because I get a lot of questions from employees and employers alike about ‘honeymoon etiquette’! Now, honeymoons are a curious beast. Firstly, because it tends to be one of the few occasions where an employee is allowed more than two consecutive weeks of annual leave and, secondly, because it remains a symbolic event in which a newly married couple are seen to go away and focus on each other which, naturally, doesn’t really interlink with the concept of working.

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Can an employee be dismissed for supporting a certain sports team?

A few weeks ago, I went to the Belgium Grand Prix. Lewis Hamilton and Sebastian Vettel had a race-long battle which, for the most part, revealed a fairly even mix of Ferrari and Mercedes fans in the crowd. Hamilton won and was cheered onto the podium. At the next Grand Prix, in Italy, Hamilton won again. This time he was booed on the podium due to the vast number of Ferrari fans at the event. And, this last weekend, at the Singapore Grand Prix, the Ferrari cars were lambasted for crashing into each other and Hamilton took another (cheered) victory. Why am I telling you this? Well, depending on which race you went to, your status as a Ferrari or Mercedes F1 fan would get a different reception and, weirdly, this can be the same with different workplaces. Football is the obvious starting point here. If I worked in Manchester and declared myself to be a Liverpool FC fan on the first day by walking into the office with a Liverpool FC scarf, I’d be unlikely to make friendly quickly. In comparison, I’d most likely get a warmer reception if I did so in our Canter Levin & Berg office…

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US firm starts microchipping employees – Science fiction or the future?

Yes, you read that correctly. Microchipping employees. And, no, that’s a real headline. A technology company in the USA has been widely reported as microchipping employees in place of their security and identity cards. The first thing to get out of the way here is that they aren’t implanting an actual, square computer chip. Rather, they insert a tiny implant (the same size as a grain of rice) between an employee’s thumb and forefinger with a syringe. Apparently, removing it is akin to taking out a splinter (ouch?) Now, apparently, the ‘younger generation’ are most likely to get onboard with this in the future. Well, I’m in my twenties and I’m not tempted in the slightest. Saying that, I hate needles, so that’s a poor starting point… Looking at the wider picture, we live in a world of fingerprint ID on phones and being able to unlock the latest phone handsets with your own face. So why is an implant so controversial?

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Does the recent European Court of Human Rights decision actually ban employee email monitoring?

You’ve probably seen the recent headlines: ‘Employer breached employee’s human right to privacy by reading workplace emails’, ‘Employers can’t place employee communications under surveillance due to human rights’, et cetera, et cetera. The thing is, broadly speaking and barring one key exception, those headlines are wrong.  Why?  Firstly, because the facts of the case were…

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