Like a pack of cards, the fall out from the phone hacking scandal continues to gather pace and threatens to engulf the UK. Rebekah Brooks arrested and out on bail, Commissioner Sir Paul Stephenson and Assistant Commissioner John Yates resign, Murdoch senior and junior to answer before the Culture, Media and Sports Select Committee. What next? Is No.10 under threat by employing Andy Coulson as Communications Chief, who resigned earlier this year? The very core of society shaken as politicians, police and journalists are put under the spotlight.

This innate thirst for information and knowledge is all encompassing. This need to be aware of what is happening around you, whether in business or in pursuit of a newsworthy story, has always been central to the modern world. People want to know what is going on: think Facebook, twitter.

So how far is too far? Employers will face this problem when dealing with employees and monitoring their use of the internet and emails during working hours. To protect legitimate business interests, how far can employers really go? For example, can they hack into an employees private email account such as Gmail, Yahoo? Can an employer record an employee’s telephone conversation?

Certain disciplines require telephone calls to be recorded, for instance if dealing in financial services, but the requirement is to inform members of the public and staff that their calls are being recorded. Employers should have a clear computer, internet, social networking, and email policy which sets out what is being monitored and what the consequences of an abuse of that policy will be for the employees. Will employers too face criminal charges for intercepting employees’ personal emails accounts in the pursuit of their civil case against an employee who has stolen key confidential information (which the employer is entitled to protect) and misused that information for their benefit. There have been cases dealing with this very issue, as to whether employers can use an employee’s personal email account to show the court that the employee has been abusing their duties of confidence and fidelity.

I would be interested in your views on the fine line of having access to information where there is a purpose to this information, against the threat to someone’s human rights.

Only time will tell whether this scandal will engulf the Government; I wonder if this is the UK’s Watergate?

Both the existing statutory process for an employee to request a flexible working pattern and the now defunct statutory right to request working beyond a default retirement age involve a highly prescriptive procedure that the employee must follow in order to trigger their statutory rights. Although the default retirement age is to be abolished from 1 October 2011, tribunals are still dealing with claims arising from notices of intended retirement issued by employers before 5 April 2011. In one such case, Bailey v R&R Plant, The Employment Appeal Tribunal recently said that it was not enough for an employer to merely tell an employee that they were entitled to make a request to continue working beyond the employer’s proposed retirement date. In order to comply with its statutory obligations, the business had to notify the employee of the “essential conditions” that the employee had to comply with during the statutory process, ie the business had to tell the employee that in order to trigger the business’ obligation to consider his request to work beyond retirement age, the request had to be in writing and state that it was being made under paragraph 5 of Schedule 6 to the Employment Equality Age Regulations 2006 (now repealed).

The statutory flexible working request procedure is, if anything, more onerous on the employee than the statutory right to request working beyond normal retirement age was. In order to trigger a business’ obligation to conisder a flexible working request, the employee’s application must: 

• set out the work pattern the employee is requesting;
• specify their entitlement to make the application in accordance with the Employment Act 2002;
• specify any effect that they anticipate the proposed work pattern would have on the employer’s business; and
• specify how such effects might be accommodated or addressed in practice.

In the past, tribunals have held that they have no jurisdiction to hear a claim for breach of the flexible working procedure because the employee’s flexible working request did not meet these requirements. Given that background, I would be interested to see whether a tribunal would now take the view that a business is obliged to notify its employee of these requirements. The difference, of course, is that the retirement process is triggered by an employer’s notice to the employee of an intended date of requirement, whereas in the flexible working process, the first step is the employee’s application. I think it is more of a stretch to imply an obligation for an employer to notify employees of deficiencies in their flexible working application than to tell them what they have to do if they want to request working beyond a default retirement age but there are some parallels.

Even if a tribunal would not be willing to imply an obligation that a business must effectively guide its employees through a proper flexible working application, there may be good reasons for businesses to do so anyway. Irrespective of any rights arising out of the flexible working procedure, in some circumstances employees who are refused the right to work flexibly may be able to pursue claims for sex discrimination, or resign and claim constructive dismissal. The more thoroughly such requests are dealt with, the better a position the employer will be in to defend themselves against such claims.

LJ Burnton also held that the legal test for dismissal on discriminatory grounds was applied correctly, and that he believed the Tribunal had found that Mr Power was dismissed on the grounds of his conduct, which included a disruptive attitude in the course of role play exercises, as well as expressing his beliefs in an unacceptable way (distributing posters and CD ROMs,) and not because of his beliefs.

Please click here to read the article. You may need to register to read all of it.

If you would like to discuss how these recent changes will affect your business, please contact me at krishna.santra@mablaw.com.

• achieve more early resolution of workplace disputes so that parties can resolve their own problems, in a way that is fair and equitable for both sides, without having to go to an employment tribunal
• ensure that, where parties do need to come to an employment tribunal, the process is as swift, user-friendly and effective as possible; and
• help businesses and social enterprises feel more confident about hiring people.

The actual proposals set out in the consultation document cover a wide range of issues, including (to name a few):

• the extension of early mediation and conciliation in the workplace,
• new shortened forms to be submitted to ACAS,
• fixed ACAS conciliation periods before claims proceed in the tribunal,
• extended powers to strike out vexatious claims so that an employment judge can strike out claims without a hearing or at a Case Management Discussion; and
• increasing the cap on costs that a tribunal may award from £10,000 to £20,000.

Attracting most of the headlines at the moment, however, are the proposals to increase the time limit for unfair dismissal claims from one to two years continuous service and to introduce fees for bringing a tribunal claim. The battle lines are appearing already as shown by comments reported today by the BBC from the CBI and TUC. John Cridland, the CBI’s Director-General designate said, “For far too long, the tribunals system has put the interests of lawyers above those of employers and employees… Extending the qualifying period for unfair dismissal is a positive move that will give employers, especially smaller ones, the flexibility and confidence they need to hire.” TUC leader, Brendan Barber commented, “While employer groups complain that tribunals are costing them too much, they have lost sight of the fact that if firms treated their staff fairly, few would ever find themselves taken to court.”

In my view, both of these comments overlook some rather crucial points. Extending the unfair dismissal qualifying period is something of a blunt instrument. It will benefit employers by cutting out a group of employees who might otherwise have unfair dismissal claims but will make no distinction between a claim that is entirely vexatious and one that has real merit. However, to suggest that if employers treated staff fairly they would never face claims assumes that no claim is brought unless the employee has been treated unfairly, which is simply not the case (just to give you a rough idea, from 1 April 2009 to 31 March 2010, 52% of unfair dismissal cases that proceeded to a hearing were unsuccessful).

We should also remember that these proposals only affect “standard” unfair dismissal claims. There would still be no qualifying period for an unfair dismissal claim based, for instance, on alleged whistleblowing. Nor is there any qualifying period for a discrimination claim.

Based on the experiences of the civil courts in the late 1990s, I also wonder whether introducing a fee for bringing claims in the tribunal will have a significant impact in the numbers of claims brought. In the High Court and county courts, fees shot up in the late ’90s in an effort to make the courts self-funding. It was widely predicted that this would deter litigants from bringing claims but this has not been borne out. If the fees do have an impact, I suspect they are more likely to deter the claimants who are least able to afford a claim, rather than those whose prospects of success are weaker.

The consultation closes on 20 April 2011. I’m sure we will be hearing a lot more about these proposals over the next few months.

This was my third interview on Morning:MK, having previously spoken to them about absenteeism during the last Football World Cup and the fact that there is no statutory right to paid time off during next year’s Royal Wedding. This week they let me pick the next song to be played in their daily “guilty pleasures” slot. I had to pick my guilty pleasure from the 1993 chart and went for “Two Princes” by The Spin Doctors.

The past 40 years have seen the introduction of statutes and regulations addressing discrimination in the fields of sex and race, disability, sexual orientation, religion or belief and age. There has also grown up around this legislation a complex and multi-faceted body of case law. In February 2005, the Labour Government announced a Discrimination Law Review to consider the opportunities for a clearer and more streamlined discrimination law framework. In June 2007 the Government published proposals to  introduce a single Equality Act with the (rather ambitious) objectives of modernising, harmonising and simplifying the law on discrimination and making it more effective. The Equality Act 2010 received Royal Assent on 8 April 2010 after a somewhat hasty push to get the Act onto the statute books before the end of the last Parliament. The current Coalition Government has already indicated that it intends to take a different approach to the implementation of the Act than its predecessor.

The Act contains 218 sections and 28 Schedules and is accompanied by 216 pages of explanatory notes. In this article, I will try to give you an overview of the Act’s impact and key changes in the employment field alone (although the Act does affect other areas of public life).

PROTECTED CHARACTERISTICS

The Equality Act sets out a total of 9 fields where discrimination is prohibited, which it calls “Protected Characteristics”. These are:

• Sex;
• Race;
• Age;
• Sexual Orientation;
• Disability;
• Religion;
• Pregnancy and/or maternity leave;
• Marital and/or civil partnership; and
• Gender reassignment.

Broadly speaking, the Act sets out the same approach to discrimination in respect of all of the Protected Characteristics. I mention a couple of exceptions towards the end of this article.

 TYPES OF DISCRIMINATION

The types of discrimination that the Act prohibits generally mirror previous legislation but with a more harmonised approach to their definitions. These are:

direct discrimination – treating an employee less favourably because of a protected characteristic;

indirect discrimination -  applying to an employee a provision, criterion or practice (“PCP”) which puts both that employee and other employees who have that protected characteristic at a particular disadvantage when compared with employees who do not have that characteristic;

harassment – engaging in unwanted conduct related to a protected characteristic (excluding pregnancy and maternity leave or marital and civil partnership) which has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. There are also separate definitions of harassment relating to:

• unwanted conduct of a sexual nature or that is related to gender reassignment or sex; and
• less favourable treatment because of a rejection or refusal to submit to such unwanted conduct;

victimisation – treating an employee less favourably because they have (or the employer believes they have) made an allegation that there has been an act of discrimination or harassment, given evidence in relation to such an allegation or issued proceedings under the Act.

EFFECT OF CHANGES TO DEFINITIONS

Direct discrimination

The words, “because of” in the definition of direct discrimination above replace “on the grounds of”. This change will widen the scope of discrimination by association and discrimination by perception. This means that for all protected characteristics except marriage and civil partnership, it will be unlawful to directly discriminate because you believe an employee has a particular characteristic or because they are associated with someone who has a characteristic (eg discriminating against an employee who is not disabled but who cares for a disabled relative).

Unlike with the other protected characteristics, extending protection to those who are mistakenly believed to be disabled is a significant change to the previous position, where an employee had to demonstrate an actual disability to be protected. It will be interesting to see how tribunals deal with the new position.

Indirect discrimination

The definition of indirect discrimination has been harmonised across protected characteristics, as has the definition of objective justification, where employers can avoid liability for indirect discrimination by being able to objectively justify the relevant PCP by satisfying a tribunal that the PCP is a proportionate means of achieving a legitimate aim.

The only protected characteristic where direct discrimination may be objectively justified is age.

Harassment

The main change relating to harassment has been the extension of the third party “three strikes rule” that previously only applied to sex discrimination to all of the other protected characteristics. Under the new rules if an employee complains about three separate instances of harassment by a third party (not necessarily the same person each time) and the employer fails to take action after either of the first two incidents are brought to its attention, then by the “third strike” the employer will be vicariously liable for the harassment suffered by the employee. One other important change is that, as with direct discrimination, harassment based on association and perception will now be prohibited.

NEW CONCEPTS

Although its main aim is the harmonisation and simplification of discrimination law, the Act introduces a few new concepts. These include:

Dual characteristics

This involves employees bringing claims because they believe they have been directly discriminated against because of a combination of two protected characteristics. The Act’s explanatory notes give the example of an employer who believes that black women do not perform well in customer service roles and therefore passes over a black female employee for promotion to work on reception. If, in that situation the employer can point to a white woman and a black man, both of equivalent qualifications and experience who had been appointed to the role in question, the woman may need to be able to compare her treatment because of race and sex combined to demonstrate that she has been unlawfully discriminated against.

This is a potentially interesting development in the field of discrimination and involves a number of technical difficulties that unfortunately I don’t have the space to address. However, this part of the Act has not yet been implemented and, at the time of writing, the Coalition Government has not committed to bringing it into force by the original proposed date of April 2011.

Disability discrimination

The concept of indirect discrimination has been introduced to the field of disability discrimination for the first time. There are likely to be difficulties in identifying a particular group of disabled people with the same “characteristic” (Must they have the same degree of impairment? The same underlying cause?). In part to address this issue,  a new type of discrimination has been introduced whereby a disabled employee will be discriminated against if someone treats them unfavourably “because of something arising in consequence of their disability” (and this less favourable treatment cannot be objectively justified). This is intended to make it easier for disabled people to show that they have been treated less favourably because of their disability. I suspect that in practice that any employee who issues a claim for indirect disability discrimination will also sue for this new “discrimination arising from a disability” at the same time.

Pay secrecy, gender pay gap reporting and public sector duties

Employers are not prevented in all circumstances from having rules or policies that prevent their employees discussing their pay. However, any such rule or policy is unenforceable to the extent that it purports or seeks to prevent employees from discussing pay with their colleagues (including former colleagues) if the reason for the discussion is to allow the employees to find out whether or to what extent there is any pay imbalance that is connected with having a protected characteristic. The likely legal battleground in this area will be the issue of whether a particular conversation was for the purpose protected by the Act.

The previous Government had also intended that businesses with 250 or more employees would have to publish information relating to their employees’ pay. However, it appears that the Coalition Government does not intend to implement this part of the Act (as long as the Conservatives have their way).

At the end of November 2010, the Coalition Government also announced that it did not intend to implement a proposed wider obligation on public sector employers to make strategic decisions with due regard to the desirability of reducing the impact of socio-economic disadvantage.

Positive action

Before the Act, training could be provided to under-represented groups to encourage the take up of jobs in a particular area. Positive discrimination (for instance promoting an employee because they have a protected characteristic) was unlawful. The Act has not radically changed this position, but it is now permitted (but not compulsory) to take under-representation of particular groups into account when selecting between two equally-qualified candidates for recruitment or promotion.

Health Questionnaires

Businesses are prohibited from asking about the health of job applicants before either making a job offer or creating a pool for selection. Employees can’t enforce this right directly but must ask the Equality and Human Rights Commission to take action on their behalf. However, employers can ask about health for the purpose of determining if reasonable adjustments are necessary and (more controversially) to establish if the employee can carry out “a function that is intrinsic to carry out the work concerned”. Precisely to what extent this allows employers to make such enquiries is not clear. For now at least, I would certainly recommend erring on the side of caution.

Tribunals’ enforcement powers

When a discrimination claim is successful, employment tribunals will now have the power to make recommendation as to what steps the business should take to reduce the adverse effect of the discrimination on the claimant or any other person. It will be interesting to see the extent to which tribunals choose to exercise this new power and whether such recommendations will have any practical effect. Perhaps crucially, tribunals have no enforcement powers if an employer doesn’t implement their recommendations.

CONCLUSION

For such a substantial piece of legislation, there is not likely to be much of an immediate impact on the way that most employers conduct their business (except probably in the case of health-related questions during recruitment). Perhaps this is not surprising given that the Act is intended mainly to simplify and streamline existing law. Ironically, in respect of the new grounds for disability discrimination and (if introduced) the new dual discrimination claims, at least in the near future are likely to lead to more complication in tribunal claims.

This article first appeared in the January – March 2011 edition of the Milton Keynes and North Bucks Chamber of Commerce’s Vision Magazine

From 1 February 2011, employment tribunal compensation limits will increase.

These increases are set out in the Employment Rights (Increase of Limits) Order 2010, which is currently before Parliament, and the main changes are:

1. Maximum compensatory award for unfair dismissal will rise from £65,300 to £68,400;

2. Maximum amount of a week’s pay, used to calculate statutory redundancy pay (amongst other things), will rise from £380 to £400; and

3. Minimum basic award of compensation for certain unfair dismissals (e.g. for reasons of trade union membership or activities; health and safety duties; pension scheme trustee’s duties; acting as an employee representatives) will rise from £4,700 to £5,000.

Click here for full details of all the increases (see the Schedule at the end of the Order.)

For full details of what else is changing in employment law in 2011, please click here.

You can read the full article here: http://www.hrmagazine.co.uk/hro/news/1018762/employees-duties-importance-loss-litigation

In coming to this decision the tribunals were following what is fast becoming the orthodox approach in religious discrimination claims. Similar judgments have previously been given in the cases of: 

 1. a committed Christian social worker, whose dismissal was not discriminatory because it was based not on his beliefs but because of his breach of his employer’s prohibition on the over-promotion by social workers of their religious beliefs (Chondol v Liverpool City Council);

 2. a registrar of births marriages and deaths who was not discriminated against when she was disciplined for refusing on the grounds of her religious objections to conduct civil partnership ceremonies between same-sex partners because the disciplinary action was not taken because of her religious beliefs but because of her refusal to carry out a legitimate duty (Islington Borough Council v Ladele); and

 3.  a relationship counsellor whose dismissal for refusing to provide psycho-sexual counselling to same-sex couples was not discriminatory because it was not based on his beliefs that same-sax relationships were sinful but because he was refusing to comply with his employers equal opportunities policy in doing so (Macfarlane v Relate Avon Limited).

 In the second and third of these cases, the key point was that the EAT considered that a person who acted the way that Mrs Ladele or Mr Macfarlane had for a reason completely unconnected with their religious beliefs would have been treated exactly the same way by their respective employers. It could not therefore be said that they had been discriminated against on the grounds of their religion.

Alan Power was employed by Greater Manchester Police as a trainer of special constables from 6 to 24 October 2008. During that period, two complaints were received from police officers in separate forces about his disruptive and unhelpful attitude. The Manchester force also discovered a CD-ROM and posters relating to psychics and spiritualism which Mr Power had provided to other police forces before the investigation began. His dismissal letter referred to information which had come to light regarding “previous work with Neighbouring Forces and your current work in the psychic field”. Mr Power brought a claim against the Manchester force alleging that he was discriminated against on the grounds of his religious or philosophical beliefs.

Mr Power sought protection in respect of his beliefs as a Spiritualist, ie the belief in the existence of God, that there is life after death and that the dead could be contacted through mediums or psychics. Mr Power asserted that this was both a religious and a philosophical belief.  On 12 November 2010 the EAT gave judgment on the preliminary issue of whether belief in spiritualism and the philosophical belief in life after death and psychic powers falls within the scope of the Employment Equality (Religion or Belief) Regulations 2003. The EAT agreed with the original tribunal, which was satisfied that Mr Power’s beliefs met the test of having sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society. Some of the relevant factors influencing that decision included: the fact that Mr Power was the member of, and regularly attended, a Spiritualist Church;  he produced records showing that the first Spiritualist Church was established in 1853; and the 2001 census found that Spiritualists were the eighth largest faith group in Britain with 32,404 adherents (although, without wishing to make any serious point about it,  I notice that the same census recorded a total of 390,000 who claimed to adhere to the religion of “Jedi Knight”!).

Having established that his beliefs fell within the definition of a religious or philosophical belief that is protected by the Regulations, Mr Power then had to persuade the tribunals that he had been discriminated against on that basis. The outcome of that part of the claim is covered in my next blog (http://www.mablaw.com/2010/12/psychics-in-the-police-part-ii/)

Dr Easwaran was a medical demonstrator at St George’s Hospital Medical School. He worked mainly in the hospital’s dissecting room where he prepared cadavers for teaching purposes and assisted in demonstrations for students studying anatomy. During the winter of 2007 to 2008 there was a problem with the dissecting room’s air conditioning that meant that the room was very cold. It also meant that there was a risk that fumes from the formalin used to preserve the cadavers might build up. The technician with responsibility for the physical conditions of the room addressed that risk by opening the windows from time to time.

Dr Easwaran asked the technician to close the windows because he felt the dissecting room was too cold. The technician refused because of the risk of formalin fumes, which led to a heated argument between the two of them. Following this argument, Dr Easwaran wrote to the doctor with ultimate managerial responsibility for academic staff on 5 November 2007 describing his concern about the temperature and his argument with the technician. In that letter, Dr Easwaran stated, “I said it was basic health and safety as we do stay for hours inside the DR that might affect my health adversely (Eg: Pnumonia [sic] etc).”

Dr Easwaran’s employment tribunal claim was based on the assertion that his letter of 5 November was a qualifying disclosure because it showed that he believed that “the health and safety of any individual has been, is being or is likely to be endangered” (section 43B Employment Rights Act 1996) and that he suffered a detriment as the result of having made that disclosure. During the hearing of his claim he confirmed that his primary concern was that he might contract pneumonia as the result of the cold conditions. The Employment Tribunal found as a matter of fact that pneumonia is not a condition caused by working in cold temperatures. It refused to uphold Dr Easwaran’s claim and he appealed to the Employment Appeal Tribunal (“the EAT”).

The EAT criticized the original Tribunal’s judgement for not sufficiently distinguishing the separate elements of a whistleblowing claim. As applied to Dr Easwaran’s claim these were:

1. Did Dr Easwaran disclose any information in his letter of 5 November (ie was there a “disclosure” to his employer)?

2. If so, did he believe that the information tended to show that the health and safety of any individual had been, was being or was likely to be endangered?

3. If so, was that belief reasonable?

The original Tribunal had decided that Dr Easwaran’s assertion that he was at risk of contracting pneumonia was an “unsupported allegation” that constituted “a mere expression of opinion” and that he had not therefore met the requirements of section 43B. The EAT said that the Tribunal had not sufficiently distinguished the constituent elements of the claim but it refused to overturn the original decision on the basis that the Tribunal had addressed the right questions “albeit not in the most systematic way”. The EAT held that Dr Easwaran had made a disclosure and did genuinely believe that there was a risk to health and safety (so parts 1 and 2 were satisfied). However, it said that the original Tribunal was entitled to take into account the fact that there was no risk that Dr Easwaran might get pneumonia because of the cold conditions in deciding that his belief was not reasonable. The EAT reminded itself that just because a belief turns out to be factually wrong it need not necessarily be unreasonable but decided in this case that the Tribunal was entitled to find that Dr Easwaran’s anger from his argument with the technician led him to taking an extreme and unjustified position about the risk of pneumonia. The claim therefore failed.

The 3 elements set out above are required to succeed in any whistleblowing claim (althoughthe ERA 1996 also sets out 5 potential grounds in addition to risks to health and safety ). The other key element, which the EAT did not need to address in this case, is the existence of either a dismissal or some other detriment to the employee by the employer that results wholly or mainly from the protected disclosure that the employee has made. It is worth bearing in mind, therefore, that an employee can make a perfectly valid protected disclosure but, if dismissed for an equally valid fair reason that is not connected with that disclosure, still not have any whistleblowing claim.

So, as an employer, how will you deal with any potential “World Cup” absences?

Be flexible. Give the employees an option of either taking holiday or unpaid leave. Depending on your business, if possible allow them to listen to the radio or watch the match on TV at the offices. Remind staff that if they call in sick the next day after a match, they may be subject to disciplinary action. You may wish to request a medical certificate for that day.

However you decide to handle the “World Cup” period, make sure you clearly communicate it to your staff in writing.

Let the matches commence…

At one end of the scale, if the employer has relied on an obvious lie in deciding to offer the candidate a job, it is likely to be entitled to treat the lie as an act of gross misconduct and (providing it follows a fair dismissal procedure) dismiss the individual without notice. Even more serious for that person, this could also be considered an act of fraud because they have obtained payments from the employer (their salary) by deception. Such an act could leave it open for an employer to attempt to recover all salary paid to date or even refer the matter to the police to consider criminal prosecution.

At the other end of the scale, a CV may place more emphasis than strictly justifiable on the degree of responsibility the candidate held in a certain role but not actually make completely untrue statements. In such a case, it is potentially more difficult for employers both to discover the extent of the exaggeration and to demonstrate that they relied on that statement in deciding to offer a job. Even in cases of “little white lies”, however, the employer could try to justify a dismissal on the basis that the employee has destroyed any trust and confidence that the employer had in them. Where the lie is discovered before the employment has started, or even within the first year (before the employee accrues normal unfair dismissal rights), any dismissal on that basis is likely to be relatively low risk.

[This article first appeared in the April 2010 edition of Independent Business Hertfordshire, which can be viewed here: http://www.businessindependent.co.uk/past-editions ]

The most striking thing about Mrs Scanlon’s claim initially is the size of the compensation awarded, which was reported to be over £440,000. There are also lessons to be learned about how to deal with whistleblowing issues. The tribunal decided that Mrs Scanlon was dismissed because she criticised the Council for breaching its own contractual equal opportunities policies and asserting that this was potentially discriminatory. The tribunal referred to Mrs Scanlon’s “intemperate language”, “zealotry” and “lack of tact and diplomacy” in pursuing equal opportunity issues. It emphasised that despite these issues it was satisfied that Mrs Scanlon had acted in good faith, commenting, “If policies designed to ensure equality are [being] set aside on the basis of management expediency then what was the purpose of her job?” In respect of the senior management of the Council, the tribunal had found that they had formed the view that the HR Manager that they wanted to appoint was the only suitable candidate for the job and they wanted to get on with that appointment. 

If an employee reports in good faith that they believe their employer has been involved in one of the protected categories of malpractice under the Public Interest Disclosure Act 1998 (such as in this case a breach of a legal obligation), any dismissal that is by reason of the protected disclosure is automatically unfair and it is also unlawful to subject the employee to any other detrimental treatment short of dismissal by reason of that disclosure. Employees will not lose that protection simply because they are intemperate or tactless in the way they make their disclosure. Similarly, an employee who makes an allegation in good faith of sex discrimination is protected from less favourable treatment as the result of having made that allegation. It is not necessary for the employee to prove that such allegations were true, only that they were made in good faith. This can be a difficult issue for HR advisers to deal with, especially when advising managers who “just want to get on with” the course of action they have chosen. 

The other potential lesson to be learned from this case is the need to consider carefully in each case whether policies and procedures should be contractual in nature. In Mrs Scanlon’s case, her complaint was a protected disclosure in any event because she alleged discrimination that was in itself a breach of a legal obligation. There could, however, be circumstances in which the question of whether a disciplinary procedure, for instance, was contractually binding or not would determine the issue of whether there was a breach of a legal obligation and therefore whether the whistleblowing provisions applied at all.

Avatar has grossed $2.2 billion worldwide and that figure is still rising. What if another film were to capture the same essence of that film and be released prior to Avatar, or a member of Cameron’s team leaked the script of Avatar on the internet before its cinema release?  20th Century Fox will certainly not be impressed to see their profits dwindle. After all, film-making is big business.

What is a key asset in business? Information.

You accumulate it and nurture it by cultivating personal relationships with customers and place it on a database. You may even create or invent something which can amount to a “trade secret”. Coca Cola, anyone?

But do you protect it? And if so, then how?

The theft of confidential information (i.e. information that has a quality of confidence about it and not in the public domain) does not require hi-tech equipment in order to obtain it – we are not in Mission Impossible and Tom Cruise’s Ethan Hawke does not need to be winched into some hi-tech facility to take the information!

In its crudest form, an employee can take files home and photocopy them or download information onto a disk or USB stick. They may also try and divert business opportunities to a competitor that they hope to join.

 As a business you have mechanisms to protect the information, namely:

1. Ensuring you have the proper contractual documentation: express clauses of confidentiality, intellectual property and restrictive covenants, or have a separate non-disclosure agreement;
2. Rights arising under various intellectual property rights, such as database rights;
3. Implementing practical measures, by having systems in place to prevent the downloading of information on a USB stick.

Whatever industry you are in, competition is a given; but you know what – it has to be fair.

Ask yourselves this: if you were in James Cameron’s shoes, would you be happy if, say, George Lucas made a similar film and was hailed as a ‘visionary’ of the new decade, broke all box office records, made millions in merchandising, and, come 7 March, became “King of the World”?

Identify what your confidential information is and protect it.

For further information, please contact me at krishna.santra@mablaw.co.uk

Jim Rohn  (Treasury of Quotes by Jim Rohn) 

It has been an interesting week at No. 10 and probably not what the Labour Party want in an election year. However, the Prime Minister, himself, has been put under the spotlight due to the allegations that there is a culture of bullying at No. 10. Last week, Gordon Brown was on the GMTV sofa being interviewed by Ben Sheppard. He said he “was not a bully” but that he “was a hard taskmaster…”

This is certainly a dilemma indeed, is it not, when the head of an organisation may be subject to such allegations of bullying and harassment?

What can one do, especially if that organisation is small and the CEO/MD is the only person within that organisation who runs the company?

Employers may not realise this, but there is a slight distinction between bullying and harassment.

With harassment, this (usually) centres around unwanted, or offensive, intrusive behaviour with a sexual, racial or physical component. It is unwanted physical, verbal or non-verbal conduct which has the purpose or effect of violating a recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Bullying is intimidating, malicious or insulting behaviour, which through the abuse of or misuse of power, makes the recipient feel vulnerable, upset, humiliated and threatened.  Bullying is often seen as a form of harassment.

As such, bullying and harassment do give rise to a number of legal issues. Employers, remember:

1. You have implied duties in a contract, such as, but not limited to, a duty to provide a safe working environment and a duty to provide redress of grievances;
2. You may fall foul of discrimination legislation if you do not protect employees from harassment;
3. Beware of the Protection of Harassment Act 1997, where an employer is vicariously liable for conduct amounting to harassment by an employee; and
4. Have a clear policy. Set out clearly if the allegation is against a director/CEO; who does the employee direct the grievance to?

Bullying and harassment should not be tolerated in the workplace. However, managers should not live in fear of being firm and driven to maximise the potential in their employees.

If a senior member of your staff, or even the MD or CEO, is accused of bullying and/or harassment, you must deal with it. If you do not deal with it promptly, it may end up costing the company thousands of pounds.

In the case of The City of Edinburgh Council v Dickson, the disciplinary allegation against Mr Dickson, a community working and development worker at a High School in Edinburgh, was that he had been seen by a number of adults and children viewing “seriously pornographic” material on a computer at the school.  His defence to the allegation was that he had no memory of any such incident and could only assume that his conduct and the lack of memory of it were both caused by a hypoglycaemic episode relating to his type-1 diabetic condition. Both the manager making the initial decision and the councillor who dealt with the appeal did not believe Mr Dickson’s explanation and he was dismissed for gross misconduct.

Mr Dickson issued claims for unfair dismissal and disability discrimination. Both claims were successful at the tribunal. When the Council appealed, the EAT overturned the disability discrimination decision, holding that the fact that Mr Dickson was a diabetic did not influence the way that the Council reached its decision to dismiss at all.

However, the unfair dismissal finding was upheld. The main reason for this is that the Council “failed to engage” in the explanation offered by Mr Dickson at all. In other words, the Council decided that Mr Dickson was lying without taking proper steps to understand the evidence that was available about his medical condition. Both the tribunal and the EAT were less than impressed that the the manager conducting the disciplinary meeting seemed to have relied on (incorrect) advice provided by the Council’s HR adviser, second-hand from the adviser’s wife (who happened to be a pharmacist) that a hypoglycaemic episode could not result in out of character behaviour or memory loss.

The striking thing for me about this case is that with a little more care the employer could have reached exactly the same conclusion and not been liable for unfair dismissal. The reason why is explained in the EAT’s judgment, “[I]t was in principle plainly open to [the Council] to disbelieve [Mr Dickson's] explanation… Thus, if it were shown that [the Council] had engaged with the Claimant’s defence but had reached a considered view that it should be rejected, it is hard to see how that conclusion could be said not to have been open to it… [The Council] had simply not taken the defence seriously”.

The background to the claim is that Ms Eweida was a devout practicing Christian, who had worked part-time on BA’s check-in desk since 1999. In 2004 BA changed its uniform from a high-necked blouse to a uniform that incorporated an open collar, but forbade the wearing of any jewellery around the neck. In 2006 Ms Eweida twice wore a small cross on a chain around her neck and, when challenged, removed it. The third time she wore the cross, she refused to remove it and was sent home. She remained at home on unpaid leave from 20 September 2006 until 3 February 2007 after BA changed its policy to allow the wearing of a faith or charity symbol. She is still employed by BA.

Ms Eweida issued various claims against BA alleging harassment and both direct and indirect discrimination on the grounds of her religion. These included a claim that not allowing her to wear the cross around her neck was indirectly discriminatory of her as a Christian because it was a “provision, criterion or practice” (“PCP”) which although it was applied equally to all BA staff, put persons of Ms Eweida’s religion or belief at a particular disadvantage. None of those claims were upheld either at the initial Employment Tribunal or at the Employment Appeal Tribunal.

The only ground of appeal pursued by Ms Eweida in the Court of Appeal was that the Employment Appeal Tribunal had been wrong to find that in order for her indirect discrimination claim to succeed, Ms Eweida was required to show that she was part of a group of people within the BA workforce who were disadvantaged because their religion or belief made it harder to comply with the PCP applied by BA. Ms Eweida’s argument was that it should be enough to show that she alone suffered that disadvantage on the grounds of her religion.

In refusing to uphold her appeal, the Court put significant weight on the tribunal’s findings that the detriment which Ms Eweida complained of was suffered by her alone and her complaint arose from a personal objection neither arising from any doctrine of faith, nor interfering with her observance of it and never raised by any other BA employee. The Court also held that there must be some element of disadvantage to a group (even a potentially small one) in order for there to be indirect discrimination.

The case provides useful guidance to employers on an issue which has been the subject of numerous cases in the tribunals since religious discrimination laws were introduced in 2003,  though there will no doubt be further litigation in relation to dresscodes and appearance in the context of employment.  Lord Justice Sedley was at pains to point out that this case was not about whether BA had adopted an anti-Christian dress code, treated other religions more favourably or harassed Ms Eweida because of her beliefs. It will be interesting to see if that is how the case is presented in the wider news media.

For those who want a little more detail, the Court of Appeal’s judgment is available at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2010/80.html&query=eweida&method=boolean.

Unite’s  second ballot has been required as the result of the High Court’s decision on 16 December 2009 to grant an injunction preventing Unite from proceeding with a 12-day cabin crew strike over the Christmas period on the grounds of its failure to comply with the statutory rules governing balloting members and notifying employers. Having read Mrs Justice Cox’s judgment, I can’t help but feel that some of the press commentary in its immediate aftermath was a little surprising. Taking a couple of examples from the day after the judgment, Seamus Milne in the Guardian lambasted it as “blatantly political”, whilst at the other end of the spectrum the Telegraph questioned whether Unite’s outrage was “synthetic” and asking whether its failure to appeal the judgment indicated that the court’s decision had let Unite off the hook.

Given the evidence before Cox J at the hearing, however, it is not surprising that she came to the conclusion that she did nor that there has been no appeal against her decision. In order to secure the necessary statutory protection against claims for inducing a breach of contract, when a trade union ballots members on strike action, it has to comply with certain statutory requirements. Entitlement to vote in the ballot must be given to “all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part… and to no others.” The union must notify the employer at least 7 days before the ballot of the numbers of those members who will be balloted. The figures must be as accurate as is reasonably practicable in the light of the information in the possession of the union but small accidental failures can be disregarded.

BA’s challenge to Unite’s procedures was based on the fact that Unite knew that approximately 1,000 of the 10,000-odd employees that it balloted had accepted voluntary redundancy and would not be employed by BA at the time of the strike. Unite tried to persuade the Court that it had done all it reasonably could to identify those employees but (partially as the result of BA’s alleged instransigence) had not been able to do so at the time of the ballot.  Although there were other factors that played their part, the key point for Cox J appears to have been the lack of effort by Unite to notify employees taking voluntary redundancy that they were ineligible to vote or to ask those employees if they were leaving before the strike. In the absence of such steps, Unite were unable to show that they complied with the requirements of the legislation.

It is easy to sympathise with the argument that the inclusion of the ineligible employees made no difference to the outcome of the ballot when approximately 92% of voters, on a turnout of around 80%, supported the ballot.  However, Unite would have also had to persuade the court that its inclusion of those employees in the ballot was “accidental” in order to receive the statutory protection in respect of the ballot itself, which it failed to do. Having been blocked by this technical requirement though, has anyone been surprised by Unite’s decision to hold a second ballot given the high level of support in the first? In addition, is there a valid argument that  our legislation should be flexible enough to allow procedural errors that genuinely could not have affected the outcome of a ballot to be disregarded?  Perhaps your preferred answer to that question might depend on which side of the business and political fence you sit…

That case regarded protecting one’s family and home. What happens in a situation where your company property or your employees are at risk?

What if you are a business that hires security guards or a night club that engages bouncers, is it right for you to ask them to perform their duties and protect property or patrons? What happens in a situation where a security guard, to prevent a robbery of company goods or protect employees, applies such force so as to permanently injure or, in a worst case scenario, kill an intruder? What really amounts to reasonable force? Not only may that individual face criminal prosecution but he may lose his job on the grounds of gross misconduct.

Also what is your liability in those circumstances since you hired these individuals to perform certain tasks? After all you owe them a duty of care to provide a safe working environment. Does your public liability insurance cover death or injury to members of the public who are in the process of committing a crime and that security guard/bouncer is merely undertaking their role?

Let’s say that your employee’s role was not to apply some force, but they were an ordinary employee at a petrol station or a shop. If a robbery takes place, who protects them?

Interesting times. With the high profile of this case, a security guard or bouncer may think twice before applying force as their liberty may far outweigh any job.

What are your views?

What perhaps is interesting about this case, is that it has simulated discussions over the perceived misuse of the “race card”. Discrimination can be very personal to an individual, and what they perceive to be an act of discrimination may not necessarily be the case but can one really criticise them for raising the issue in the first place?

We do not live in Aldous Huxley’s “Brave New World”. It would be naïve to think that discrimination in all its forms will be eliminated. Discrimination legislation (which is ever evolving) is here for a reason. It is to protect those belonging to a minority group against acts of discrimination. We still do not have enough high profile individuals in prominent positions that are from ethnic groups or other minorities. This is reflected by the fanfare that surrounds individuals when there is an appointment to such a prominent and coveted role, think Sir Mota Singh, who was Britain’s first Asian Judge, President Obama or Margaret Thatcher.

I recall a case at a Tribunal some years ago when a comment was made that just because an individual was a woman and black does not confer the automatic right to bring a sex and race discrimination claim.

Employers have tried hard to promote equal opportunities within their organisations and recruit actively from minorities. There are genuine cases of discrimination out there but employers may become dubious of such claims and perceive them as being spurious.  If an employee (who happens to be from a minority group) has allegedly committed a wrongdoing then they must be subject to a disciplinary process, employers should not be fearful of being sued due to the colour of their skin.

Race should never be used as an excuse or a sword. If this happens we have a problem.

Some employers allow payment of personal expenses for their employees as well as business expenses.  Have a clear expenses policy in place. If certain expenses have to be authorised in advance then express that in the policy. When a claim is submitted, check it, do not just approve it. Question the employee. If you continue to spot inconsistencies in an employee’s expense claim, act upon it and subject them to a disciplinary hearing.  

Do not get into a situation where the employee may have made substantial sums resulting from a dishonest act.

                                                                                          Barack Obama (New Yorker, 2004)

President Obama has completed his first year as President and it looks like the honeymoon is over! The ACAS code of practice is nearing its first year anniversary, April 2010. Was it worth it? Should the legislation have been amended in 2004 to bring in the statutory dispute resolution procedures only to be repealed in 2009?  After all, employers were aware that pre 2004 if they failed to follow a procedure then a possible  outcome may be unfair dismissal. So how have employers found the ACAS code? Do you feel that the law pre 2004 worked well and should have been left alone? Has the new ACAS Code assisted in dealing with employment disputes?

Have your say as an employer. Does the ACAS code work or should the statutory procedures have remained?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) do not protect you if you fall foul of the immigration legislation. It is not enough to say that you were purchasing a business and, as such, all employees automatically transfer to you. If you do not have the necessary Sponsorship Licence to take on those employees, then you will be subject to a fine of up to £10,000 per illegal worker.

What do you do? Speak to the employee, ascertain what the problems are ie marital or debt problems, ensure you have all the facts, discuss with them taking time off as holiday or unpaid leave to sort out the problems. Inform them that whilst you will be compassionate, if it continues to affect their work performance then they may be subject to a capability procedure. If the personal problems relate to ill health be aware of the disability discrimination act, or dependants be aware of the regulations relating to time off for dependants.

Really individuals should leave their personal problems at home once they come to work but that is not the reality. Therefore act immediately, as it creates an unpleasant atmosphere within the workplace.

Whatever the outcome of the England Captaincy, good luck to the Team!

• a phased return to work;
• amended duties;
• altered hours; and
• workplace adaptions.

The GP also can add further comments or make their own suggestions.

The phrasing of the new fit notes is intended to acknowledge that it is not the doctor but the employer, in consultation with the employee, who is best placed to make a decision as to whether they can accomodate any changes to facilitate a return to work.

Despite concerns raised in the consultation process that employers and GPs will need time to adapt to the new procedures, the Government has stated that it believes the new system will help support more people with health conditions return to work. It therefore intends to introduce the new scheme “at the earliest opportunity”, which means that it will come into effect on 6 April 2010. Employers will therefore need to make sure that they understand and are ready to deal with the new system by that date.

The Government’s response to the consultation and a sample fit note can be found at: http://www.dwp.gov.uk/docs/reform-med-stat-govt-response-29jan10.pdf

However, from 14 December 2009, vacancies must be advertised for four weeks, so that UK workers have more opportunity to apply for vacant positions. Employers can advertise a vacancy for a continuous period of four weeks or split it into a number of periods (e.g. two periods of two weeks).

The Draft Immigration Bill, aimed at simplifying and consolidating immigration laws, was published on 12 November 2009.

Under the Bill, the five categories of leave that migrants may currently apply for when seeking entry to the UK will be replaced by one ‘immigration permission’, which can either be temporary or permanent. The temporary permission will be given to those visiting, working or studying in the UK and will be subject to conditions. Currently, migrants are able to vary the duration or purpose of their leave but, under the Bill, a new immigration permission would have to be sought if the purpose or duration of their leave is to be changed.