Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This case shows the need for organisations to have clear IT and Internet usage policies. Organisations should also make sure that those policies have been updated since the increased use of business and personal social networking sites.”

The case involved the provision of services by workers to Autoclenz, which in turn had a contract to provide valet services to British Car Auctions. In the contracts between Autoclenz and the individual workers, they were described as providing the services as subcontractors on a subcontract basis, they could provide a substitute worker (subject to complying with the standards set out in the agreement), there was no mutuality of obligation and the workers could refuse work. In addition, they wore BCA’s rather than Autoclenz’s overalls (as had been worn previously). Although Autoclenz provided the cleaning products and equipment and arranged insurance cover, Autoclenz deducted a fixed amount for the cleaning products and equipment and insurance cover from payments. The workers were responsible for paying tax and national insurance to HMRC. On the key relevant issues of control, mutuality of obligation and personal service, HMRC took the view that the workers were self-employed. Everything seemed to point in that direction.

The workers claimed to have been employees, though, and claimed employment rights. The matter ended up before the Supreme Court, which ruled that they were in fact employees. The workers were therefore entitled to minimum wage and statutory annual leave. Of most importance to businesses and service providers is the approach the Court took to considering whether to disregard the terms stated in the written contract. The Court said that those terms needed to reflect the reality of the position from inception and throughout, and the actual agreement of the parties – rather than the stated position in writing. The Court dismissed an argument that it could only set aside the stated position if there was an intention to mislead; an intention to mislead was not relevant. The Court said that all the evidence of the situation should be examined, including the written terms and how the parties conducted themselves in practice. The mere fact that a particular provision, such as a right of substitution, is not exercised does not mean that it is not genuine. But the evidence of how the parties conduct themselves can be so persuasive as to set aside what has been agreed in writing.

In this case, the following four key terms were what had really been agreed: (1) valet workers would perform services for Autoclenz within a reasonable time and in a good and workmanlike manner; (2) the workers would be paid for that work; (3) they were obliged to carry out the work offered to them and Autoclenz was obligated to give them that work; and (4) the workers must do the work personally and could not provide a substitute.

The Supreme Court argued that one critical difference between employment and ordinary commercial contracts is inequality between the parties. In an employment situation, the person obtaining the services often finds it easier to dictate terms. Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, questions that reasoning. He says: “There are many situations where there is inequality of bargaining power in a commercial contract context and that does not mean that they are really employees. It’s just the fact of the commercial matter that some commercial entities find themselves in a position that they have to accept terms imposed by the other party.”

Paul adds: “The case does, however, provide useful guidance on whether someone is an employee or self-employed. This can have important tax and employment rights consequences. Although the case provides guidelines, each case must be judged according to its own particular circumstances. As can be seen in this case, it is possible for HMRC and the courts to come to different conclusions as to the status of the service provider. MAB provides assistance in helping clients through this tricky area. Please contact me if you would like our help on this.”

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.

The High Court agreed with MMP. The franchisee was responsible for the actions of its employee. It disagreed with the franchisee’s  argument that her actions were outside of the course of her employment and were a matter for her private life. This was about an employee who had misused personal data obtained from a CV obtained through her employment.  This was a breach of her employment contract, but MMP was still responsible.

However, the franchisor’s purported termination of the contract was wrongful and that action in itself was a repudiatory breach of contract as it showed an intention not to perform the contract. The reason was that the relevant clause which had been breached said that MMP must not “do anything to adversely affect our name, Trade Marks or other Intellectual Property”.  On a true construction of those words, Antal would have needed to provide evidence that MMP’s conduct had in fact damaged the Antal brand.  It had not provided that evidence.  A mere fear or concern of the harm or reputation that would be done was not sufficient on the wording used in the agreement.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This case should act as a warning to businesses to be careful when selecting and managing their staff.  However, even more stark is the consequence of failing to have an agreement that says what the franchisor or other business thinks it says.  Care should be used before terminating an agreement, or the otherwise innocent party ends up being the wrongful party.  It should also have made the contract wording tighter by talking about damage to its reputation “in the franchisor’s opinion” so that it would not have to attain evidence to prove that the damage did actually occur.”

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.

The Employment Tribunal disagreed and said that the decision was fair. The action had damaged his employer’s reputation and their decision was within the range of reasonable responses. Gosden’s argument that he should not be held responsible for his colleague’s decision to forward the email was dismissed because the subject was clearly something that was intended to be passed on and not remain private.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This ruling shows that employees cannot assume that offensive material accessed or posted in their spare time has no impact on their employment. People who use technology such as email and social networking sites need to be careful all the time. Meanwhile, employers should ensure that their rights are preserved and dealt with properly in an IT and Internet use policy.”

• 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

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/)

The Court of Appeal has ruled that the inventor employee is only entitled to be rewarded compensation based on the actual earnings of the employer. It should not be based on the open market if the invention had been fully exploited by licensing it better. There is no effective ‘best endeavours’ obligation on the employer to exploit the patent. In addition, there should not be the bizarre result where an employee could end up with greater compensation than the royalties earned by the employer. That was not the purpose of the legislation, which was intended to reward an employee by receiving part of the employer’s benefit.

SailPoint has identified a three-step plan to ensure business information is treated more valuably. Step one: have policies and educate workers about the treatment of confidential information. Step two: strictly limit the accessibility of certain information to particular people, and limit access when people leave the employment or change roles. Step three: conduct quarterly access reviews to see if the existing rights and privileges are necessary, especially for highly sensitive systems.

For more on their survey results, click here: http://www.sailpoint.com/news/press/press-release.php?release=70.

My collegue Krishna Santra and I attended a  conference in Edinburgh last week to address an audience primarily made up of recruitment businesses and potential hirers of temporary labour on complex issues arising from this new legislation.

On the 16th June 2010 we will again be presenting to local business at the University of Hertfordshire at St Albans on this topic as well as the new Equality Act which will come into force later this year. For further information please contact me, visit our web site or contact the Administrator UH School of Law on 01707 286203 or e mail uhlaw-cpd@herts.ac.uk

To read the whole article, click here

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 talk starts at 7.30pm and registration is from 7pm and will finish about 8.45pm.

If you wish to attend please contact me or Mark Pavlika who is organising the event for the CIPD and who can be e mailed as mark @principalstrategy.com

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.

 However, such unsalaried positions may breach the requirements of the National Minimum Wage (NMW).

Most workers in the UK are entitled to the NMW and  employers may be breaking the law if they do not pay the statutory minimum amounts. The current rate of NMW is £5.80 per hour for workers aged 22 years and older. There is also a “developmental rate” of £4.83 per hour for workers aged 18 to 21 inclusive and £3.57 for workers under the age of 18 who are no longer of compulsory school age.

 As a general guideline, if you have a contract of employment you are an employee and therefore a worker for the purpose of the NMW rules. If you don’t have an employment contract you could still be a worker and entitled to receive the NMW if you do work personally for someone else.

 There are people who are not entitled to the national minimum wage and these include the self employed, volunteers and voluntary workers, work experience as part of education and higher education, certain apprentices, members of the armed forces, share fishermen and prisoners.

 It is important to note that just because you volunteer for a role, like the position I saw advertised, does not necessarily mean that you are not entitled to the NMW. If the arrangements under which you ‘volunteer’ effectively mean you have an employment or worker’s contract you may be entitled to the NMW.

It is understandable, in the current economic climate, that employers are looking at making cost savings, but employers should think carefully at whether the NMW applies.  If you are in any doubt as to whether the NMW applies to your voluntary, or other, workers, do not hesitate to contact us.

If you have been given a compromise agreement, it is a legal requirement that you must have it explained to you by an independent adviser, normally a solicitor, before the agreement becomes binding.

I have extensive experience in advising employees on compromise agreements. Having dealt with hundreds of employers over the past 12 months both in and around Watford, and nationwide, I know exactly what should and should not be in your agreement.

Your employer will normally contribute towards your legal costs and usually this contribution covers your legal bill.

 If you have received a compromise agreement from your employer, or it looks likely that you are about to receive one, just drop me a line on 01923 690 034 or Rebecca.Fox@mablaw.co.uk to book an appointment for practical and clear legal advice.

Sal has already written about the event on her blog, http://www.salbrinton.org/

The deleagtes were drawn from the local HR business community and were able to net work with fellow HR collegues to share ideas and experiences. Our next meeting will be in June.  Please email Heloise Paull (heloise.paull@mablaw.co.uk) if you work in the HR sector and would be interested in attending.

Mike Delaney

Partner – Employment

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?

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?

• 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

What are the differences between the new code and the 1988 code?

The new code that comes into effect earlier this month will help both union representatives and the organisations they work for understand the law relating to time off and also manage in a fair and effective manner the practical day to day issues that arise when requests for time off are made. This is the main purpose of the new ACAS code according to the ACAS chairman, Ed Sweeney. The legal new framework that the code refers to has effectively remained the same. In order to improve the effectiveness of relationships between employers and trade unions, the code provides further guidance in relation to changes to the modern workplace. It also provides further guidelines on:
• the provision of time off for the training of trade union representatives;
• the provision of time off so that trade union representatives can carry out their duties and take part in union activities;
• the responsibilities of employers and trade unions to ensure that time off provisions work effectively;
• the advantages of employers and trade unions establishing formal agreements on time off; and
• resolving disputes concerning time off arrangements.
The code also provides further guidance on the confidential and sensitive nature of communications involving union representatives and guidance to employers on union representatives being given access to facilities at the workplace. This assists union representatives in carrying out their duties in a secure manner knowing that they are not being monitored and that they can communicate in a secure environment.

How much of an improvement is the new code over the old?

The legal framework that the new code refers to has not changed. The new code has made a significant improvement to the old one due to the increased guidance that it provides for both employers and trade union representatives in order for them to adhere to their statutory duties. Union representatives are continually required to carry out more complex duties and knowledge of employment law has become increasingly necessary in the workplace. The new code places a greater emphasis on training which  allows the union representatives to carry out their duties in a more knowledgeable,  efficient and time conserving manner. The new code gives greater guidance relating to the increased responsibilities of employers acknowledging trade union representatives activities as well as the advantages for providing for an established formal agreement dealing with requests for time off which should reduce the number of disputes and grievances which result and the desired effect for employers to be able to run a more effective business.

What will cause employers the most concern?

The biggest cause of concern for employers is the increased responsibility placed on them to ensure that the agreed arrangements with trade union representatives work to both parties mutual advantage. An employer’s primary concern is to run a successful and profit making business. Under the code, employers are obliged to consider arranging cover and potentially workload reductions when asked for time off by union representatives to participate in trade union duties or activities.  If such a request were refused employers may face a grievance being raised, industrial action commencing or further still the possibility of an employment tribunal claim. Time off for trade union duties may involve other employees being taken away from their regular duties or work being delayed affecting operations and profit and possibly leading to the business being disrupted.

What are the advantages for the employer of having an agreement in place?

A formal agreement can help provide both the employer and the union representative with a greater degree of certainty. Where specific guidelines are in place setting out the circumstances in which requests for time off will be accepted, union representatives can better manage their expectations when asking for time off to carry out union duties or activities. This will benefit the employer as it will allow them to refuse an unreasonable request for time off provided that the request falls outside of the terms of the agreement. If the union representative decides to raise a grievance for having the request for time off denied, an employer will benefit by being able to point to the terms of the agreement which are in place to illustrate the reasons for refusing the request. Having an agreement also facilitates better planning. A union representative should know exactly how much notice needs to be given to the employer to have the time off authorised. This requires the union representative considering in advance the union duties or activities that need to be carried out so that sufficient cover can be provided for them whilst they are away from their work duties. A formal agreement will ensure that each union representative is treated fairly and reasonably provided that the employer adheres to the terms of the agreement. A possible negative effect of having a formal agreement in place is that it may remove the element of flexibility when an employer is deciding whether or not to accept a request for time off. For example, an agreement may be in place requiring a union representative to provide three weeks notice to carry out union duties which are expected to last for a day. If the union representative were to only give one week’s notice, the employer may feel entitled to refuse the request even if at that specific time they have a surplus of employees that could cover the representative’s duty or it is a quiet time of year in that industry sector. It may appear unreasonable for the employer to refuse the request in such circumstances but the employer could maintain  that the refusal was consistent with the terms of the agreement.  Any agreement should try and build in a degree of flexibility but this in itself could create uncertainty unless properly drafted.

What advice should employers bear in mind when negotiating agreements?

The agreement should primarily set out the procedure for requesting time off. This should include the identity of the manager to whom the request should be made:
• how the request needs to be made;
• how much notice needs to be given; and
• when a response to the request will be provided.
This enables the union representative and employer to plan efficiently for each union duty or activity which will require time off to be taken. The agreement should outline the reasons that an employer may give for refusing the request and the process by which the representative may appeal against a decision to refuse time off or alternatively how a grievance may be raised and dealt with. A prudent employer will set a limit on the amount of time off permitted for each union representative. A business needs to run efficiently and the employer needs to ensure that at all times there is a sufficient number of staff to perform the work caused as a result of any absence. As mentioned previously, a potential issue associated with the formal agreements is that it may remove the element of flexibility. To help combat this problem an employer would be prudent to include provisions allowing the agreement to be varied in certain situations. For example, short notice may be accepted provided that the employer can find adequate staff cover. A list of occasions on which time off can be taken should be included. Such a list could include:
• attending meetings with management or other union representatives;
• time to prepare for management and or trade union meetings; and
• attending union training events.
Once again, an employer would be wise not to make such a list exhaustive as it may be considered unreasonable not to allow a request for time off for an event not included. Employers should build flexibility into the agreement to allow for unforeseen circumstances and introduce a concept of reasonableness to a situation which is not specifically listed.  Care in the drafting is required so as not to cause uncertainty.  The agreement should also cover the circumstances in which time off will be paid and how such pay will be calculated. For example, will the representative be paid a percentage of their usual salary or will there be a fixed amount payable irrespective of salary? Finally the agreement should also cover is the use of company facilities for carrying out trade union duties or activities. If the union representatives wishes to use a meeting room within the company building for example, the employer may want to limit its use or require a certain period of notice so once again if the space is needed, adequate alternatives can be considered.

What are the pitfalls?

A cautious employer will always remember that even with a formal agreement in place, this will not supersede a union representative’s statutory entitlement to time off to undertake union duties. There is therefore a limit on what an employer can include within the agreement as it must still comply with statute. Employers familiar in dealing with Trade Unions will be aware that a shop steward is entitled to take a reasonable amount of time to return union duties and receive training. Even if the agreement does comply with statute, an employer should be willing to go beyond the terms of the  agreement where the circumstances dictate where it would be reasonable to do so thereby introducing flexibility or otherwise, an employer may face a grievance.
 
On what grounds is it safe for an employer to refuse a request for time off?

Failure to observe any provision of the Code will not render an employer liable to any proceedings. This reason for refusal of a request for time off in itself is extremely flimsy. If the refusal is unreasonable the union member or official may decide to complain using the employer’s internal grievance procedure. If the outcome of the grievance is considered not satisfactory to the union representative the union may decide to bring a claim in the Employment Tribunal. In the case of Skiggs v South West Trains Limited [2005] I.R.L.R an employee who was a trade union representative for a union recognised by his employer was refused time off to attend meetings as a trade union representative pending the conclusion of disciplinary proceedings which had been commenced against him. The tribunal found that the employer had been in breach of its statutory duty to allow the employee to have paid time off to engage in trade union activities. An employer will be more justified in refusing a request for time off if the union representative does not give the employer sufficient notice with regard to the purpose of the time off, the intended location and the timing and duration of the time required to fulfil union duties. A business still needs to run efficiently and if an employer is not given adequate warning in order to enable it to provide cover for the absent union member an employer will have stronger grounds on which to refuse the request.

How can an employer judge what is a reasonable time off?

There is no legal definition of ‘reasonable time off’ and so it is for the parties to decide between them what they would consider to be reasonable. This will need to be considered on a case by case basis. A prudent employer must take into account all relevant factors before deciding whether or not to grant the request. Such factors may include the nature of the employer’s business; the need for the union official to do their work; the needs of the union official’s co-workers; the importance of health and safety at work; the amount of time the relevant official has already taken off work; and the amount of notice that the employer has been given that time off needs to be taken.