Unfair dismissal

If an employee has contributed to their dismissal, their compensation can be reduced by anything up to 100%. This is called 'contributory fault'. A tribunal will use its discretion to decide what deduction would be fair in any given case. In Jagex v McCambridge, the Employment Appeal Tribunal looked at whether the conduct in question must be gross misconduct in order to justify a reduction for contributory fault.

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Philosophical belief discrimination

The Equality Act 2010 protects people from discrimination based on their philosophical beliefs. In order to be protected, the belief must be:

  • Genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Concern a weighty or substantial aspect of human life;
  • Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
  • And must be worthy of respect in a democratic society.
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Sex discrimination

Section 18 of the Equality Act 2010 deals specifically with pregnancy and maternity discrimination. A woman bringing a claim under section 18 does not need to show that a male comparator would have been treated more favourably (they can't, because men cannot be pregnant or go on maternity leave). In normal direct discrimination claims under section 13, employees need to provide details of a comparator who was treated more favourably than them in comparable circumstances.

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Whistleblowing

A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has 'blown the whistle' on malpractice. The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal even though the decision maker was unaware of the protected disclosures.

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“Hangover days”

How many working days is your business losing to hangovers? This is particularly relevant after the festive season where Christmas parties and social events often fall on a school night. Did your business suffer a flurry of suspicious tummy bugs during Christmas party season? Some businesses are choosing to accommodate hangovers in a different way, keen to avoid the extra absence which seems to occur around this time of year.

The Audit Lab is a Bolton based business which has decided to do things a bit differently. The business allows employees to book 'hangover days' in advance when they know they are going out midweek. This enables employees to work from home in their pyjamas rather than come into the office when feeling delicate. Founder and director, Claire Crompton, told BBC5 Live's Wake Up To Money that the system appeals to the younger generation and promotes honesty. She said that alarm bells might ring if staff were pulling two or three hangover days a week or missing important meetings but said employees have been respectful so far.

Does this kind of system encourage heavy drinking mid-week or simply reduce the incidence of employees ringing in sick when they have overindulged? This kind of policy won't suit every business, but flexible working is increasingly becoming the norm. Employers should consider what flexibility can bring in terms of honesty and commitment, as well as the positive effect on working hours lost to sickness absence. And wouldn’t you rather know the real reason for someone staying in bed?

Redundancy – alternative employment and trial periods

A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week trial period if the role, place of work or other terms and conditions are different from the previous job. A statutory trial period starts at the end of the employee's employment under their old contract or within 4 weeks of it ending. What happens if a role is deleted in a reorganisation and an employee works in another suitable role for more than four weeks - do they lose the right to a redundancy payment?

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Holiday pay and carry over

The European Working Time Directive entitles workers to at least 4 weeks' holiday per year. Many countries, including the UK, choose to give workers additional holiday entitlement over and above the minimum. The Working Time Regulations 1998 gives UK employees an additional 1.6 weeks of leave per year. The Court of Justice of the European Union (ECJ) has looked at whether the right to carry over holiday due to sickness applies only to the 4 week entitlement under the Directive.

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Worker status

Workers don't have as much employment protection as employees but do have important legal rights such as paid holiday and the right to be paid the national minimum wage.  Employment tribunals will look at multiple factors when deciding whether an individual is a worker or self-employed.  The main ones are

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Martin Luther King Jr Day: why we should all strive for a workplace without discrimination.

It is easy to think that the travails of Martin Luther King Jr are a part of distant history – a past era of black and white newsreel footage of protests and struggles that should be long forgotten.  The Civil Rights movement in the USA has achieved so much, but continuing issues with discrimination show that we are some way from achieving a society where equality, dignity and respect can be taken for granted.  Such problems are clearly not just related to race, but to all of the Protected Characteristics.  Indeed, while Dr King will seem to many to be an historical figure from a less enlightened time, his murder preceded the UK’s Equal Pay Act 1970 by only two years.  Recent decisions from the Employment Tribunal show that employers continue to discriminate against people because of their gender, so can it really be said that we have made much progress towards equality?  It is clear to me that the benefits of achieving a workplace (and a society) without any type of discrimination are massive and underpin the sustainability and success of a business.

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2020 – Employment Law Changes

2020 is shaping up to be a year of significant change in the employment law arena.  Here, we map out some of the important things for your business to plan for, as well as a number of the key cases that we expect to be heard or decided in the coming 12 months.

Employee Written Statement of Terms

Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) will come into force on 6 April 2020

A written statement of terms, usually all covered in a contract must be given on or before the first day of employment to all new workers (rather than within two months of employment starting and only for employees).

In addition, more information than previously must be included in the statement. For instance the written statement will have to include working hours, paid leave, probationary period, training entitlement and benefits.

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Third party harassment

Third party harassment can happen in the workplace when someone other than the employer harasses the employee. This might include patients, customers or visitors. The Employment Appeal Tribunal has recently looked at whether an employer will be responsible for third party harassment.

In Bessong v Pennine Care, the employee was a nurse. He was assaulted and injured by a patient who shouted racist abuse at the same time. The employer called the police but didn’t mention the racial element. The employee brought various claims against the employer, including one for racial harassment based on the attack. The employment tribunal dismissed the harassment claim. They found that the Trust had failed to create a culture where racist incidents were reported, making racial harassment from patients more likely. Although this was unwanted conduct by the employer, it was not conduct related to race. The employee's harassment claim failed.

The Employment Appeal Tribunal agreed. The employer's actions (or failure to act) had to relate to race (or another protected characteristic) for the employer to be liable. In this case, the employer's failure to take adequate steps to prevent racial harassment at work was not due to race.

A government consultation has taken place recently on whether to introduce new third-party harassment provisions into the Equality Act 2010. Calls for this change have come from the Equality and Human Rights Commission and the Women and Equalities Select Committee. We are still waiting for the outcome of this consultation so watch this space. Also look out for the employee's appeal in this case.

Legal privilege

Confidential advice between lawyer and client cannot be used in court proceedings unless the document is created for a fraudulent or criminal purpose. The Court of Appeal has looked at how this principle works in Curless v Shell.

The employee was a lawyer for Shell who had diabetes and sleep apnoea. He brought a discrimination grievance and was later dismissed as part of a reorganisation and redundancy process. He brought tribunal proceedings based in part on a leaked email to Shell from its lawyers which referred to the pros and cons of dismissing 'an individual' as part of the restructure process. The employee said the individual was him. He said the letter wasn’t privileged because it referred to hiding a discriminatory dismissal in a redundancy exercise.

The employment tribunal said the email was privileged. Referring to potential discrimination was not enough to disapply legal privilege. The Employment Appeal Tribunal disagreed. They said the letter referred to cloaking a discriminatory dismissal in redundancy to avoid more discrimination complaints. The Court of Appeal reversed the decision again. The kind of advice the letter contained – how and whether to include someone with an ongoing discrimination claim in a wider redundancy process – was the sort of advice given day in day out by lawyers. It was not part of a dishonest plan and could not be used as evidence in tribunal proceedings.

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Work hours and overtime

We all find it difficult to switch off from technology. Work email being accessible on phones has blurred the lines between home and the office. Companies worried about these blurred lines are taking steps to stop employees from working outside work hours. Volkswagen has set up systems so that emails can only be sent to employees' phones from half an hour before the working day starts and for half an hour after it ends, and never at weekends. Lidl in Belgium has also banned internal emails between 6pm and 7am to help staff switch off.

Could this method of trying to protect your employees cause them more harm than good? The University of Sussex has done research which suggests a blanket ban might help some staff to switch off but might result in other employees not achieving their goals and causing stress.

A better plan might be to allow people to deal with email in a way which suits their personalities and allows them to feel like they are managing their workload. Some people might appreciate, or need, flexible working patterns that necessitate some work outside normal hours. The key for employers is to ensure they have a policy that sets out clear parameters for working outside normal hours. Employees need to know that it is a genuine choice, rather than a compulsion.

Philosophical belief discrimination

The Court of Appeal has considered whether it was discriminatory on the grounds of belief to dismiss an employee for asserting her right to own the copyright in her own creative works. In Gray v Mulberry, the employee refused to sign a standard contract assigning copyright in the work she produced whilst employed to Mulberry. She was scared that it would give them ownership of other written work she produced in her spare time. The contract was changed to exclude the written work, but she still refused to sign it and was dismissed.

The employee claimed that her belief in 'the statutory human or moral right to own the copyright and moral rights of her own creative works and output [unless made for the employer's benefit]' was a philosophical belief and protected under the Equality Act 2010. She said her dismissal for this belief was discriminatory.

To qualify as a philosophical belief, a belief must attain a certain level of cogency, seriousness and importance. The belief must be similar in status to a religious belief.The employment tribunal said the belief in this case lacked the cogency needed to qualify as a belief. The Employment Appeal Tribunal confirmed that the tribunal had not set the bar too high when making its decision. The Court of Appeal came to the same decision, on slightly different grounds. They said there was no connection between the employee's stated belief and her dismissal. She had refused to sign the contract, and was dismissed, because she felt the wording did not properly protect her own interests. The Court of Appeal said a debate or dispute about the wording of a contract could not be a philosophical belief.

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Confidentiality agreements

Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases. The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business's confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.

The guidance discourages the habitual use of gagging clauses when settling discrimination claims. It suggests they are only used in specific circumstances such as a case where a worker does not want the details of their discrimination case to become public. The guidance also advises employers to tailor the clause to the individual case rather than using a standard template. The guidance also suggests that employers might still need to investigate claims which are settled to show they have taken steps to prevent discrimination in the workplace.

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Religious discrimination

Religion and the rights of the LGBTQA+ community have had some high-profile clashes. An employment tribunal has recently considered whether a doctor's religious beliefs 'trump' the right of someone who is transgender to be addressed by their chosen pronoun (he, she, they). Article 9 of the European Convention on Human Rights allows people the right to freedom of thought, conscience and religion. However, this right is limited if necessary, to protect the rights and freedoms of others.

In Mackareth v DWP, the employee was a Christian and a doctor. He believed that God creates people as men or women and opposed transgenderism. He believed that it would be irresponsible for a doctor to accommodate or encourage transgenderism. He was recruited by the DWP to be a Health and Disabilities Assessor. When he refused to agree to the DWP's rules regarding respect for transgender service users' desired pronouns, he was dismissed. He brought claims for discrimination based on his Christian religion and beliefs.

The employment tribunal said his Christianity was protected by the Equality Act 2010. However, his beliefs in relation to transgenderism were not protected because they were incompatible with human dignity and conflicted with the fundamental rights of transgender people. The tribunal also said that refusing to address someone by their preferred pronouns would be discriminatory under the Equality Act 2010. Anyone who refused to do this would have been treated in the same way by the employer, regardless of their beliefs.

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Unfair dismissal

Is a dismissal unfair if the employer changes an investigation report following advice from an in-house lawyer? Not in this case, said the Employment Appeal Tribunal in Dronsfield v The University of Reading. The employee was a professor who had a sexual relationship with a student. University rules said he could only be dismissed for immoral, scandalous or disgraceful conduct. The University investigated the allegations and produced a report. An in-house lawyer suggested some changes, including parts which were favourable to the employee.

The employee was dismissed. He brought an unfair dismissal claim which he lost. The employment tribunal said it was fair for the employer to have their lawyers advise the investigative team. The lawyer's advice had been to limit the report's conclusions to whether there was a case to answer and remove 'evaluative opinions' about the employee's conduct. The lawyer said those judgements should be left to the disciplinary panel. The employee appealed.

The EAT upheld his dismissal. The employer was entitled to act on the advice of their solicitor. The changes to the report were considered at the internal appeal stage. The appeals officer had considered the two reports and concluded that no pressure had been put on the investigators to change the report and the changes were not made to make the employee's dismissal more likely. The dismissal was fair. Although the dismissal was fair in this case, the investigators tripped up initially by making evaluative judgements about the employee's conduct rather than sticking to their job: fact finding and making a recommendation about whether further action (such as a disciplinary hearing) is required. The ACAS guide to conducting workplace investigations might be helpful to anyone conducting an investigation. Find it at https://m.acas.org.uk/media/4483/Conducting-workplace-investigations/pdf/Conducting_Workplace_Investigations.pdf

New ACAS guidance on menopause

This once taboo topic has been high profile lately. Half of the population will go through the menopause and yet it has historically been off limits as a discussion topic. Menopause is more important now than ever with older workers expected to stay in work for longer. ACAS have produced some practical guidance on handling menopause in the workplace.

The guidance goes through what menopause is and the potentially debilitating symptoms it can produce for women. It suggests potential adjustments, from providing desk fans and extra rest breaks to being flexible about start and finish times.

Handling menopause symptoms carefully is essential rather than good practice. Menopause symptoms have been accepted as a disability in tribunal proceedings. Handling things badly could also result in age and sex discrimination claims. Managing menopause effectively will help you retain your best talent and reduce recruitment costs. The main message from the guidance is the importance of openness about the subject and understanding of its effect. Key to this is creating an environment where employees feel confident to raise the subject. A policy is helpful in starting the conversation and educating staff at all levels. Read the guidance here: https://www.acas.org.uk/index.aspx?articleid=6752

Race discrimination

Sometimes employers want to minimise disruption when dismissing an employee, even for misconduct. Putting a false redundancy label on a misconduct situation can be costly though, even if it is well intentioned. The Court of Appeal looked at this issue recently in Base Childrenswear v Otshudi.

The employee was a photographer from the Democratic Republic of Congo. She had been employed for three months when she was made redundant. The employee alleged to the dismissing manager that her dismissal was related to her race, which he strongly denied. Her subsequent grievance was ignored. She then brought a discrimination claim. The employer defended the claim, maintaining that her dismissal was due to redundancy.

Over a year later, only a few weeks before the hearing, the employer changed its defence. They said the employee had been dismissed due to suspicions of theft. He said he had lied about the reason for dismissal to avoid confrontation with the employee. At the hearing, the employment tribunal upheld the discrimination claim. The tribunal drew inferences from the employer's refusal to respond to the discrimination grievance.  The employer had continued to cite redundancy as the reason for dismissal when it was clear that confrontation was unavoidable. The tribunal said that the employer was trying to cover up a dismissal tainted by race. The Court of Appeal refused to interfere. They said that giving an entirely false reason for treatment in the face of a discrimination allegation can be a sign that discrimination has taken place. Although the employer's belief in the employee's guilt may have been genuine, the Court of Appeal said it was based on so little evidence or investigation that it had to be down to stereotypical assumptions about black people.

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What is ‘off the record’?

Off the record conversations can play a vital role in resolving workplace disputes. Section 111A of the Employment Rights Act 1996 says that confidential discussions about ending an employee's employment can be 'off the record' in certain circumstances. These are known as 'protected conversations'. If s111A applies, termination discussions cannot be used as evidence in an unfair dismissal claim unless there has been 'improper behaviour' by the employer.  Section 111A only applies to ordinary unfair dismissal claims. Consequently, the content of termination discussions can be used as evidence in other claims, such as automatic unfair dismissal (for example a pregnancy related dismissal) and discrimination claims.

In Harrison v Aryman, an employee resigned and claimed constructive dismissal after a series of discriminatory acts relating to pregnancy and sex. She said the last straw was a 'confidential settlement proposal' she received from her employer shortly after she announced her pregnancy. The employer said the letter was off the record due to s111A. The employee said the letter was part of the employer's improper discriminatory behaviour and she should be allowed to use it in evidence.

The employment tribunal found that s111A applied, meaning the employee could not refer to the letter in her unfair dismissal claim. The employee appealed. The Employment Appeal Tribunal said the tribunal had got it wrong. When an employee's claim is for automatic unfair dismissal, such as a pregnancy related dismissal, s111A does not apply and the content of a protected conversation can be used in evidence. This is different from the situation in a normal unfair dismissal claim where an employee wants to refer to a protected conversation because they allege improper conduct. In that case the tribunal will need to hear evidence about the improper conduct before deciding whether the evidence can be used.

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Unfair dismissal and extensions of time

Most employment claims should be brought within a three-month time limit. If it is not 'reasonably practicable' for an employee to present his claim within the three-month time limit, an employment tribunal has the discretion to extend the time limit. There are two questions the tribunal must ask: was it reasonably practicable to lodge the claim within the time limit? If not, was it then lodged within a reasonable period? The ACAS early conciliation process provides a potential one-month extension of time following the conclusion of early conciliation. However, this only applies if ACAS were contacted within the initial three-month time limit. The EAT has looked at this issue in Pearce v Bank of America Merrill Lynch.

The employee was employed as Managing Director Head of Sterling Credit. He had been off sick since July 2017. He said his absence resulted from being treated badly because he blew the whistle on poor practice. He contacted solicitors in November 2017, two and a half months after the last 'detriment'. The time limit for lodging a claim expired later in November. ACAS early conciliation started in December, outside the three-month time limit. Conciliation ended in January 2018. The employee didn’t lodge a tribunal claim until February 2018, a month after ACAS conciliation had ended.

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