April 2011 Archives

The Fair Employment Tribunal in Ireland has held that an employer did not constructively dismiss an employee when it referred grave threats to his safety to the police, rather than deal with them itself under its harassment policy, in one of XpertHR’s latest tribunal reports.

Mr Breen, who is Catholic, worked at Bombardier in Belfast. He alleged that a colleague had produced an AK-47 rifle and asked him to purchase the weapon, and said that he began to receive calls on his mobile and home phones accusing him of being involved in republican paramilitary activity and money laundering.

He then found in his locker at work an envelope containing a live bullet and a sympathy card with a threat, and the company referred the matter to the police on the basis of the seriousness of the incident and because the company believed that it had neither the skills nor the authority to investigate the incident on a wider scale.

After the incident, Mr Breen started to receive death threats and allegations of links to a paramilitary organisation on his mobile phone. The threats contained the statement that he could be “got” at work. Mr Breen experienced further intimidation outside work.

It’s gratifying to see that even prestigious organisations like London’s Athenaeum Club (founded in 1824, don’t you know) aren’t immune to a spot of common-or-garden employment tribunal proceedings. A former butler at the club is claiming unfair dismissal after being sacked for allegedly stealing leftovers from a staff barbecue, reports the Daily Mail website.

The club’s secretary is reported as saying that the butler, Mr Gromet, and his family “descended on the food table like locusts” after the staff event, apparently devouring leftovers that the club would have kept for some undisclosed reason. Gromet contends that he took away only food that had been brought to the function by his wife. The real reason for his dismissal, claims Gromet, is that he threatened to sue the club after a workplace accident that resulted in him needing brain surgery.

Perhaps the club should consider bringing in current member Jimmy Savile to fix things. We’ll certainly be publishing a report on the decision if we can get our hands on it.

Picture: wwarby

We round up what caught Tribunal Watch's eye on Twitter this week, including research suggesting that , for women at least, attractiveness can actually be a barrier to being hired.

• Does a woman's attractiveness affect her employability? @xperthr Recruiters, CVs and attractive women: do looks affect employability? http://bit.ly/eueTuH
• Dress codes can spark strong feelings @xperthr Dress codes can spark strong feelings http://bit.ly/dRSWUN
• International perspectives on equality and the law @ukscblogcom Access to Justice: three perspectives on equality and the law http://ukscblog.com/?p=5801
• Will the use of social media in recruitment lead to more discrimination claims? @employlaw_xpert Will the use of social media in recruitment lead to more discrimination claims? http://bit.ly/hd14HH
• Orange tells workers they can relocate to Philippines RT @ljanstis Gaffe or logical applic'n TUPE? RT @louisapeacock Orange tells workers they can relocate to Philippines http://tgr.ph/i8eFay

You can follow Tribunal Watch on Twitter. Have we missed something interesting on Twitter? Tweet us or leave a comment.

A round-up of links to news items on employment tribunal rulings in the week beginning 18 April 2011, including £60,000 for a postman who was sacked for poor attendance after 17 years' service for Royal Mail.

Postman wins £60,000 in compensation from Royal Mail (on the Daily Echo website) A postman who was sacked for poor attendance after 17 years working for Royal Mail has won £60,000 in compensation for unfair dismissal.

An employment tribunal has held that a waiter at a Michelin-starred London restaurant was subjected to repeated unlawful harassment on the ground of his sexual orientation, in one of XpertHr’s latest tribunal reports.

Mr Ma worked as a commis waiter at Yauatcha, a Michelin-starred London restaurant owned by Hakkasan Ltd. In May 2010, Mr Ma submitted a grievance regarding a number of allegations of harassment and discrimination.

• In December 2009, his manager said that he was sexy and discussed his nipples, which were erect due to him having been sent outside on a cold day wearing a thin uniform.
• In April 2010, when he complained about a gay customer pinching his nipple, his manager asked him if he liked it.

• In April/May 2010, two of the management team pretended to be gay men kissing and engaging in simulated sexual acts in his presence, and, during the incident, one of the managers sang Madonna’s “Like a Virgin”.
• In May 2010, a manager asked him whether or not he was a virgin and whether he penetrated or was penetrated by others.
• On an unspecified date, his colleagues joked about who he would take if he won a quiz prize of dinner at the restaurant, and suggested that he should be offered a man to take.

He brought claims including discrimination on the grounds of sexual orientation and constructive dismissal.

A hotel in Anglesey has banned its catering staff from speaking Welsh when the head chef, who does not speak the language, is in the kitchen, says the BBC website.

The hotel, which has only three out of 25 non-Welsh speaking employees, is facing a clash with the Welsh Language Board (WLB). The employer argues that its stance is justified for health and safety reasons.

So can UK employers impose an English-only policy?

More than half of the respondents to an XpertHR survey on employment tribunals [£] have used Acas at least once to settle an employment tribunal claim before it goes to court.

The Government's consultation on employment tribunal reforms, which closes today (20 April 2011), puts Acas at the centre of the proposals for reducing the number of claims. Under the proposals, all claims would have to be submitted to Acas in the first instance, rather than the Tribunals Service. Pre-claim conciliation would not be mandatory but, even when the parties do not choose conciliation, there would be an opportunity for Acas to give them advice. Claims would only be able to proceed if they have been with Acas for one month.

An electrician who works for a housing association has been called to a disciplinary hearing for displaying a Christian cross in the window of his company van, according to a Daily Telegraph report.

Mr Atkinson, who has worked for Wakefield and District Housing for 15 years, has been told that he must remove the eight-inch cross made from woven palm leaves that sits on the dashboard.

The Telegraph says that the housing association has a policy of allowing employees to wear religious symbols at work and gives the example that other staff have been allowed to display photographs of Che Guevera in their office. However, the employer claims that the cross may cause offence and "gives the impression that WDH is a Christian organisation".

Alan Power, a trainer sacked by Greater Manchester Police for bringing to work DVDs and posters related to his spiritualist beliefs, has been told that his case will not be heard in the Court of Appeal, reports the Manchester Evening News website.

Power, described as a “ghostbuster” by the report, presumably because of his views on how the police can use psychics, had sought permission to appeal the decision to dismiss him in the Court of Appeal. His case attracted much publicity when a tribunal held that spiritualism is capable of being protected under the Employment Equality (Religion or Belief) Regulations 2003, now replaced by the Equality Act 2010. However, the tribunal found that the dismissal was not discriminatory, given that the delivery of the DVDs and posters were an unacceptable way of expressing his spiritualist beliefs. XpertHR subscribers can read a report of the ET decision here. The EAT agreed with the ET, and XpertHR subscribers can read a report of that decision here.

The ET decision that spiritualism prompted entirely predictable alarmist stories about employment law having gone mad, and so on. But the saga is a reminder that although people can believe whatever they want, if they start expressing those beliefs at work in an unacceptable way, discrimination law won’t help them.

As a postscript, the report says that Power runs a “paranormal website”. I’d like to have a look, but I can’t find it - if you can, please post a link below!

Picture: AdamL212

An employment tribunal has held that a well-known employer undertook a sham redundancy exercise on the whim of its chief executive, in one of XpertHR’s latest tribunal reports.

Two women, Mrs Madine and Mrs Oakley, worked as HR managers for The Garden Centre Group Ltd, which runs the well-known Wyevale garden centres. On 31 October 2009, both women were dismissed, purportedly for redundancy, and were not successful in their appeals. However, the employees believed that the real reason was a knee-jerk reaction by Mr Marshall, the company’s chief executive, to an email that he had seen from Mrs Madine that he regarded as displaying some lack of loyalty to the company. Both employees claimed unfair dismissal, arguing that the redundancy process was a sham, and in any event not fairly handled.

The company argued that it had made a decision at a meeting on 9 September to cut costs, although there didn’t appear to be much evidence that this meeting ever took place. Nor did the company provide evidence of any proper consultation as to the redundancy pool, or specifically tell the two claimants during consultation the rationale for the purported redundancy.

We round up what caught Tribunal Watch's eye on Twitter this week, including the CBI's response to the Government's consultation on employment tribunal reforms.

• Introduce league tables for employment tribunals, says CBI @personneltoday The Government should introduce employment tribunal league tables to restore the credibility of the system, the CBI has argued. http://bit.ly/hrsBHW
• Is the CBI's response to the employment tribunal reforms logical? @AnyaPalmer So, CBI wants claimants to pay a fee, refundable on success, before they can issue a claim in employment tribunal...so claimants who lose, lose their fee. But business up in arms at idea that employers who lose pay a fine. Logical? http://bit.ly/dWcNSZ
• Female-friendly firms: What makes an organisation a top employer for women? @ptodlaura This week The Times published its list of the top 50 employers for women, in partnership with workplace gender equality campaigners Opportunity Now. http://bit.ly/hNvgIk
• EAT on the move @EmploymentBar Employment Appeal Tribunal will move in September to premises off Fleet Street
• Red tape - don't believe the hype @tribunalmonkey Having heard from NY lawyers about US labor law, I would be more confident employing in the UK. Red tape - don't believe the hype.

You can follow Tribunal Watch on Twitter. Have we missed something interesting on Twitter? Tweet us or leave a comment.

A round-up of links to news items on employment tribunal rulings in the week beginning 11 April 2011, including an unsuccessful employment tribunal claim by a woman who claimed that she resigned after appraisal meetings were held in the disabled toilet.

Woman resigned after firm held meetings in disabled toilet to discuss her work (on the Birmingham Mail website) A woman resigned as an administrator at a Midland debt collecting firm after complaining that bosses held a meeting about her work - in a toilet for the disabled.

Another day, another high profile tribunal case with juicy facts against the BBC. A former Newsnight and News at Ten editor is claiming unfair dismissal and disability discrimination against the corporation, after being sacked for persistently homosexually harassing a colleague by phone and email, reports the Telegraph website.

Apparently the editor in question, Jonathan Steer, began paying “unwanted attention” to the colleague - known only as Andrew - in December 2008, after they went for dinner. Steer then, allegedly, began a seven-month campaign of sending Andrew messages both as himself and, bizarrely, as two aliases: Sir Richard Lionheart and Scott Bainbridge, the latter being presented as Steer’s “best friend”. He also sent Andrew’s former partner a link to a Facebook quiz entitled: “How good are you at gay sex?”

The Fair Employment Tribunal in Northern Ireland has found that Bombardier did not discriminate against a Catholic employee who received death threats, reports the BBC website.

Mr Breen, who is a Catholic, worked as an aircraft fitter at Bombardier in Belfast. He received calls on his mobile and home phones accusing him of being involved in republican paramilitary activity and money laundering.

Mr Breen also found in his locker at work an envelope containing a live bullet and a sympathy card with a death threat. Bombardier contacted the Harbour Police to investigate. After the incident, Mr Breen started to receive death threats and allegations of links to a paramilitary organisation on his mobile phone. The threats contained the statement that he could be gotten to at work.

“We are not in the business of teaching profanity”, read the dismissal letter of Luke Webster, who was sacked from his teaching job at a Sydney college after giving a class to adult students about the F-word, reports the Telegraph website. Happily for the more open-minded among us, Mr Webster has now succeeded in claiming unfair dismissal, apparently under Australian law.

Problems began when Mr Webster gave students a worksheet regarding grammatical use of the F-word in different sentences, an exercise that was, he claimed, designed to explain “when the word is offensive and when it is not”. When the college got wind of Mr Webster’s actions, it dismissed him, stating that the teaching material was “highly offensive” and constituted gross misconduct.

There's just a week to go before the closing date for responses to the Government's wide-ranging consultation on proposals to reduce the number of employment tribunal claims. Tribunal Watch provides a reminder of the key points of the proposals.

Over the last 10 weeks, we've been providing a series of blogs looking at some of the most important parts of the tribunal reform consultation, which closes on 20 April 2011:

• (1) Financial penalties
• (2) Acas conciliation
• (3) Statement of loss
• (4) Striking out claims
• (5) Witness statements
• (6) Employment judges' role
• (7) Fees for bringing claims
• (8) Costs orders
• (9) Deposit orders
• (10) Unfair dismissal service threshold

The Supreme Court is considering the issue of the extent to which employees should be allowed legal representation at disciplinary hearings, in the important case of R (on the application of G) v Governors of X School and Y City Council.

The case involves a teaching assistant who was accused of kissing a 15-year-old boy and who faced being placed on the list of individuals barred from working with children. In R (on the application of G) v Governors of X School and Y City Council [2010] IRLR 222 CA [£], the Court of Appeal held that the school should have allowed him to be accompanied by a lawyer at a disciplinary hearing when a finding against him would have meant that he could no longer work in his chosen profession. The Court of Appeal followed its earlier decision in Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health [2009] IRLR 829 CA [£], where it was found that a doctor who might have been "barred from employment in the NHS" was entitled to legal representation in disciplinary proceedings.

Cookies: who doesn’t love them? Probably Miguel Saez Sanchez, who was sacked by Aer Lingus after eating a “cannabis” cookie that led to bizarre behaviour from him at work, reports the Irish Times website.

Mr Sanchez - who is claiming unfair dismissal - ate what he thought was a chocolate chip biscuit at a friend’s party in March 2009, in Santa Monica. He also had four vodkas and a slimming pill banned by his employer. He claims he was “upset” on finding out that the cookie contained cannabis, and took a shower to feel better, during which he thought his friends were filming him.

The following day Mr Sanchez reported for work on a flight to Dublin feeling ok, but after take-off things deteriorated. He told his manager that two photographers were Aer Lingus “plants” and were taking pictures of him, and that passengers were leaving notes about him in the toilets. He also claimed that his body was “covered in lice and fleas”, which were also crawling under his skin, and at one point looked like he was going to get off the flight.

We round up what caught Tribunal Watch's eye on Twitter this week, including XpertHR research showing that the UK HR profession is 75.8% female, but only 42.5% of UK HR directors are female.

• UK HR profession is 75.8% female @MJCarty UK #HR profession is 75.8% female; but only 42.5% of UK HR directors are female: http://bit.ly/gL9TIR
• Government launches Red Tape Challenge @hrbullets am I the only one who thinks this "red tape "cutting exercise is a tad cynical and potentially pointless? http://bit.ly/e2eAIU
• Belief in "higher purpose" of public service broadcasting can be philosophical belief @mctigues shows that Court of Appeal guidance on what is/is not capable of amounting to a philosophical belief is clearly needed. http://ow.ly/4u3YJ
• Award against harasser substantially larger than award against employer @ljanstis my view is e'ers will increasingly seek to rely on stat defence when faced with outrageous behaviour by individuals http://ow.ly/4th2z
• XpertHR consultant editor Darren Newman on how he was involved in BIS's Agency Workers Regulations guidance @daznewman New Blogpost: Government guidance on Agency Workers Regulations: http://bit.ly/g1H2th. In which I am nice about BIS!

You can follow Tribunal Watch on Twitter. Have we missed something interesting on Twitter? Tweet us or leave a comment.

A round-up of links to news items on employment tribunal rulings in the week beginning 4 April 2011, including an employment tribunal award of £10,000 for a lesbian police officer who was harassed by her sergeant.

Lesbian police officer wins homophobic abuse case (on the BBC website) A lesbian police officer who suffered homophobic abuse from her sergeant has won her discrimination claim.

An employment tribunal has held that a former BBC employee’s belief that “public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion” is a philosophical belief for the purposes of discrimination legislation, in one of XpertHR’s latest tribunal reports.

Mr Maistry claimed that the BBC unfairly dismissed and discriminated against him on the grounds of age and his philosophical belief. The employment tribunal considered various preliminary matters such as time limits and a request by Mr Maistry to amend his claim form. The key issue that the tribunal considered was whether or not his belief fell within the definition of a “philosophical belief” for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (now replaced by the Equality Act 2010).

In the final entry in our series on particular aspects of the Government's employment tribunal proposals, we look at the controversial plan to increase the minimum length of service needed to bring an unfair dismissal claim from one year to two years.

What are the proposals?

The Government wants to extend the qualification period for employees to bring a claim of unfair dismissal from one year to two years.

Key points of the proposals

• The qualification period for employees to bring a claim of unfair dismissal is currently one year.
• The qualification period would be increased to two years.
• Other employment rights that are available from "day one" would be unaffected.

The employment tribunal in Maistry v BBC has given a preliminary ruling [free case report] that a journalist can proceed with his claim for religion or belief discrimination against the BBC on the basis that he has a belief that "public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion".

In what appears to be the widest application yet of the definition a "philosophical belief" under religion or belief discrimination, the employment tribunal applied the test in what is now the key case in this area, the EAT decision in Grainger plc v Nicholson [subscription required to access the individual reports].

The tribunal found that Mr Maistry, who relied on his journalism and trade union work dating back 40 years, does have a genuine and serious belief concerning "a weighty and substantial aspect of human life and behaviour" that has attained "a certain level of cogency, seriousness, cohesion and importance".

The Ministry of Justice has published statistics on the Tribunals Service's caseload for the three months to 31 December 2010 (PDF format, 133K) (on its website), including numbers on employment tribunal claims.

There was an 11% decrease (from 17,400 to 15, 500) in single claims from the same quarter the year before. Of the cases disposed of, 39% were for unfair dismissal, breach of contract or redundancy. A total of 33% of cases disposed of were conciliated by Acas; 30% were withdrawn; and 11% were successful at hearing.

A round-up of links to news items on employment tribunal rulings in the week beginning 28 March 2011, including an employment tribunal ruling that a group of oil-rig workers who were stuck on an offshore platform because of the ash cloud from the Icelandic volcanic eruption were entitled to extra pay.

Ash-delay workers win claim for extra cash (on the Press and Journal website) Offshore workers who became stranded on an oil rig during the 2010 volcanic ash cloud disruption have won their claim for extra pay.

We round up what caught Tribunal Watch's eye on Twitter this week, including amazement at a bill of over £257,000 for a woman following a series of employment tribunal claims and appeals.

• Extraordinary report of £250k costs award against employee @ljanstis Extraordinary report of £250k costs award against e'ee following series of tribunals/appeals http://ow.ly/4r0tP
• Evidence of case management discussions taking place on Twitter Thanks to @nb_cunningham and @reedmj for this timely news about conducting tribunal hearings via Twitter http://ow.ly/4qZl1
• Quarterly employment tribunal statistics released @ljanstis 51% fewer ET claims in Oct-Dec 2010 than Oct-Dec 2009 (but 2% more than 2008). 250% increase in age discrim: http://ow.ly/4qVYF
• Is there always a pay penalty for working part-time? @sarahwelfare Surprising statistic: part-time female professionals earn more per hour than full-time men http://bit.ly/fOtc44
• Personnel Today analysis of the potential impact of mass strikes @ptodlaura Should strike laws be changed with the UK facing potential mass strikes? http://bit.ly/htRl3F

You can follow Tribunal Watch on Twitter. Have we missed something interesting on Twitter? Tweet us or leave a comment.

An employee was held to have been fairly dismissed for posting abusive entries on Facebook about her employer’s customers, in one of XpertHR’s latest tribunal reports.

Miss Preece was employed by JD Wetherspoons plc as a shift manager at the Ferry Boat Pub in Runcorn, Cheshire. She was aware of the company’s policies regarding “blogging”, which expressly referred to sites such as MySpace and Facebook, and prohibited comments that might lower the company’s reputation or that of its customers.

On 24 May 2010, Miss Preece and a colleague were subjected to “a shocking torrent of verbal abuse and physical threats” by a group of people, particularly two customers known as Brian and Sandra. The two customers were asked to leave the pub, and later on a person suspected to be their daughter made a number of abusive and, in one case, threatening phone calls to Miss Preece at work.