July 2011 Archives

Rather unexpectedly, the Court of Appeal has used a judgment to launch a lengthy defence of the employment tribunal system. The observations were made by Lord Justice Mummery (a former president of the Employment Appeal Tribunal) in the Court’s judgment in Gayle v Sandwell & West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924, a long running saga involving a claim by Ms Gayle that she was penalised for taking part in trade union activities.

As readers will be aware, the Government is currently considering the results of a consultation on reforming the employment tribunal system, the proposals for which include simplifying the process, tackling weaker cases and encouraging settlements. Many of the proposals seem sensible (although I’m not sold on the two-year qualifying period for unfair dismissal).

Mummery LJ’s observations seem to have been made with this consultation in mind. He noted that, although reforms of substantive employment law are outwith the Court’s purlieu, issues of “procedural efficiency and justice” are of direct concern to the judiciary. Sitting judges are not especially prone to releasing press statements about their views on legal matters, and Mummery LJ seems to have seen the Gayle case as a good opportunity to make his strong feelings on the matter known, given the EAT’s statement (when rejecting all but one of Ms Gayle’s various complaints) that it was “a matter of great regret that so much public money and time has been spent on this matter”.

Acas has seen a 15% increase in the number of large-scale industrial disputes that it has been involved in over the last 12 months, with pay issues being by far the most common cause of collective disputes, according to the Acas annual report for the period from 1 April 2010 to 31 March 2011 (PDF format, 721K) (on its website).

The report says that, of the 1,054 requests for assistance in collective conciliation, pay-related issues (49%) were the most common, followed by redundancy (12%) and trade union recognition (11%). High-profile disputes conciliated by Acas involved employers like Network Rail, the BBC, London Underground and British Airways. Acas highlights that disputes concerning staff pensions became more common in 2010/11.

Employers that are looking to change employees' terms and conditions - typically, a change to working hours or a pay cut - as an alternative to making redundancies can now make use of XpertHR's new Liveflo entry [subscription required] taking you through the steps necessary to vary terms and conditions of employment.

It is extremely risky to impose a change unilaterally, so sensible employers adopt the safer approach of gaining the buy-in of their workforce to the change. But what if some of the workforce don't agree? As a last resort, the employer may have to consider terminating contracts with an offer of re-employment on the new terms.

A round-up of links to news items on employment tribunal rulings in the week beginning 18 July 2011, including a hairstylist who was fairly dismissed for deleted client appointments as revenge after rowing with her boss over holidays.

Toni & Guy hairstylist deleted boss's appointments, tribunal hears (on the Maidenhead Advertiser website) A top Maidenhead hairstylist deleted client appointments as revenge after rowing with her boss over holidays, an employment tribunal heard. The tribunal took just five minutes to make a judgment that she had been fairly dismissed.

We round up what caught Tribunal Watch's eye on Twitter in the last seven days, including bafflement at a ruling from the European Court of Justice (ECJ) on the justification for having a compulsory retirement age.

The ruling in Fuchs and another v Land Hessen Cases C-159/10 and C-160/10 ECJ (on the ECJ website) considers whether or not a German law that civil servants retire at 65 can be justified.

• Ruling on compulsory retirement age @daniel_barnett New bulletin: Confusing ECJ judgment on compulsory retirement age http://bit.ly/rdKcYm (comments welcome)
• Comment on the Fuchs @daniel_barnett Thanks to @ljanstis for his comment on the Fuchs case http://bit.ly/qx5osf
• Second class protection for age discrimination @DazNewman looks like the ECJ is consistently treating age as a second class discrimination right
• UK courts taking a stricter approach @adamturn ... whilst the UK courts and tribunals so far seem to be taking a harder line
• Helpful for employers? @david_jpalmer Fair to say that the general gist of Fuchs decision is probably helpful for employers justifying discriminatory retirements?
• Confusion reigns! @EmmaAtkins1 Anyone feel confident on the 'justification v age discrimination' debtate following ECJ Fuchs v Land Hessen?!

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

Photo: tjuel

A police worker was fairly dismissed for a single act of dishonesty outside work, in one of the latest tribunal cases reported by XpertHR.

Mrs Somers had worked in catering for the Metropolitan Police Authority for over 20 years, with a “perfectly blameless” record. One Sunday, an incident occurred at her home between her and her lodger that resulted in the police being called. Mrs Somers was taken to the police station and, when it came to dealing with the formalities of her release on bail, she gave false personal details. She said that her name was “Michelle Johnson” (her maiden name); gave an incorrect date of birth; and said that she had “never been employed”.

Within a few days, someone at Mrs Somers’ workplace had found out that she had been arrested. In an interview with the area manager, Mrs Somers admitted that she had been arrested and had given false particulars during her arrest. She was eventually dismissed, and claimed unfair dismissal.

A round-up of links to news items on employment tribunal rulings in the week beginning 11 July 2011, including a trainee who has been awarded £6,500 for sex discrimination after being driven from her job after being asked questions about her sex life.

Trainee forced from job after "1970s" bosses asked if she went dogging (on the Daily Telegraph website) A trainee recruitment consultant was driven from her job after being subjected to a litany of questions about her sex life - including an enquiry from her company's Salesman of the Year about whether or not she had ever been "dogging".

We round up what caught Tribunal Watch's eye on Twitter in the last seven days. Religion or belief discrimination has again hit the headlines, with more details of the Equality and Human Rights Commission's intervention in four cases involving religious discrimination in the workplace (on the EHRC website) and a case in which it was claimed that beliefs about an "evil" and "satanic" conspiracy behind 9/11 and 7/7 are a philosophical belief.

• EHRC on religion vs sexual orientation @MrsMarkleham On my blog: the EHRC quietly clarifies its stance on religion vs sexual orientation. http://wp.me/p12Ouj-3R
• Case law on religion is "confusing and contradictory"? @DazNewman The EHRC says that the case law on religion is 'confusing and contradictory'. http://bit.ly/n3ogTA Which cases conflict?
• What about basic employment rights? @AnyaPalmer While govt plans to remove basic employment rights from everyone, EHRC wants a new right for believers to pick & choose what work they do
• "Evil" and "satanic" conspiracy @TribunalWatch ET: Beliefs about "evil" and "satanic" conspiracy behind 9/11 and 7/7 not philosophical belief http://ow.ly/5D7XL
• Who decides what's an absurd belief? @paulcall1 and who decides what is absurd? Sounds very subjective to me
• Factual rather than philosophical beliefs @DazNewman yes I think it would have been better to regard his beliefs as factual (and wrong) rather than philospohical
• Pastafarians and jedi knights have rights too @AnyaPalmer Pastafarians [http://t.co/K7JJg1f]...Will the EHRC also take up the case of Jedi who don't want to remove their hoods in Tescos? http://t.co/Xm8PkFb @efdel

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

Photo: staticantics

In our blog about hair-related employment cases, one form of discrimination that was conspicuous by its absence was age discrimination. While discrimination cases specifically about a claimant's grey hair or baldness haven't yet arisen in the UK, an American woman in her 50s has claimed that she was dismissed for refusing to dye her grey hair (on the Guardian website).

Sandra Rawline, whose hair began to grey when she was in her 20s, claims that her Texan employer discriminated against her because of her age (and sex? would a man have been asked to do the same thing?). She claims that her boss approached her and told her that she should consider (among other suggested "improvements" to her appearance) dying her hair to fit in with the firm's desired "upscale image". She says that, when she refused, she was fired within a week and replaced by a woman 10 years her junior. She is now suing the employer for discrimination.

A round-up of links to news items on employment tribunal rulings in the week beginning 4 July 2011, including an employer in Wales that has been ordered to pay £390,000 in compensation for disability discrimination to a dismissed employee.

Claimant awarded £390,870.58 for disability discrimination (on the Jackson Osborne website) Welsh builders' merchant, Jewson Ltd, has been ordered to pay £390,000 in compensation for disability discrimination to a dismissed employee.

A nursery dismissed an employee whose husband was charged with child pornography offences, even though, as it recognised, she had done nothing wrong, in one of the latest tribunal cases reported by XpertHR.

Mrs S was employed as a nursery nurse by P Nursery Ltd, working in a small market town. It is a close knit town, and the nursery relied on word of mouth and personal recommendations for its reputation.

In December 2009, Mrs S told her manager, Mrs M, that her husband had been arrested for possessing indecent images of children. She explained this as a “simple misunderstanding”, to do with an email from a friend. Mrs M had no reason not to believe, at that stage, that there was an innocent explanation for the matter.

However, in May 2010, Mrs S informed Mrs M that the situation had become more serious. The police had found more indecent images of children, and were investigating whether or not Mr S had been involved in grooming a young girl, and whether or not one of the images involved Mr and Mrs S’s 18-month-old son.

We round up what caught Tribunal Watch's eye on Twitter in the last seven days, in a week when even the news that Shropshire Council is dismissing its entire workforce and re-engaging only those who agree to a pay cut (on the Personnel Today website) has been overshadowed by the sudden closure of the News of the World (on the BBC website).

• Redundancy issues for News of the World staff @MoragMof News of the World Closure: The employment law analysis http://t.co/FJyeXdc
• Claims for stigma damages? @TheLawyermag Could NotW staff have a case for "stigma damages"? Read 11KBW's opinion here: http://bit.ly/rhGWf7
• NOTW workers' battle begins @DeferoLaw The end is nigh for the News of the World - for NOTW workers the battle is just beginning http://ning.it/olbFcT thanks to @phbargatemurray
• NOTW tricky employment law issues (1) to (3) and NOTW tricky employment law issues (4) and (5) @ (1) how to pool/bump across Group; (2) TUPE to Sun on Sunday?; (3) Malik v BCCI style claims for damaged reputation? (4) Can Rebekah Brooks investigate her own alleged wrongdoing? (5) Payments to Police now outlawed by Bribery Act
• Consultation needs to be about avoiding redundancies @DazNewman Closing NOTW doesn't mean redundancy inevitable - so consultation need only be about avoiding redundancies, not closure of paper.
• Will "dismiss and re-engage" be next season's look? @FlipChartFT Cutting pay - councils threaten the nuclear option: http://t.co/jff7Rqb

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

Photo: anniemole

Our round-up of employment tribunal claims on whistleblowing [subscription required] shows how employers might face employment tribunal claims from whistleblowers.

XpertHR's tribunal reporting service provides regular summaries (and, for subscribers, PDF judgments) of interesting tribunal decisions.

Newspaper packer claimed colleague was drunk at work

Nelson v Smith News Trading Ltd

What happened in this case?
Mr Nelson, an early-morning packer of newspapers, claimed that a colleague with whom he got into an argument was drunk. He demanded that the managers do something about it and, when they refused, he submitted a grievance claiming that he had been bullied, harassed and victimised and that there had been a breach of health and safety when his requests for a formal investigation into his fellow worker's conduct had been ignored.

Read what the employment tribunal decided in this case.

More can still be done to encourage early resolution of disputes and increase small employers' awareness of the "Acas code of practice on disciplinary and grievance procedures", reports research evaluating the code's impact in its first few years (PDF format, 551K) (on the Acas website).

The research paper attempts to assess understanding of the code, which replaced the rigid statutory dispute resolution procedures in April 2009, by conducting a number of in-depth interviews with employers, employee representatives and employees.

A sales assistant at the HMV department in Harrods claims that she was forced to resign after she refused to wear make-up, in contravention of the store's strict dress and appearance policy, reports the Guardian website.

Melanie Stark, who was described as a model employee, worked in Harrods. She complied with the store's detailed dress and appearance code in all other respects except the absence of make-up. The issue was raised by managers after they conducted a floor walk of the store. Stark was sent home and later put to work in the store room. She resigned after the dispute escalated.

We round up what caught Tribunal Watch's eye on Twitter this week, including two of Baby P's social workers being granted leave to appeal against the employment tribunal judgment that they were fairly dismissed.

• Baby P social workers to appeal @TribunalWatch Two Baby P workers claiming UD given leave to appeal to EAT, partly due to Shoesmith CA decision http://ow.ly/5uwsa
• Diplomat awaits disability ruling @yorkshirelawyer Disabled employee awaits ruling on £300,000 http://t.co/25V2iQJ
• Employers warned over parents affected by strikes @PTodlaura Employers warned not to take hard line with parents affected by strikes http://bit.ly/k9gdjD
• What will Supreme Court ruling mean for GMC or FSA? @TarunTawakley Will today's SC decision(no right to lawyer at disciplinary, as sex offender list decision distinct) apply in context of GMC or FSA?
• How to get a dismissal letter wrong @MLaverTozersLLP An abject lesson in how to get a dismissal letter wrong and end up paying notice pay twice: http://t.co/mBhyEcX

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 27 June 2011, including an award of £21,000 in the remedies hearing of a woman who was subjected to sex discrimination that was compared to the banter in the Carry On films.

£21,000 payout for victim of sexist "Carry On" boss (on the Metro website) Office manager Christine Minto turned into "an unwilling Barbara Windsor" by a sexist boss whose behaviour was compared to "Carry On" actor Sid James, has been awarded £21,000.

How would you feel if you were forced to adopt an alias or fake name at work? It sounds absurd, but it’s precisely the situation in which an employee found himself in one of the latest tribunal cases reported by XpertHR.

Mr Rahul Jain, who is of Indian ethnic origin, started work for Teachers 2 Parents Ltd, a software company, in September 2009. On his very first day at work, he was (on his evidence) told that he had to adopt a fake anglicised name before he could start his telesales role. The company’s explanation for this was that, in its early days, emails had gone missing due to customers misspelling employees’ email addresses - and to address the problem, it had permitted staff to use fake names instead of their real ones.

After his initial protest fell on deaf ears, Mr Jain didn’t feel as though he had any choice in the matter, and assumed the name “Rob”. Later, when a potential customer asked him for his surname, he invented “Matthews” to fit his fake first name. Mr Jain didn’t raise the matter again until September 2010, but neither party took the issue further at that stage.

Matters came to a head when Mr Jain was put at risk of redundancy in November 2010. In a letter complaining that his redundancy was a sham, he suggested that a court might view the company’s policy of forcing staff of Indian race to adopt anglicised names as race discrimination. After being dismissed, he claimed race discrimination.

With the frequent press reports of religious discrimination claims in employment tribunals and disputes at work over religious beliefs, HR professionals would be forgiven for thinking that it's a major issue for employers. But annual statistics from the Tribunals Service suggest that employers should be much more concerned with ensuring that their practices are free from age bias and their employees' behaviour doesn't constitute age discrimination.

The general trend in the figures, which cover the period from 1 April 2010 to 31 March 2011, is that most types of claim have gone down or stayed roughly the same. For example there has been a fall in the number of unfair dismissal from 57,400 to 47,900 and an overall decrease in single claims across all jurisdictions of 15%.

While employers should of course be aware of the potential for religious discrimination claims (which decreased from 1,000 to 880), they are more likely to face an age discrimination claim. Age discrimination claims have been rising steadily in the last few years, with claims up from 3,800 in 2008/09 to 6,800 in 2010/11.