A round-up of links to news items on employment tribunal rulings in the week beginning 21 November 2011, including a female worker at an Edinburgh visitor attraction who has won her claim for sexual harassment after being stalked on CCTV by a security guard.
Dynamic Earth wins sex harassment case (on the BBC website) A female worker at an Edinburgh visitor attraction, who was stalked on CCTV by a security guard, has won her case for sexual harassment.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 21 November 2011, a week in which there has really only been one story: the Government's announcement on how it going to proceed on major reforms to employment law and the employment tribunal system.
Among the proposals are:
It’s a good job that everyone’s now intimately familiar with the Equality Act 2010, because the next load of employment law changes are on the horizon. Yesterday, the Government announced what it called “the most radical reform to the employment law system for decades”.
Perhaps the most important change for employers in the near future will be the extension of the qualifying period for unfair dismissal protection from one to two years, due to take effect from April 2012. The Government seems to believe that this will help recruitment, as if employers make recruitment decisions based on the potential cost of dealing with a claim if things don’t work out - which is obviously ridiculous. It will, however, mean that employers will have a year longer to decide whether or not an employee is worth keeping without the risk of a “normal” unfair dismissal claim. I’d argue that if an employer is doing things properly then a year’s extension shouldn’t make any difference - how long does it really take to ascertain whether or not an employee is up to it? A cynic (like me) would say that it will give bad employers even more scope to treat employees unfairly. We’ll see next year.
Another big proposal is the Government’s planned consultation on the introduction of “protected conversations”, where an employer or employee can initiate a discussion about employment issues that cannot be used as evidence in a tribunal claim - sort of a statutory “without prejudice” discussion. Discrimination won’t be covered by protected conversations. I think that this is a terrible idea riddled with potential problems, and I certainly don’t envy the draftsman of the inevitable regulations that implement the concept. Read more about why they’re a bad idea, as well as some arguments in favour.
A round-up of links to news items on employment tribunal rulings in the week beginning 14 November 2011, including a Scottish worker in Cornwall who lost his claim for race discrimination over alleged "sweaty sock", "Scottie" and "Jock" jibes, but won over £20,000 for unfair dismissal.
Scottish worker loses Cornwall racism claim (on the BBC website) A Scottish worker has lost his claim for racism at a Cornish abattoir. But the tribunal accepted he had been unfairly dismissed with a "sham" disciplinary hearing, and awarded him £20,700 compensation.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 14 November 2011, including the news that the first individual to be convicted under the Bribery Act 2010 has been given a custodial sentence (on the Personnel Today website), with three years for bribery (along with six years for misconduct in a public office).
We have also had more reaction to XpertHR employment law editor John Read's blog giving the legal arguments for employers to have a social media policy.
The "Acas code of practice on disciplinary and grievance procedures" has almost certainly helped employers to avoid tribunal proceedings by providing clear but not overly rigid guidance on disciplinary issues. Nevertheless, we still see a substantial number of cases in which employers are found to have breached the Acas code.
Breaches of the Acas code of practice on disciplinary and grievance procedures: employment tribunal decisions [subscription required]
Employer approached disciplinary process with a "closed mind" In Doyle v European Trade Exhibition Services Ltd, the employment tribunal increased the compensatory award by 10% to reflect the employer's failure to follow the Acas code.
Failure to warn of dismissal risk was significant breach of Acas code In Gurnett v ASOS.com Ltd, the employment tribunal increased compensation by 10% because the employer breached para.9 of the Acas code.
Not dealing with grievance attracts 10% uplift in compensation In Johnson v Shamrock Franchise Management Ltd, the employment tribunal increased compensation by 10% on account of the employer's failure to deal with the employee's grievance in accordance with the Acas code.
Uplift of 15% for "fundamentally flawed" disciplinary process The employment tribunal held in Archer and another v Solvent Resource Management Ltd that the employer unreasonably failed to comply with the Acas code, in particular paras.6, 9 and 26.
Employer's many breaches of Acas code lead to 15% uplift The employer's dismissal process involved extensive procedural and substantive unfairness, held the employment tribunal in O'Farrill v New Manage Ltd t/a Hooks Gym London Shootfighters.
A round-up of links to news items on employment tribunal rulings in the week beginning 7 November 2011, including the unfairly dismissed manager of a London hotel's restaurant who claimed that he was ordered to replace "ugly, fat, old" staff with "young, sexy blondes in short skirts".
Hotel boss told to hire sexy blondes wins sacking claim (on the This Is London website) The manager of a London hotel's restaurant who claimed he was ordered to replace "ugly, fat, old" staff with "young, sexy blondes in short skirts" has been celebrating after a tribunal ruled he was unfairly dismissed.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 7 November 2011, including suggestions that, while radical proposals in the Beecroft report on introducing compensated no-fault dismissal may be a step too far, the Government is seriously considering a small-employer exemption for unfair dismissal and allowing employers to have "protected conversations" with staff.
Prime Minister David Cameron has confirmed that the Government intends to consult on allowing employers to have "protected conversations" with underperforming workers that would be inadmissible in employment tribunal proceedings.
In a speech on the Government's growth package for small businesses, Cameron said:
"And when it comes to making it easier to employ people, we are going to get to grips with some of the rules and regulations designed to protect employees, but which are actually stopping people getting jobs in the first place.
But if employers are so concerned about the prospect of being taken to tribunal that they don't feel they can have frank conversations with their employees many companies just won't feel able to create those jobs in the first place...
One businessman said he didn't have the time or the money to go through the hassle of removing people in the UK - so he hires in the US...
So we will be consulting on the introduction of protected conversations, so a boss and an employee feel able to sit down together and have a frank conversation - at either's request."
Employees’ use of social media is a hot topic in HR. It’s something that employers have not traditionally needed to deal with and, as it’s a relatively new area, everyone’s got a view on what employers should and shouldn’t do. Including me, hence this blog. Yesterday this blog caught my eye. It’s by Doug Shaw, and summarises a talk by Neil Morrison and Matthew Hanwell at the currently underway 2011 CIPD conference about social media entitled “HR, Harnessing the Power of Social Media”. Neil’s website doesn’t at the time of writing contain full details of his talk, but instead refers to Doug’s blog, so that’s what I’m working from, and from which the quotes below are taken. I’ll say now that if I’ve misconstrued any element of Neil’s talk then my apologies, and I’ll be happy to amend this blog as appropriate.
As a former employment lawyer, I want to make a few comments on the legal issues on the subject, with reference to some of Neil’s observations in his talk (as set out in Doug’s blog). None of what follows is any sort of attack on Neil, whose talk merely catalysed me into writing something I have been planning on anyway, and some of whose points I entirely agree with. But I think it’s important that employers and HR professionals realise that the issues that can arise from employees’ use of social media aren’t like those wooly, non-legal HR areas where it doesn’t really matter (legally speaking) what you do. On the contrary, they can have serious business and legal consequences for employers.
Employment tribunal claims in England and Wales for unfair dismissal that do not also include more complex claims like discrimination are to be heard in a one-day hearing within 16 weeks of being issued, after a successful scheme in Manchester (PDF format, 46K).
The new judicial listing policy in England and Wales, which has been highlighted by PLC Employment, means that claims for unfair dismissal claims and other "standard-track" claims (for example, unlawful deduction of wages), or a combination of standard-track claims, will be heard in a single day within 16 weeks of being issued. Parties unable to make the listed date will be free to apply for a postponement with the usual supporting evidence.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 31 October 2011, including an Employment Appeal Tribunal (EAT) decision (on the BAILII website) that an employee on sick leave is entitled to holiday pay only if he or she has actually taken the leave in respect of which the employee seeks to be paid and has done so by giving notice in accordance with the Working Time Regulations 1998.
A round-up of links to news items on employment tribunal rulings in the week beginning 31 October 2011, including a finding that Apple fairly dismissed a retail-store employee who violated company policy by posting derogatory comments about the company on Facebook.
Tribunal upholds Apple's firing of retail employee for critical Facebook post (on the Apple Insider website) An employment tribunal has upheld Apple's decision to dismiss a retail store employee who violated company policy by posting derogatory comments about his employer on Facebook.
New figures obtained by the Chartered Institute of Personnel and Development (CIPD) suggest that, in the 2010/11 tribunal statistics, only 277 claims were brought relating to technical breaches of the right to request flexible working. The majority of these were settled out of court and, of the 48 that went to tribunal, just 10 were successful.
An employee can complain to an employment tribunal on the ground that the employer failed to:
An employee may also complain to a tribunal if he or she believes that an application for flexible working has been rejected on a ground other than those permitted in the legislation or that the decision to dismiss was based on incorrect facts.
Rob McCreath, partner at Archon Solicitors, explains why the introduction of a law to allow employers to have "protected conversations" with underperforming workers could help to reduce tribunal claims, in a guest blog for XpertHR's Tribunal Watch.
Rob McCreath on "protected conversations"
Some barmy proposals have been made for employment law reform recently. They have rightly been torn to shreds by most HR and legal commentators. But the proposal that employers should be able to have "protected conversations" with employees about performance issues (and potentially other issues) could be beneficial, if implemented with care.
Stephen Simpson's blog on Tribunal Watch set out 15 reasons why he believes the proposal won't work. Before dealing with his points (many of which are entirely valid as questions), let me present a scenario that I expect will be familiar to many readers.
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