Rogers & Norton News

Employment Bulletin September 2015

Friday, September 11, 2015

Welcome

Unison’s challenge to the introduction of fees in employment tribunal cases has been rejected by the Court of Appeal.

The union’s General Secretary has described the decision as “a huge disappointment and a major setback for people at work”. But it seems that the fight continues, with the Supreme Court now in sight.

This news comes not long after Acas released statistics showing the effect that early conciliation, too, is having on claims. The organisation says that it received notifications covering more than 100,000 disputes during the first year of the early conciliation regime. In the first eight months, sixty three per cent of notifications did not progress to a tribunal claim. A further 15 per cent were settled through Acas. And, while 22 per cent did lead to a claim being issued, Acas conciliators have so far resolved more than half of those.

One thing is certain in all of this: tribunal hearing rooms are a lot quieter these days. But the debate continues around the reasons for this, and the pros and cons of fewer cases being brought.

Equal treatment of agency workers

Coles v Ministry of Defence

Agency workers have certain rights to equality of treatment at work. One of these is the right to be told about vacant positions that become available in the organisation they’re working in. It’s to give those temporary workers the same opportunity as direct workers to find permanent employment.

But how much security does this actually give agency workers? Where directly employed employees face possible redundancy, is it acceptable for an employer to give those members of staff priority when appointing people to roles that agency workers have been filling? Yes, according to a recent case.

The Ministry of Defence (MoD) had gone through a big restructure, with 530 direct employees having been placed in a redeployment pool. The job that Mr Coles was doing, as an agency worker, was advertised to staff. Priority was to be given to internal candidates in the redeployment pool, which excluded Mr Coles. He didn’t apply for ‘his’ role, and a permanent employee was appointed.

Mr Coles argued that there had been a breach of the Agency Workers Regulations because he had been denied the opportunity of applying for the position he had temporarily been occupying.

The Employment Appeal Tribunal (EAT) held that there was no breach. Agency workers like Mr Coles have the right to be told about vacant posts, but that’s as far as it goes. They don’t have the right to preferential treatment over existing permanent staff. The MoD had not breached Mr Coles’ rights by giving preference to those of its employees that were in a redeployment pool.

 Fair dismissal for Facebook comments
British Waterways Board v Smith

Another case emphasising the rise and rise of social media issues at work.

Mr Smith worked for British Waterways. He was found to have posted various derogatory comments on Facebook about his supervisors. He had also claimed, two years before the issues came to light, that he had been drinking alcohol while on standby duty. He was dismissed for gross misconduct. It was a trust and confidence issue.

Unfair dismissal, said that tribunal. Dismissal was outside the band of reasonable responses. The employer hadn’t factored in mitigation, including length of service. The comments had been made quite a while earlier and, in the years since, Mr Smith had shown that he could be trusted. There hadn’t been any more Facebook comments about drinking while on standby, and no issues raised by supervisors.

The Employment Appeal Tribunal disagreed, holding that the dismissal was fair. The tribunal had substituted its own views for the employer’s. The Facebook entries had been made, there had been a reasonable investigation, the employer had lost confidence in Mr Smith, and there was a fair procedure. The only proper conclusion could be that the dismissal was fair.

So, a lesson for employers and employees alike that social media comments linger and can potentially be a fair basis for dismissal years down the line. The important thing is to get the investigation, procedure and conclusions spot on. And to have a social media policy that makes clear what’s not acceptable.

 Acas guides

When it comes to getting to grips with equality and discrimination, there can never be too much help at hand. Acas has just issued a new set of best practice guides covering:

- the basics
– preventing discrimination
– dealing with discrimination.

They’re well worth a read. Find them at www.acas.org.uk/equality. There’s also an easily digestible video on discrimination and protected characteristics at www.acas.org.uk/equality.

And that’s not all. Acas has put together a guide to pay and wages. It’s aimed at small and medium-sized businesses and has some useful, practical information about handling issues – including paying staff during absence from work. You can find the content here.

Carrying over holiday

Plumb v Duncan Print Group

Where a worker has been on long-term sick and hasn’t used their holiday leave, they may be able to carry it forward to the next holiday year. But does this right hinge on the employee being able to show that they weren’t able to take the leave because they were ill?

It seems not. The Employment Appeal Tribunal (EAT) has held that an employee who had been off work for four years was entitled to be paid for some accrued but untaken holiday.

Mr Plumb had an accident in 2010 and was off work from then until his employment terminated in 2014. He had claimed 60 days’ holiday pay for 2010, 2011 and 2012. The original tribunal dismissed his claim, saying that he couldn’t show that he was unable to take holiday during those years while on sick leave.

The EAT held that an employee doesn’t need to show this. Where a worker hasn’t taken annual leave because of sick leave, they are entitled to take it within a reasonable period of the end of the leave year in which it accrued – which, in this case, the tribunal thought was 18 months. So Mr Plumb was entitled to payment for the holiday year that ran from 2012 to 2013. He couldn’t be compensated for earlier years because the tribunal only allowed 18 months’ of leave to be carried forward.

This might not be the final word on the subject. The EAT granted permission to appeal. So we shall have to wait and see what comes of this.

Indirect discrimination where no protected characteristic?

CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia

With a name that trips nimbly off the tongue, this case could be set to shake up employment law – discrimination aspects, at least.

It’s always been the case that indirect discrimination applies to people who have a protected characteristic like age, race, sex, disability. It’s where a provision, criterion or practice applies to everyone but it affects some people (those with a protected characteristic) more than others. But this latest case has potentially extended the scope of indirect discrimination to cover people who don’t have the particular protected characteristic. It could be a big deal and, while it’s a case that comes out of the European courts, it’s relevant to UK law.

The facts aren’t really what you’d expect an employment law bulletin to report; they’re about electricity pylons. A supplier in Bulgaria had raised the height of its pylons in a certain part of the country where most people were Roma – a distinct ethnic origin. There were concerns that the electricity network in that area was being tampered with and that unlawful connections were being made. But having the pylons at a greater height made it difficult for people to check their readings and monitor their usage. That was a disadvantage.

A shop owner in the district successfully argued the principle that, even though she wasn’t of Roma ethnic origin, she could be said to have suffered the same less favourable treatment. It’s a bit like associative discrimination, already a feature of direct discrimination. In future, a person may not need to share the relevant protected characteristic in order to bring an indirect discrimination claim.

Will we see a change in UK legislation to reflect the widening of indirect discrimination? Quite possibly.

Defects rectified on appeal?

Biggin Hill Airport v Derwich

Every disciplinary situation is an exercise in fairness. There’s no room for assumption or pre-judgment. The employee must know exactly what the allegation against them is, what evidence you have, and they should have time to take it all in and prepare their response for a disciplinary hearing.

Ms Derwich was invited to a disciplinary meeting relating to, among other things, the saved image of a witch as a screensaver on a supervisor’s computer. After the hearing her employer interviewed witnesses, but didn’t disclose the results of those interviews to Ms Derwich before dismissing her. She was given the evidence before her internal appeal, but the dismissal decision was upheld.

Ms Derwich’s unfair dismissal claim was initially successful. At the time she was dismissed, she didn’t know the charges she faced and hadn’t seen the evidence against her, the tribunal said.

But the Employment Appeal Tribunal overturned that decision. The internal appeal might have cured the earlier deficiencies, it said. Even if the charges hadn’t been made clear to Mr Derwich initially, she knew about them by the time of her appeal. She had been sent a copy of the disciplinary procedure, which referred to gross misconduct offences. She had also been given notes of all interviews in time to prepare for the appeal.

The case has now been sent to a fresh tribunal to decide whether or not the dismissal was unfair or wrongful.

Two main lessons: (1) don’t dismiss an employee before giving them all evidence relating to the allegation, and (2) if an employee elects to appeal the dismissal decision, be meticulous in your handling of it – especially if there were defects earlier in the process.

And finally…..

It made for an attention-grabbing headline: Harrods worker sacked for eating slice of chocolate cake loses £1million discrimination claim.

That’s how ITV opened its account of the employee’s unsuccessful tribunal case. One million pounds. Discrimination. Cake. Cue the widening of ears and eyes, and perhaps some salivation at the sight of the “Devil’s Dog Cake” at the centre of this story.

It seems that the Harrods employee had tasted/eaten (there’s a distinction) a piece of cake after a customer had complained of it being too dry. A rule appeared to have been broken. But of course there is much more to this story than meets the eye. Harrods is said to have dismissed the employee for theft and bullying, and the tribunal found against him when it came to his allegations of race, age and sex discrimination and unfair dismissal.

So this wasn’t about cake – not exclusively, anyway. It was an employer and employee in dispute over some fundamental workplace issues; issues that can arise anywhere, not just within the walls of luxury department stores.