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Nicholson v Hazel House Nursing Home Ltd – A guide to constructive dismissal and maternity discrimination

Hello and welcome back to your weekly case law update. Last week we examined the role of the ACAS Code of Practice in ill-health dismissals. This week we will be looking at constructive dismissal and maternity discrimination. The facts of this case mean it is essentially a beginner’s guide to constructive dismissal and maternity discrimination issues.

Today’s questions:

Can reducing a pregnant employee’s hours amount to discrimination?

Can discouraging a pregnant employee from attending an ante-natal appointment amount to discrimination?

Does a failure to handle a grievance properly create circumstances in which an employee could resign and claim constructive dismissal?

Ms Nicholson, the Claimant, was employed by Hazel House, the Respondent, as a Care Assistant. The Claimant was contracted to work 18 hours per week but nearly always worked significantly more hours than she was contracted for.

The Claimant became pregnant and began suffering from severe morning sickness resulting in her missing some shifts. She requested to have her shifts moved into the afternoon and the Respondent accommodated this request.  However the Respondent, without consulting the Claimant, then reduced the amount of shifts to the point where she would no longer be eligible for Statutory Maternity Pay. The Respondent did not tell her she was no longer eligible for SMP.

The Claimant was also required to attend a training course, however she was due to have her 20 week scan on the day of the training course. The Respondent told her that if she could not attend the course then she would be suspended until she had arranged for alternative training.

Instead the Claimant began her maternity leave early and took annual leave to prevent being suspended, at this point the Respondent told her she was not entitled to SMP. The Claimant raised a grievance about the previous events and the Respondent appointed a manager who had been directly involved in the incident to handle the grievance.

The grievance was then handed to a different manager who rejected it without speaking to the Claimant. The Claimant appealed the decision by email but the Respondent denied receiving this. The Claimant then resigned but did not include the grievance in her resignation letter.

The Claimant claimed unfair constructive dismissal and maternity discrimination against the Respondent. However, the ET held the SMP incident and grievance handling did not amount to circumstances that the Claimant could terminate her contract due to the Respondent’s conduct.

The Claimant appealed and the EAT accepted her appeal. It held that the ET had misdirected itself and substituted its decision with a finding of unfair constructive dismissal. It held that on the facts of the case there could really be no other finding.

The takeaway point from today:

A failure to handle a grievance properly can amount to circumstances that prompt constructive dismissal. Furthermore, an employer who treats an employee less favourably due to pregnancy, maternity or paternity will be liable to discrimination claims. This is a textbook example of what not to do.

If you enjoyed this post, please share it. For more cases click here, or, for advice on employment issues click here.

Posted: Jul 15, 2016 by admin in Employment Tribunal, Unfair Dismissal

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Holmes v Qinetiq Ltd – Can an employee who wins their unfair dismissal claim be awarded an uplift by the Tribunal if the employer failed to follow the ACAS Code of Practice?

Good afternoon, last week our newsletter examined a fairly eventful month for employment law (whatever you do don’t mention the referendum), there were features on Modern Slavery, flexitime as well some other interesting topics. This week’s case concerns ill-health dismissals and tribunal awards.

Today’s questions:

Can an employee who wins their unfair dismissal claim be awarded an uplift by the Tribunal if the employer failed to follow the ACAS Code of Practice?

Should they be awarded an uplift if the unfair dismissal wasn’t conduct related?

Mr Holmes, the Claimant, was a security guard for Qinetiq Ltd, the Respondent, and had been employed by them for nearly 18 years. Due to hip, back and leg problems the Claimant had large periods of time off sick towards the end of his employment.

Due to these absences the Respondent initiated capability proceedings against the Claimant. However it failed to obtain an up to date occupational health report which would have confirmed the Claimant would have been able to return to work following an operation.

The ET held, and the Respondent conceded, that the dismissal was unfair. However, despite not following the ACAS Code of Practice for Disciplinary and Grievances the ET did not award the usual uplift to the Claimant’s award.

The ET’s reasons for this were:

The Code does not apply to dismissals relating to ill health

Medical incapacity is not a conduct issue

But for his illness the Claimant’s conduct or performance were not in question

The Claimant appealed and the EAT rejected the appeal. It held that as the Claimant was dismissed due to ill health and not due to performance and/or conduct then despite the dismissal being unfair the ACAS uplift was not applicable as it was not a disciplinary or grievance issue.

The takeaway point:

A dismissal due to ill health will not be liable for a tribunal award uplift as it is not conduct related. However, as the dismissal is still unfair some compensation is still due.

To read more on unfair dismissal click here. If you enjoyed this article please forward it on or share it.

Posted: Jul 8, 2016 by admin in Employment Tribunal, Unfair Dismissal

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EU Brexit – What to expect

Hello and welcome back to your monthly employment law update. To put it lightly, it has been a busy month, the country’s EU status, current prime minister, footballing success and, hopefully, your underwear have all changed since our last newsletter. Furthermore, and despite Britain opting to leave the EU, it has also been a busy month for employment law and we hope to keep you abreast of all the latest changes.

Our first task this month will to be address the elephant in the room that everyone is tired of talking about. Britain, or rather rural England and Wales, has opted to leave the EU. Our previous posts on this topic outlined what may happen in the event of a Brexit but at the time of writing, (27 June 2016) no coherent strategy has been announced.

As things stand Article 50 of the Lisbon Treaty has not been triggered. If Article 50 is exercised that gives the UK two years to negotiate an exit from the EU. From a HR prospective that leaves things pretty up in the air for many companies with either EU employees or EU offices.

In areas such as construction, healthcare and education there may even be a labour shortage and any employer with EU migrant staff may need to draw up a contingency should these staff not be eligible for a visa under a points based system that is being proposed.

Many other businesses are also considering redundancies due to the anticipated loss of revenue but that may be premature depending on the outcome of any trade agreement. Hiring may also be postponed as the full aftermath is assessed.

In any event with no clear outline of how or when we will leave the E.U, it is highly likely the ramifications of the decision will not be truly known for several years.

Posted: Jul 4, 2016 by admin in E Learning

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Football crazy but not sacking mad – ACAS Euros advice

In lighter yet ironically equally European news, you will undoubtedly be aware that the European Football Championships kicked off this month. Unlike previous years Wales, Northern Ireland and the Republic of Ireland all qualified as well as England. Furthermore countries such as Poland, Portugal, Romania and Hungary also qualified all of whom have sizeable migrant populations in the UK.

Many of the games, including England’s recent encounter with Wales, are during working time. In light of this, ACAS has published guidance for employers encouraging employers to be flexible with staff wishing to watch the games.

The advice includes allowing flexitime requests for game days, temporarily relaxed policies for TV, Radio and Website use as well as less severe sanctions for any staff who watch the games.

Sir Brendan Barber, chair of ACAS, said “Employers should have a set of agreements before kick-off to help ensure their businesses remain productive while keeping staff happy too. Our guidance can help managers get the best from their teams, arrange substitutions if necessary and avoid unnecessary penalties or unplanned sendings off.”

If that isn’t enough tenuous puns in a sentence for you then I don’t know what is! For more football related articles click here.

Posted: Jul 4, 2016 by admin in E Learning

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Sports Direct – Gulag like conditions

It probably isn’t a shock to hear that Mike Ashley, owner of Sports Direct, isn’t a very nice boss. Well now a recent summons before parliament can prove those suspicions. Not only were staff often being paid an illegal wage there is also evidence of:

-  Staff living in fear of their jobs

-  Incidents of ambulances being called out, including to deal with miscarriages and a birth

-  Staff being docked pay for being one minute late for work

-  Harsh punishments for chatting and long toilet breaks

-  Staff being regularly searched in case of theft

-  Staff not being allowed to wear over 802 brands of clothing to work

-  Staff being expected to walk for miles each day

-  Allegations of temporary staff being awarded full time positions in exchange for sexual favours

Mr Ashley’s defence was that he ‘was not Santa Claus’ and that he was hard working businessman who couldn’t keep on top of everything happening in his business.

The lesson for any employer from this scandal is that in any business, particularly a big one, malpractice and poor ethics will always come to the public’s attention. It is up to HR to set a strategic vision on values and behaviours and then use HR processes to ensure those values are recognised and adhered to.

Posted: Jul 4, 2016 by admin in E Learning

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Modern Slavery – Courts can now award victims compensation

In the recent case of Taiwo v Olaigbe and another; Onu v Akwiwu and another, the Supreme Court has stated that the Modern Slavery Actshould be extended to allow the courts to award compensation.

Two Nigerian women, Ms Taiwo and Ms Onu, came to the UK on a migrant domestic worker visa to work for couples living in the UK. Both women had their passports taken off them upon arrival and were both expected to work excessive hours. Furthermore each was treated with contempt and threats were made against them should they try to leave.

Both women bought race discrimination claims but they were unsuccessful because the courts held that they were not treated differently because of their race but rather because of their immigration statutes.

After numerous appeals the High Court held that despite the disgraceful treatment the Claimants received there wasn’t actually any remedy the court could offer. However, they did suggest that the Modern Slavery Act be extended so perpetrators had to compensate the victims of modern slavery.

Whilst this is an extreme example it is an example of how severe cases of poor treatment may be treated as modern slavery.

Posted: Jul 4, 2016 by admin in Employment Tribunal

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Tabloid HR – Sacked over leaflet in locker

Every month we aim to bring you the most absurd sacking that has made a splash in tabloid journalism. This month a waiter for one of London’s most exclusive restaurants, part of the five star Melia ME Hotel has been dismissed for gross misconduct after a leaflet with information about fair tipping and the right to join a union was found in his locker.

The restaurant in question was recently found to have used tips as a means of topping up managers’ salaries and the incident follows a recent pledge by business secretary Sajid Javid to end unfair tipping practises.

Posted: Jul 4, 2016 by admin in Unfair Dismissal

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Santos Gomes v Higher Level Care Ltd – Working Time Regulations

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In PJH Law’s last case of the week before the referendum, we have a case involving law derived from an European Directive and interpretation of both the EU Directive and the UK implementation of that directive.

Santos Gomes v Higher Level Care Ltd – http://www.employmentappeals.gov.uk/Public/Upload/16_0017rjfhEHRN.doc

The Working Time Directive is an EU directive which sets out workers’ rights relating to working hours, breaks and holidays. This directive was implemented in the UK by the Working Time Regulations 1998.

This week’s question is:

Does regulation 30 of the Working Time Regulations 1998 confer an entitlement to compensation for injury to feelings on a Claimant who succeeds in a claim under the Working Time Regulations 1998?

The Claimant brought claims for compensation for failing to allow her rest breaks and thereby allegedly damaging her “health and well-being”. The Tribunal found that the Claimant had not been allowed to take her rest break of 20 minutes in shifts of over 6 hours’ duration and awarded £1,220 compensation (that amount was agreed between the parties for pecuniary loss), but nothing for injury to feelings.

The Claimant appealed to the EAT seeking further compensation to cover the injury to her feelings. The appeal was dismissed.

This week’s answer is therefore:

The Working Time Regulations only allow for pecuniary losses to be claimed and that is consistent with the EU directive.

Employers can therefore breathe a sigh of relief that employees need to show some pecuniary loss to make a claim in relation to not getting rest breaks to be worthwhile and therefore aren’t likely to see an increase in claims brought under the working time regulations as a result of this decision.

 

Posted: Jun 17, 2016 by admin in Employment Tribunal

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Should I stay or should I go now? EU Referendum FAQs

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In order to help you decide which way to vote in the forthcoming referendum, our case of the week relates to answering a number of questions relating to the legal mechanisms for withdrawing from the EU.

Where are we now? 

We are a special member of the EU in that we have full access to the Single Market and a full say in the decision making process, but have opted out of the Euro  and the Banking Union. We have opted out of the Schengen border free area, and can opt out of any rules on Justice and Home Affairs. We have just been granted a new settlement whereby we can put rules in place regarding access to benefits to newly arrived EU workers. We have also opted out of “ever closer union.” We therefore have an unique membership of the EU, in that we are a member but have opted out of some of the benefits or burdens of membership.

How does the UK leave the EU? 

Under Article 50 of the Treaty on European Union a member state has to negotiate withdrawal of the EU with the remaining members. If there is no negotiated agreement to leave then membership ends automatically after two years. The UK could have individual bilateral agreements with 27 member states but that would depend on whether member states are willing to engage on an individual rather than collective EU level.

What about our obligations whilst negotiations are ongoing? 

Our obligations would continue although an UK Parliament could decide to abrogate our obligations in full or in part.

Brexit!

What would a negotiated deal post exit  look like? 

There seems to be 3 broad options as advanced in the White Paper on options post exit:

Option 1: Just be a member of the European Economic Area [EEA] like Norway or EFTA like Switzerland, Iceland and Liechtenstein. We would still have to allow free movement of people and would still have to contribute to the EU budget. We would have considerable access to the single market in all areas except agriculture and fisheries.

Option 2: Negotiate bilateral agreements with the EU which Canada has done. That negotiated agreement has taken 7 years to conclude. It is not yet signed. The Canada agreement allows limited access to the Single Market. Canada has to comply with EU rules when exporting to the EU.

Option 3: If no agreements  are reached then the default position is the World Trade Organisation (WTO) rules. We are a member of the WTO and would trade with the EU in accordance with WTO rules.

Summary of options: (Click to enlarge)

eu chart 1

Posted: Jun 10, 2016 by admin in E Learning

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Lamb v The Business Academy Bexley – Can a Failure to Properly Investigate a grievance Amount to Disability Discrimination

bullying

Hello and welcome back to your weekly case law update. Last week’s newsletter examined the impact of leaving the E.U on HR and explained new Gender Pay Gap Reporting developments. This week’s case concerns bullying, grievance investigations and disability discrimination.

The question today:

Can a failure to properly investigate a grievance amount to failure to make reasonable adjustments?

Ms Lamb, the Claimant, was a primary school teacher for The Business Park Academy Bexley, the Respondent. Following some performance issues and incidents of bullying the Claimant began a period of sickness absence and made a complaint to the Respondent about bullying. Her doctor’s note stated she was depressed due to the bullying she received.

Following some clear the air talks a miscommunication involving how the grievance should progress meant the Claimant was asked to resubmit her grievance in writing. The Claimant believed her previous complaint was sufficient grounds to investigate and this triggered another period of absence due to depression and PTSD.

The Respondent appointed a new HR manager to handle the issue and he wrote to the Claimant asking for her thoughts on the previous investigation before proceeding to reinvestigate the issue. The Claimant was dismayed at the prospect of further investigation as she wished for the matter to be resolved. At this point Occupational Health diagnosed her with resolving reactive depression which she would not recover from until the grievance had been concluded.

The Respondent rejected the grievance citing the Claimant’s performance being the operative cause of the perceived bullying. The Claimant appealed believing the evidence had not been properly examined but, following a further delay in investigations, this was also rejected. By this point it had been over 15 months since her initial complaint of bullying.

The Claimant was dismissed and tribunal proceedings ensued. The Claimant alleged that her grievance had not been fairly or properly investigated which meant she was unable to return to a safe and discrimination free environment, which amounted to a failure to make reasonable adjustments.

The ET rejected the claim, stating that the Respondent’s decision to reject the grievance was a one off decision and the Claimant should have returned to work. The Claimant appealed and the EAT allowed the appeal. It held that had the issue been dealt with promptly and adequately there is every chance the Claimant could have returned to work, furthermore, this delay exacerbated her disability which made it difficult for her to return. The claim was remitted back to a different tribunal to be reheard.

The takeaway points:

Yes, failing to properly investigate a grievance can amount to a failure to make reasonable adjustments. In this case the delays and miscommunication, coupled with the Claimant’s bullying related disability, meant the grievance procedure put the Claimant at a disadvantage which was potentially discriminatory.

Some readers might have noted that the grievance was eventually resolved, albeit with a decision that the Claimant was not satisfied with. The Tribunal indicated that whilst the Claimant in this case was hoping for a different outcome a reasonable investigation should be prompt therefore the dismissal may have been fair if the response to the grievance had been swifter.

This case is a prime example of having an effective bullying and harassment policy and also a clear grievance investigation procedure. If you enjoyed this post please forward it on, or, read more on disability discrimination or bullying and harassment.

Posted: Jun 3, 2016 by admin in Unfair Dismissal

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