Perhaps the least surprising revelation this year is that there is evidence that FIFA may be corrupt. The recent FBI investigation into alleged institutionalised corruption at FIFA has resulted in the arrest of 18 officials and also culminated in FIFA President, Sepp Blatter, resigning.
There are currently ongoing investigations into allegations of bribery and racketeering which has resulted in the allocation of; major tournaments, television rights and funding for sporting infrastructure and stadia. Furthermore the Irish FA was paid $5 million to not take legal action against France over a dubious handball decision in a crucial game.
The UK has now also begun proceedings against Football’s governing body. Under the Bribery Act 2010 any business that is incorporated or trades in the UK is liable for prosecution if it is found to have broken the law. The Act covers bribery committed by an organisation, or on its behalf, anywhere in the world.
It is one of the world’s toughest anti-corruption laws and bribery offences now carry a penalty of up to 10 years’ in prison. The punishment for business and corporations is equally serious with unlimited fines a potential consequence.
Bribery can include many common business practices, such as providing clients with gifts, hospitality and entertainment on a quid pro quo basis. The Act provides for corporate and personal criminal liability by introducing four new criminal offences; bribing another, being bribed, bribing a foreign public official, and failure by a commercial organisation to prevent bribery.
Following on from the recent arrests FIFA will need to make sweeping reforms to remove the bribe culture that is currently embedded into the organisation. With more arrests expected over the coming months be sure to watch this space. If you would like a policy review for bribery then please click here.
Posted: Jun 30, 2015 by admin in Retirement
The European Union has been a contentious issue in the UK from practically the day we joined. However with David Cameron promising a referendum there is a real possibility that the UK might leave the E.U in the near future..
Here are some of the impacts an European separation might have on employment law.
1. Family Friendly Rights
Rights for new and expecting parents are often criticized for not being business-friendly. Recent legislation such as Shared Parental Leave can create both financial and logistical problems for smaller businesses and there is also often a lot paperwork and box ticking involved in family friendly policies.
Whilst an exit from the E.U would in theory allow the UK to repeal current family friendly laws the reality is it would be unlikely that family friendly rights would be scaled down or repealed, for larger firms in particular, family friendly policies are a way of attracting and retaining talented staff.
2. Discrimination Rights
Discrimination rights are often criticised, particularly by smaller businesses, as being very expensive largely due to the cost of implementing reasonable adjustment in both employment and recruiting. Whilst many of the protected characteristics are imposed by the E.U law, some, including race, sex and disability discrimination laws were in force before the UK was required to implement them by the EU.
Whilst it is unlikely an exit from the EU would result in the UK scrapping all discrimination law it would mean that there could be a cap on tribunal awards for discrimination claims, something which E.U law currently prevents.
3. Working Time
This is the topic where most change is likely should Britain leave the EU. The Working Time Directive currently allows a maximum of a 48 hour working week and also sets strict time keeping restrictions. This is a directive that was not in place before joining the E.U so could be amended upon leaving, however it would be met with fierce opposition.
Furthermore the recent Lock v British Gas and Bear Scotland holiday pay cases could be overturned by UK statute.
Finally Agency workers would no longer have the same rights as regular employees. This would allow a more flexible and cost effective flexible labour market. These changes whilst unpopular with employees would be perfectly implementable as they are all results of EU directives.
Considering the in/out referendum will be a big issue for small, medium and large employers it is something worth bearing in mind should the referendum be next year.
Posted: Jun 30, 2015 by admin in Age Discrimination, Religious Discrimination
Case of the week is back and no it isn’t a sequel to V for Vendetta. This weeks’ case is about inappropriate conduct and Polkey deductions.
Can a Claimant who hasn’t committed gross misconduct still be fairly dismissed for it.
The Claimant, V, was a Caretaker at a primary school run by Hertfordshire County Council, the Respondent. He was 60 years old when he began his employment and as part of his job he regularly came into contact with children throughout the day
The Claimant was involved in several incidents which could be construed as inappropriate, including;
- Whilst fixing some toilet plumbing during lesson time a young pupil walked into the toilets and the Claimant was alone with him for some time.
- Whilst fixing a bench at break time the Claimant was hugged by two young children, supposedly after being invited to do so by the Claimant.
- The Claimant was observed by the head teacher staring at young pupil during assembly
- Repairing a child’s guitar and giving her a new case as a present.
- Giving copies of a story he had written to children as presents.
The school became aware of these incidents and was concerned about the Claimant’s conduct, particularly the second incident as it involved emotive physical contact. The Claimant was suspended and the Respondent also involved the police in the investigation.
The police search into computer, phone and employment records came back negative and the Respondent was advised that he was a gentle man who did not necessarily understand how friendly behaviour from an older man could be misconstrued.
Nonetheless the Respondent conducted a disciplinary hearing and the Claimant was dismissed for gross misconduct. The disciplinary process was conducted poorly, most notably the deputy head teacher misrepresented the above toilet incident to make it seem as if the Claimant had followed the pupil into the toilets.
The Claimant appealed the decision and after this was rejected the claim was heard before an Employment Tribunal. The ET held that the Claimant had been unfairly dismissed as he had not actually committed any misconduct and that the disciplinary action taken against him had also been unfair.
The ET did decide that had the Claimant been dismissed for some other substantial reason instead of gross misconduct then the dismissal would have been fair and thus applied the Polkey (contributory fault) test to reduce the Claimant’s award by 100%.
The Claimant appealed the decision and EAT accepted this appeal but was unwilling to determine how much compensation the Claimant was due and remitted the claim back to Tribunal for fresh consideration, which has yet to be decided.
Be careful what you give as reason for dismissal. Had the Claimant in this case been dismissed for some other substantial reason, such as a breach of trust, then the dismissal would have been fair.
Posted: Jun 26, 2015 by admin in Unfair Dismissal
Hello again, we are back with another case fresh from the judge’s mouth.
This week’s case concerns stealing and racial discrimination.
The question this week is:
When an employee is caught stealing is it ok to investigate employees of the same race/nationality?
The Claimant, Mr Ilyas, was a receptionist for the Respondent, CP Regents Park Two, at one of their hotels. The company had a racially diverse workforce, but only the Claimant and another employee, Mr Ahmed, were Pakistani.
Mr Ahmed was dismissed and later arrested for misappropriating company money. The Respondent then held an investigatory meeting with the Claimant who had also been implicated. No notice was given to the Claimant that a meeting was going to be carried out but the Respondent claimed this was to prevent the investigation from being contaminated.
The meeting was rather aggressive and the Claimant was accused of colluding with Mr Ahmed to steal money. He was told he was stupid and a liar and the Respondent was also threatening and intimidating about the Claimant’s visa status. Furthermore the Respondent also made remarks about both the Claimant and Mr Ahmed coming from Pakistan.
The Respondent did interview other members of staff about the misappropriated money but these interviews were not as hostile and the employee’s nationality/race were not mentioned. The Claimant was the only employee suspended and a disciplinary investigation was carried out.
This investigation was unbiased but the Respondent still dismissed the Claimant for fraudulent behaviour in relation to irregular financial transactions. The Claimant appealed the decision but was unsuccessful.
His race discrimination claim was successful at tribunal as the ET believed the outcome of the initial investigatory meeting was pre-determined due to the racial connection between the Claimant and Mr Ahmed. The ET also ruled that the Claimant was treated less favourably in the disciplinary process for the same reason.
The Respondent appealed the decision and the EAT allowed the appeal in part. It held that whilst there were material differences between the Claimant and other members of staff investigated, including his position and implication in fraudulent transactions.
The EAT also stated that the fact the Claimant was Pakistani was not the reason for his dismissal, if the Claimant had been Austrian and Mr Ahmed had been Austrian then the outcome would have been the same as the shared nationality was a fair reason to enquire about a possible connection. However it did conclude that the investigation was pre-determined and unnecessarily aggressive.
To answer today’s question
Sort of, it is reasonable to question suspected employees about a shared nationality. However there must be material differences, other than race, between the suspected employee and other members of staff. In this instance had the Claimant not been implicated in the fraudulent dealings then it would have been completely unfair to assume he was implicated in the fraud.
Posted: Jun 19, 2015 by admin in Unfair Dismissal
Welcome back! Case of the week is back and this week’s case has enough drama to parallel any story line on EastEnders.
The questions this week are:
Is an employee obliged to report allegations of misconduct made against them outside of work under implied terms of their contract?
Can a part time employee be dismissed for having a second job on days they are not contracted to work?
The Claimant, Mr Amadi, was employed by the Respondent, Basildon Academies, as a cover supervisor. He was part time and only worked Thursday and Friday.
The Claimant was then offered additional work at Richmond and Thames College for the days he did not work at the Respondent. This was a breach of his contract and the Claimant did not inform the Respondent of his second job.
The Claimant was then suspended by Richmond and Thames College following an allegation that he had sexually assaulted a female pupil. The allegations were reported to the police and the Claimant was arrested. The Claimant was not charged and it is believed that the allegations were fictitious.
Three months later the police informed the Respondent about the allegations against the Claimant. He was suspended and the Respondent dismissed him citing both the failure to inform the Respondent about the allegation of sexual misconduct and his second job as acts of gross misconduct.
The Claimant won a claim for unfair dismissal at the Employment Tribunal however his award was reduced by 30% after the tribunal found his failure to disclose his second job as contributory fault to his dismissal.
The Respondent appealed the decision but the EAT rejected the appeal citing the fact that there was no express term in the Claimant’s contract that required him to report any allegation made against him outside of work.
To answer todays questions:
No, if it is not expressly written in the contract employees are not obliged by law to disclose allegations made against them.
In this case no, the tribunal ruled the Claimant should have been given the chance to end his employment at his second job. However the Tribunal did penalise the Claimant, reducing his tribunal award by a third.
Posted: Jun 12, 2015 by admin in Unfair Dismissal
Once again there are no new EAT judgments for us to write about, however, we have found another story that has made headlines this week which is an employment law conundrum.
As some of you may be aware local football team Leicester City FC have been embroiled in scandal this week. Tabloid newspapers obtained an explicit video of three Leicester players, including the manager’s son, being racially abusive towards two Thai women who were also involved in the video.
To make matters worse the club is owned by a Thai business man and the video was filmed whilst the club were on an official visit to the country. Somewhat ironically Leicester manager, Nigel Pearson, is also an ambassador for the Kick It Out anti-racism charity.
The club, quite rightly, has suspended the three players involved whilst a disciplinary investigation is carried out. From an employment law perspective the investigation and potential outcomes open a rather large can of worms and the following issues will need to be dealt with;
- How media and social media coverage puts pressure on an employer to respond a certain way.
- How to handle family/work relationships to avoid nepotism.
- What to do when an employee’s personal views, beliefs or conduct come into conflict with the company’s.
We recently covered the case of GAME v Laws which highlighted how personal social media accounts can contribute towards a dismissal if they are not private. Therefore published media involving racist or general grossly inappropriate behaviour could also result in a dismissal.
Furthermore groups such as Racists Getting Fired, Yes You’re Racist and well-known e-petition lobbyists 38 Degrees actively encourage the social media community to put pressure on businesses to respond a certain way. If the employee has been found to have committed a gross misconduct offence then they can dismiss the employee and limit the damage of the negative publicity.
However, if the employee has been found not to have committed a gross misconduct offence then the employer is in a lose-lose situation. If they unfairly dismiss the employee they are liable for claims from the employee, if they don’t they will receive further negative backlash from the public.
The BBC were in a similar position recently whilst they investigated Jeremy Clarkson following steakgate. In this case there were petitions to both keep and sack Clarkson, a true Catch-22. To put the impact of Twitter campaign groups into perspective, Twitter has over 340,000 tweets published a day much of which is about trending news topics such as the above cases.
The issue of family-working relationships raised in this case is also a headache for employers. Many businesses employ family members from big businesses such as Rupert Murdoch’s News Corp to smaller businesses including PJH Law.
There are many advantages of employing family members but one of the key issues is that the family members employed have a professional relationship that is no different to that of a normal employee. In this instance not dismissing the manager’s son but dismissing the other employees involved could constitute wrongful dismissal and/or unfair dismissal as identical circumstances and disciplinary investigations would have yielded different results.
A further puzzle for the employer is not upsetting the manager, who is highly talented and difficult to replace, by sacking his son. The employer now has to delicately balance retaining a talented manager and treating all staff equally.
A final point is what the employer should do when an employee’s personal beliefs conflict with the employers. In this case it is a Thai owned company having employees who hold racist views. The recent ‘gaycake’ case of Lee v Ashers Baker Co Ltd found that a bakery discriminated against a customer when it refused to make a cake with a slogan supporting same-sex marriage is a high profile example.
Furthermore in Otomewo v Carphone Warehouse Ltd, two members of staff posted a homophobic status update on the claimant’s facebook page, without his permission or knowledge. Here, like in the Leicester case, the employer was vicariously liable for the harassment as it happened on company time. To solve this matter it is important to have a policy on conduct and clearly state the companies own views when it comes to issues such as racism, sexism or homophobia.
The take away points that employers need to learn from this is that:
- when an employee’s conduct creates a media storm that the investigation still needs to be fair
- any family/professional ties at an employer should not result in preferential treatment for the relative
- companies need to clearly set out their stall for issues such as racism so any misconduct issues that arise can be dealt with easily.
Posted: Jun 5, 2015 by admin in Unfair Dismissal
Recent EAT judgements suggest Tribunals will not look favourably on parties who do not follow ACAS early conciliation procedure to the letter. This includes cases where the Claimant has gone through conciliation but submitted the incorrect number in their ET1 form such as Sterling v United Learning. Or in circumstances where conciliation between the parties is impossible, such as Cranwell v Cullen where the Claimant was sexually harassed and physically assaulted.
The recent judgements show that the courts are taking Early Conciliation and other forms of alternative dispute resolution seriously and will penalise claimants and respondents who do not adhere to the rules, even if their case is otherwise considered a slam dunk. Employers need to make sure that even if they do not wish to reconcile issues with claimants that they jump through the hoops of the ACAS Early Conciliation process.
Posted: May 29, 2015 by admin in Employment Tribunal
A recent European Court of Justice judgement, regarding the former high street stalwart Woolies, has outlined the rules regarding collective redundancy consultation.
After the firm went into administration in 2008, all staff were made redundant and all 815 stores closed. Four years later, 24,000 former staff of Woolworths were awarded 60 days’ pay as compensation because the stores had been closed without consultation.
However an additional 3,200 staff have missed out on the extra compensation because they worked in stores with less than 20 staff.
Posted: May 29, 2015 by admin in Redundancy
In our previous post ( http://pjhlawupdates.co.uk/t/2DH3-9N3S-KJ9GP-3Q8R8-0/c.aspx ) we looked at some of the pre-election promises. Following the Conservatives winning a majority these promises are now being rolled out, firstly banning exclusive zero-hours contracts.
Exclusivity clauses in zero hours contracts are an employer preventing casual staff working for another employer, even though they are not guaranteed any work from the employer. Any existing exclusive contracts will no longer be enforceable and employees will be able to enter into additional forms of employment.
Companies like Sports Direct, which employs a fifth of the zero-hours’ workforce may have to amend its contracts to allow for the new legislation. If you need any advice on this matter please contact us.
Posted: May 29, 2015 by admin in Settlement Agreements
Hello again, we hope you enjoyed the bank holiday despite the gloomy weather. This week’s case is about religious discrimination and is one of the most straightforward cases we’ve covered, however, there are still lessons to be learned for employers.
The question this week is:
Can a health and safety policy be indirectly discriminatory?
Ms Begum, the Claimant, was offered a job as a trainee nursery assistant at Barley Lane Nursery, the Respondent. The Claimant was a devout Muslim who wore a full Jilbab, a garment that covered her from head to ankle, as part of her beliefs.
The Respondent told the Claimant that she would be unable to wear the Jilbab at work as it was a tripping hazard and could put herself or children at risk. The Claimant felt she was unable to accept the Respondent’s offer if she was unable to wear the Jilbab and bought a religious discrimination claim against the Respondent.
The Employment Tribunal dismissed the claim. The Tribunal held that the clothing policy preventing the Claimant from wearing the Jilbab, was a reasonable Provision, Criterion or Practice (PCP) as long garments would be a tripping hazard to both staff and children.
Furthermore the PCP applied equally to all staff who wished to wear inappropriate clothes so there was no direct discrimination to Muslim women. Any indirect discrimination was a justified means of protecting the health of children in the Respondent’s care.
The Claimant appealed the Tribunal’s decision on the grounds that the decision it reached was perverse. The EAT dismissed the appeal citing that the Tribunal had reached a just decision and that any indirect discrimination caused by the PCP was justified to preserve the health and safety of all children and staff the Respondent had a duty of care for.
To answer today’s question, no, a health and safety policy or PCP cannot constitute as indirect discrimination providing the reasoning behind the PCP is justifies any discrimination that may occur from it. In this instance Health and Safety prevailed and would therefore be reasonable to assume that the health and safety of staff takes supersedes any indirect discrimination that might arise.
Posted: May 28, 2015 by admin in Religious Discrimination