In case you haven’t noticed it has been rather warm these last few weeks. Whilst many will be rejoicing (PJH Law staff included) at the chance for some sunshine and heat, it can leave some employers with a headache (but hopefully not sunstroke).
One issue is that many offices are not designed for temperatures above 30’C and can get very hot. The Workplace (Health, Safety and Welfare) Regulations 1992 state that the temperature in the workplace needs to be “reasonable”. However the guideline for reasonable office temperatures is defined by the Health and Safety Executive as being between 13 – 30’C and that reasonableness is dependent on the nature and strenuousness of the work, for example in sedentary role the minimum suggested temperature is 16’C.
The common sense approach is to make simple changes that make the working environment more comfortable during the heat. A common policy, and one that this firm uses, is allowing a more flexible dress code. In some customer facing roles, or, roles that require safety equipment, this may be difficult but shorts, dresses and other such comfortable attire should be accommodated wherever possible. Likewise having fans may be another solution to keep the working environment cool.
Another common issue during heatwaves is unauthorised holiday or employees ‘pulling a sickie’. If an employer suspects a member of staff is pulling a sickie then the employer should carry out an investigation to establish whether or not the sickness was genuine.
If the employer is satisfied that the sickness wasn’t genuine then the issue could become a disciplinary one. The case of Ajaj v Metroline West Ltd (EAT) held that pulling a sickie was a breach of the implied term of trust and confidence and can therefore a summary dismissal for GM was not unfair.
Another issue that often arises is competing holiday requests. These should be dealt with in a fair manner, such as first come first served. Finally, flexible working requests may rise during heat waves and these should be treated like any other flexible working issue, similar to the approach suggested by ACAS for the European Championships and forthcoming Olympic Games.
Posted: Jul 29, 2016 by admin in E Learning
Those of you who are regular readers will know that Sports Direct has made headlines for its incredibly poor working conditions. Most of the staff subjected to these conditions are actually either self-employed or agency staff who have fewer employment rights and less job security than normal workers. It has been heralded as a sign the economy is failing.
But what is the gig economy? The gig economy isn’t a niche market of rock bands and pop stars looking to secure concert dates, in fact it is the ever increasing amount of people who take on short term, temporary work. To some this is a sign of innovation and worker flexibility, to others it is a sign that worker’s rights are being eroded.
The gig economy isn’t just people working agency jobs at large companies, it also includes freelancing designers, writers and other creative industry types and many small entrepreneurs, including the 1 million+ people who sell via the online marketplace, Etsy. By 2020 it is estimated 40% of people will be employed in the so called gig economy.
Whilst dreams of entrepreneurialism, a healthy work/life balance and being your own boss entice many people into the gig economy lifestyle it seems that in reality some companies use this economy to skirt round, or abuse, employment rights. Whilst many will agree that this model does reduce staff cost it can also reduce morale, productivity and can create an environment where staff have little loyalty to the company.
Unfortunately, there is very little law to protect those working in the gig economy and the recent Sports Direct scandal suggests that the government will be examining and reforming it in the not too distant future.
Posted: Jul 29, 2016 by admin in E Learning
Many of you may know of the taxi app, Uber and its army of self-employed drivers. The company has gone from strength to strength with its innovative way of delivering cheap and reliable taxis in a short space of time.
However, one black cloud that hangs over the company is its treatment of drivers. The company believes its self-employed drivers have the freedom to choose how much they work, whilst the ability for drivers to rate customers and vice versa means they can easily avoid rowdy and unruly fares.
On the other hand, many former drivers have argued that the conditions they work in are not as good as made out and that they are poorly treated despite supposedly being self-employed. This has led to the forthcoming case of Aslam and others v Uber BV.
The drivers are claiming that they are actually workers. If they are held to be workers then Uber would have to allow them employment rights such as holiday pay and the minimum wage. This case could have a wider impact on other companies who use a similar model, including the parcel delivery firm Hermes, whose drivers have been reported to earn as little as £5.50 an hour, and the food delivery firm Deliveroo, who contrary to s203 of the Employment Rights Act 1996, have clauses that prevent couriers bringing Tribunal claims
Posted: Jul 29, 2016 by admin in Employment Tribunal
Every month we bring you an employment law related story that somehow gets swept up in the imperfect storm that is tabloid journalism. This month’s story is so sensationalist it may even result in the Daily Mail being able to describe celebrities’ legs as something other than pins!
In a recent Sun headline, Angela Gibbins, Head of Global Estates at the British Council was alleged to have aimed a vile Facebook rant at Prince George, despite the fact she was paid THOUSANDS of taxpayer money to promote the UK!!!!!!<
The vile rant in question was posted on Facebook by another, unnamed individual who rather harshly said, “I know he’s only two years old, but Prince George already looks like a f****** d***head.”
Ms Gibbons then commented on this post with, “White privilege. That cheeky grin is the innate knowledge he’s royal, rich and will never know any difficulties or hardships in life”. Many people who read the article believed Ms Gibbins posted the original expletive laden attack and have criticised her. To which she replied, “I’m sound in my republican views. I don’t believe the royal family have any place in a modern democracy, least of all when they live on public money.”
The British Council has begun investigating the incident but before taking any disciplinary action it may be worth noting the case of Henderson v GMB, which suggest views such as this could be protected characteristics. Any dismissal because of this belief could therefore be discrimination.
Posted: Jul 29, 2016 by admin in Religious Discrimination
Hello and welcome back to your weekly dose of case law. Last weekwe looked at maternity discrimination and constructive dismissal. This week we will examine protected disclosures and whistleblowing. Today’s case is a tale riddled with deceit and espionage.
This week’s case asks:
Is an employee unfairly dismissed if the dismissing party based its decision on false evidence that it genuinely believed was true?
Ms Jhuti, the Claimant, worked in the sales department of Royal Mail Group, the Respondent, trying to attract new long term customers. The Claimant was a new employee and on probation at the Respondent but had vast sales experience.
The Respondent had a very specific policy for sales. They offered incentivised deals to existing clients so they could try out new and more expensive deals. These incentives were not to be used to entice customers on reduced rates. Due to the regulated nature of the Respondent’s business any breaches of this policy could have serious repercussions if they became public knowledge.
The Claimant and a colleague went to meet a customer. The Claimant was told by the colleague that they were visiting a longstanding customer but it became apparent this was not the case during the meeting. Her colleague handed the customer an envelope with an incentives deal, which the Claimant believed to be against company policy.
The Claimant reported this to her manager and found herself receiving fewer preferential sales leads thereafter. At a meeting with her manager she was given a dressing down and coerced into retracting her allegations of incentives abuse. After the meeting the Claimant’s manager emailed a senior manager stating that he didn’t think the Claimant was right for the job and that she would ‘need to be exited’.
From there on the Claimant’s manager began setting increasingly difficult levels of work for the Claimant to complete and despite her best efforts the manager remained critical of her performance.
Whilst her manager was away on annual leave her temporary line manager was very complimentary of her work. The Claimant also had meetings with a member senior management who inferred that the Respondent had turned a blind eye to abuses of the incentives policy.
On her manager’s return the Claimant was once again set difficult tasks and criticised for not reaching them. The Claimant went off sick with stress and raised a grievance about the incentives policy abuses. There was a delay in handling this grievance and the Claimant was offered £100k to exit the business.
The Claimant’s job was then examined and her grievance was rejected due to her coerced email withdrawing the allegations. The Claimant’s manager had lied to HR about the Claimant’s allegations and the Claimant wasn’t interviewed due to her sickness. The incentives policy was then withdrawn for a supposedly unrelated reason. The Respondent then dismissed the Claimant and she initiated Tribunal proceedings.
The ET rejected claims of automatic unfair dismissal (whistleblowing). Despite finding that:
- Her manager’s behaviour was due to protected disclosures.
- The Respondent was aware of the issue and chose to ignore it.
- The Respondent has withdrawn the incentives policy for an unexplained but most likely related reason.
- The Claimant’s manager was an evasive and disingenuous witness leading to the ET believing the Claimant’s version of events.
However the ET rejected her unfair dismissal claim finding that the Respondent’s HR department believing the Claimant’s manager’s inaccurate version of events and thus dismissed on capability grounds as it was a reasonable decision based on their evidence.
The Claimant appealed and the EAT allowed the appeal. It held that despite the Respondent’s HR believing erroneous evidence from the Claimant’s manager, the Respondent was still liable for the conduct of the manager who was manipulating HR’s version of events.
The take away point:
Yes, if an employee is dismissed due to a manager’s false statement then the employer is liable even if the dismissing party believed the false evidence. The EAT summed it up by stating: ‘A decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of both of them’.
Furthermore this case raises some interesting tribunal strategy as the ET judge alluded to several evasive behaviours displayed by the Claimant’s manager and the Respondent’s disclosure. Lastly, it seems the employer in this case made an offer to the employee that was not without prejudice and thus potential evidence, all offers of this nature should be without prejudice and subject to contract.
For more on whistleblowing click here. If you liked this post, please share it, or, for help with employment issues click here.
Posted: Jul 27, 2016 by admin in Employment Tribunal
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.
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
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.
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
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
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
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