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Zayn Malik and work related stress

At PJH Law we usually only practice employment law, however, it seems yesterday we temporarily branched out into the most common kind of law, sod’s law. Just six hours after publishing our monthly newsletter about topical employment law and HR issues, Zayn Malik, a member of one of the world’s most hyper exposed celebrity products, One Direction, quit the band due to work related stress. Whilst we don’t intend to permanently expand our area of practice into sod’s law we thought it may be worth writing an article about work related stress.

In 2014 nearly 40% of work related illnesses were due to stress or anxiety, accounting for over 11 million days’ worth of absences nationwide. In short, work related stress is both a common and widespread issue affecting many people and industries.

To many, being a pop star isn’t a career you’d usually associate with being stressful. However, pop stars, particularly boy bands have notoriously short shelf lives (anyone remember NSYNC, 5ive, East 17 or the Backstreet Boys?). Thus, they have to endlessly record albums, embark on long tours and, in One Direction’s case, promote a seemingly endless supply of merchandise in order to stay at the forefront of the market.

Hectic work schedules and long hours are also one of the main causes of stress nationwide. The average working week in the UK is roughly 43 hours, the average for the E.U is 40 hours, whilst in the Netherlands the average week is 27 hours (Guess where we’re moving?). Additionally, bullying, working conditions and quality of support are also common causes of work related stress.

So, what are the legal obligations for employers when it comes to stress? Whilst there are no specific laws, employers do have a duty of care under the Health and Safety at Work Act to ensure the health, safety and welfare of their staff. Employees could potentially bring constructive dismissal and/or disability discrimination claims if their work related stress issues are not handled properly.

Moreover, if an employee is dismissed for absence or performance in relation to their stress they could bring an unfair dismissal claim. Furthermore, they could bring a personal injury claim for work related stress if they become unable to work for a period of time. Walker v Northumberland County Council ( http://pjhlawupdates.co.uk/t/2DH3-72B7-KJ9GP-2LDRH-0/c.aspx ) is a leading case on an employer’s duty of care towards an employee who is vulnerable to stress.

Tribunal claim’s aren’t the only adverse impact of work related stress; productivity, morale and staff turnover are all common impacts of stress at work, making it imperative for employers to reduce both the risk and impacts of stress wherever possible. There are a few easy steps employers can take;

– Ensure that you have appropriate health and safety policies in place. Each working environment will have different types of stress so it is imperative your policies and procedures reflect this.

– Carry out risk assessments to identify factors that could cause stress.

– Train management to identify early signs of stress.  High levels of absence, incidents of bullying or conflict, low productivity and high staff turnover are all tell-tale signs of stress and spotting them could nip the problem in the bud.

– Make reasonable adjustments. If an employee complains about, or is signed off with work stress, then see whether circumstances can be improved. For example, a temporary reduction in hours or adjustment to job description.

Posted: Mar 26, 2015 by admin in Employment Tribunal

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Election Watch: An Employment Law Guide to the 2015 General Election

 

Before you read any further this isn’t a spin-off to Spring Watch presented by Michaela Strachan.

The 2015 General Election is just over 40 days away and employment law could be a contentious issue. Many of the big parties have already set out their stall on how they intend to tackle employment issues and we thought now would be a good time to outline these policies

 

Conservatives

 

  • Significant changes to rules on industrial action making it more difficult for unions to strike
  • Raise the minimum wage to £7.00 in the near future.
  • Exclusive zero hours contracts to be scrapped.
  • Repeal of the Human Rights Act and the introduction of a British Bill of Rights and Responsibilities.
  • Create three million more apprenticeship jobs.

 

Liberal Democrats

 

  • A single national minimum wage for 16 to 17-year-olds in work and first year of apprentices.
  • A national minimum wage enforcement section will be introduced
  • Making the disclosure of equal pay information compulsory for companies employing over 250 people
  • Granting fathers an additional four weeks’ paternity leave.

 

UKIP

 

  • Repeal the Agency Workers Directive, which gives agency workers who have been hired for 12 continuous weeks the right to equal treatment with employees
  • Allow businesses the right to discriminate in favour of young British workers.
  • Withdraw the UK from the jurisdiction of the European Court of Human Rights, and repeal the Human Rights Act.

 

Labour

 

  • Raise the minimum wage to £8.00 by 2020
  • An increased fines for employers who fail to pay the minimum wage, and a tax rebate to employers who commit to pay the living wage.
  • Introduce new rights for employees on zero hours contracts
  • Reform the current Employment Tribunal system to ensure all workers have proper access to justice.
  • Increasing the current entitlement to statutory paternity leave from two to four weeks and increasing paternity pay to a minimum of £260.00 per week.

 

Green Party

 

  • Turn the national minimum wage into a genuine living wage
  • Work towards a 35-hour working week
  • Introduce equal pay audits for larger employers
  • Introduce more generous maternity and paternity leave.
  • Ensure that workers’ rights apply to part-time, casual workers and the self-employed, and from the first day of employment.
  • Reduce corporation tax for small firms to 20%.

Posted: Mar 25, 2015 by admin in Employment Tribunal

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Jeremy Clarkson – Gross misconduct or mitigating circumstances?

In case you have been living under a rock divisive Top Gear presenter Jeremy Clarkson has been suspended by the BBC.

Whilst journalists have been investigating what a fracas actually is, (and how to pronounce it) the BBC has been trying to get to bottom of the incident in which Clarkson reportedly punched a producer over not being able to order steak after filming.

In normal circumstances the employer would suspend the employee whilst an investigation was carried out, a disciplinary meeting would be held and if they allegations were found to be true the employee would be dismissed for gross misconduct.

Clarkson and his fellow Top Gear presenters bring high revenues into the BBC and over 800 000 people, including Prime Minister David Cameron have urged the BBC to reinstate Clarkson, who is viewed by many as a national treasure.

We recently did a Case of the Week ( http://pjhlawupdates.co.uk/t/2DH3-6YM6-KJ9GP-2JVQJ-0/c.aspx ) on mitigation and the BBC has every right to consider mitigating circumstances such as the above when considering what disciplinary action to take. However, Clarkson also has a long history of disciplinary problems ( http://pjhlawupdates.co.uk/t/2DH3-6YM6-KJ9GP-2JVQK-0/c.aspx ) including being put on a final warning last year for using racist language whilst on set.

As an employer the BBC also has a duty of care to provide a safe working environment for all employees, the producer involved in the fracas could bring legal claim for a breach of contract and or breach of a duty of care.

Furthermore it would set a precedent for future incidents making it difficult and unfair to treat other employees differently.

Posted: Mar 25, 2015 by admin in Settlement Agreements

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Peter Willey and George Sharp V The England and Wales Cricket Boards (ECB)

 

Anyone for Cricket?

We’re soon to enter cricket season so it’s timely to report on the outcome of two Employment Tribunal age discrimination claims brought by two former cricket umpires.

Peter Willey and George Sharp were removed from their posts as ‘first class’ umpires after reaching the England and Wales Cricket Board’s (ECB) ‘expected retirement age’ of 65.

They brought claims of age discrimination at the Employment Tribunal on the grounds of indirect age discrimination.

The Tribunal found in their favour that there was prima facie discrimination i.e they had been treated less favourably because of their age but concluded that the treatment was justified.

The ECB ran two arguments in respect of justification.  First, that the decision was justified because the ECB needed to ensure opportunities for succession planning and appointing new umpires. Secondly, because it wanted to maintain the dignity of the umpires in not having to dismiss them at a later date because of a decline in performance.

The tribunal found that the first reason, but not the latter, justified retirement and the discrimination.

This decision is very much in line with the current spate of indirect discrimination cases where discrimination is found to be justified. You may recall the decision in the November 2014 case of Mr White v the Ministry of Justice.  Mr White was a circuit judge who was retired (against his will) at the Ministry’s compulsory retirement age of 70.

The main issue in this case also related to objective justification of the retirement age.  The Tribunal accepted that legitimate aims included inter-generational fairness, the preservation of the judge’s dignity (hence no doubt why the ECB tried to run this line of argument) and maintaining of public confidence.  Mr White’s claim (like those of Willey and Sharp) was dismissed.

So, this recent run of justification centred cases has very much ‘watered down’ the removal of compulsory retirement ages.  The arguments in the two cases may have been different but the outcome was the same.  For these umpires, ‘that’s just not cricket’!

Posted: Mar 20, 2015 by admin in Age Discrimination, Retirement

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Chawla v HP

Exclusively Employment Law Solicitors

Chawla
v
Hewlett Packard

This weeks’ case could be compared to a can of worms. This weeks’ case is about disability discrimination, there are several claims and questions but we have tried to keep the summary as succinct as possible.

The two questions this week are;

Do reasonable adjustments have to be performance related?

Is cutting off access to email for a  long term absentee disability discrimination?

Mr Chawla, the Claimant was employed as an IT support worker by Arcsight. In 2007 he was signed off work with stress. In 2010 Arcsight was acquired by Hewlett Packard, the Respondent, the Claimant was TUPE transferred over but remained off work due to sickness.

The Respondent had a policy of restricting email access for employees on long term absence. Due to this the Claimant was delayed in joining the Respondent’s share purchase plan and it also prevented him from exercising share options with his previous employer, incurring a large tax expense.

The Claimant raised several grievances including;

- Not finding out about the right to exercise share options until a year after all other staff.

- No consultation regarding the merger between Arcsight and the Respondent.

- Failure to inform him of changes in terms and conditions of employment.

- Delays in joining the Respondent’s share plan.

Upon rejection of these grievances the Claimant bought several claims to Tribunal including disability discrimination for failure to make reasonable adjustments. The Claimant stated that as he was off work with long term sickness the company needed to adjust its email restriction policy to keep him informed on issues such as TUPE and share options.

The Tribunal upheld this claim finding that despite not being performance related, preventing the Claimant from accessing emails constituted as a provision, criterion or practice (PCP) which required reasonable adjustments. The Tribunal also found that the Respondent had also directly discriminated against the Claimant by preventing him from joining their share scheme at the same time as other employees. Lastly the ET held that the Respondent had breached TUPE regulations when transferring

However claims for harassment, injury to feeling and personal injury were rejected with the Tribunal finding the Respondent’s conduct only exacerbated an existing medical condition. The Claimant appealed this decision and the EAT held that the employment tribunal had erred in making no injury to feelings award in respect of stress generated by the reasonable adjustments failure. The EAT increased the Claimant’s overall award.

The case raises several points.

When dealing with reasonable adjustments make sure that all policies, criterion and practices are assessed not just those that affect performance.

Be sure that all staff who are absent are kept well informed on any company matters such as redundancy or TUPE.

When employees off sick need to be informed of potentially upsetting or sensitive company issues be sure to have some framework or procedure in place to prevent the sensitive topic exacerbating their illness.

Posted: Mar 6, 2015 by admin in Employment Tribunal, TUPE

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GAME v Laws

The two questions this week are;

1. When an employee TUPE transfers to a new company is the new employer liable for any ongoing harassment issues/claims?
The question this week is

Are employee’s personal social media accounts capable of bringing an employer’s reputation into disrepute?

This is the first EAT case involving Twitter. The Respondent, GAME, has over 300 stores in the UK. Mr Laws, the Claimant, was employed as a risk and loss prevention investigator and was in charge of monitoring around 100 stores in the North East.

Ironically, part of his job was to monitor the individual Twitter accounts of the individual stores to make sure no inappropriate content was posted. To do this, the Claimant set up his own Twitter profile and followed the 100 stores, 65 of which followed him back.

One of these stores then reported the Claimant for tweets he had posted which were offensive, intimidating, racist and discriminating. These included remarks made about; dentists, caravan drivers, golfers, the A&E department, Newcastle United supporters, the police and disabled people. While many of these characteristics clearly aren’t protected under the Equality Act the latter most definitely is!

After investigation, the Claimant was dismissed, despite not directly affiliating his Twitter account to the Respondent. The public nature of Twitter meant potential customers and GAME employees could easily see the offensive content he posted.
Despite admitting to posting the tweets the Claimant took this case to tribunal. The tribunal found that, despite his inappropriate conduct, the Claimant’s dismissal was an unreasonable response as the Twitter account was not directly linked to the Respondent, all posts were made outside of work time on a device not belonging to the company and were not definitely seen by any employees or customers other than the one who reported it.

The Respondent appealed this decision on the grounds that the tribunal had substituted its own view for that of a reasonable respondent. The EAT found that despite not affiliating himself to Game, the Claimant, who was followed by colleagues, had made no effort to keep his posts private from colleagues or potential customers. Upholding the Respondent’s appeal that the Tribunal had substituted its own view, the case was referred back to a different tribunal.

The lessons to be learned here are clear
1.       Employees need to make sure that privacy settings are used on social media accounts to prevent colleagues or clients from seeing posts.
2.       Just because an employee does not tweet something offensive about the employer it can still be inappropriate or damaging to the employer’s reputation, in fact it could infringe the bullying and harassment policy.
3.       Social media can be a grey area for both employers and employees. If the Respondent in this case had a clear Social Media policy ( emma@pjhlaw.co.uk?subject=Social Media Policy ) they may have prevented a tribunal, appeal and subsequent tribunal. If you do not already have one then maybe it is time to put one in place. Training employees how to use social media is also an option.
2. Is it fair to treat employees engaging in an office affair differently because of their gender?

The Claimant, Ms Vernon, was employed by Port Vale FC as a sales manager but was TUPE transferred to Azure Services Ltd. Azure provided a range of services for Port Vale FC and the Claimant’s place of work did not change.

Before the transfer she had been sexually harassed by a colleague (Mr Bedding) who was not TUPE transferred, but still worked in close proximity with her. The allegations of harassment include Mr Bedding referring to her as a “bitch”, frequently pestering her for dates, requesting she wear low cut tops and saying she was “too attractive to work in football”.

Rumours then started circulating that the Claimant was having an affair with a player for Port Vale FC, something that all employees of both Port Vale and Azure were forbidden from doing. The Claimant was suspended whilst an investigation was carried out and when confronted by her line manager the Claimant said that all rumours were false but did disclose that the football player had written his name on her car.

The Claimant returned to work. The investigation could not find conclusive evidence of any affair between the Claimant and the player. However, she later told her manager that the player in question had followed her on her day off, contacted her on Facebook, exchanged texts with the Claimant and also gone to her house.
The manager felt holding back this information had breached their trust and she was sacked for her communications with the player and jeopardizing Azure’s contract with Port Vale. The Claimant appealed to be reinstated but was unsuccessful so the case went to Tribunal.

By this time Mr Bedding had left Port Vale and Port Vale had gone into administration so Azure were the sole Respondent at court. The Tribunal found that:

1. The harassment issues did not TUPE over to Azure

2. The Claimant was dismissed due to her sex which was discriminatory

The Claimant appealed the first finding and Azure appealed the latter. The EAT accepted the Claimant’s appeal finding the continuous nature of the harassment and the close proximity that her and Mr Bedding worked meant despite the Claimant’s TUPE to Azure they were ultimately liable to protect her from harassment at work.
The EAT rejected Azure’s appeal as it found that the Claimant was discriminated against and dismissed due to her gender. It cited the different treatment the player received in comparison to the Claimant as well as comparing how a similar situation involving two male employees might have been handled as reasoning for its decision.

The lesson for employers is:

1. A TUPE transfer will not stop the clock on harassment claims when employees TUPE over to your company but still work closely with former colleagues who have not transferred. Make sure any ongoing issues such as harassment, bullying etc are resolved.

2. Set clear guidelines for employee relations (office romances) and make sure that if employees breach these rules then they are both treated equally.

Posted: Mar 2, 2015 by admin in Employment Tribunal

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Vernon v Port Vale Football Club, Azure & Bedding

The two questions this week are;

1. When an employee TUPE transfers to a new company is the new employer liable for any ongoing harassment issues/claims?

2. Is it fair to treat employees engaging in an office affair differently because of their gender?

The Claimant, Ms Vernon, was employed by Port Vale FC as a sales manager but was TUPE transferred to Azure Services Ltd. Azure provided a range of services for Port Vale FC and the Claimant’s place of work did not change.

Before the transfer she had been sexually harassed by a colleague (Mr Bedding) who was not TUPE transferred, but still worked in close proximity with her. The allegations of harassment include Mr Bedding referring to her as a “bitch”, frequently pestering her for dates, requesting she wear low cut tops and saying she was “too attractive to work in football”.

Rumours then started circulating that the Claimant was having an affair with a player for Port Vale FC, something that all employees of both Port Vale and Azure were forbidden from doing. The Claimant was suspended whilst an investigation was carried out and when confronted by her line manager the Claimant said that all rumours were false but did disclose that the football player had written his name on her car.

The Claimant returned to work. The investigation could not find conclusive evidence of any affair between the Claimant and the player. However, she later told her manager that the player in question had followed her on her day off, contacted her on Facebook, exchanged texts with the Claimant and also gone to her house.
The manager felt holding back this information had breached their trust and she was sacked for her communications with the player and jeopardizing Azure’s contract with Port Vale. The Claimant appealed to be reinstated but was unsuccessful so the case went to Tribunal.

By this time Mr Bedding had left Port Vale and Port Vale had gone into administration so Azure were the sole Respondent at court. The Tribunal found that:

1. The harassment issues did not TUPE over to Azure

2. The Claimant was dismissed due to her sex which was discriminatory

The Claimant appealed the first finding and Azure appealed the latter. The EAT accepted the Claimant’s appeal finding the continuous nature of the harassment and the close proximity that her and Mr Bedding worked meant despite the Claimant’s TUPE to Azure they were ultimately liable to protect her from harassment at work.
The EAT rejected Azure’s appeal as it found that the Claimant was discriminated against and dismissed due to her gender. It cited the different treatment the player received in comparison to the Claimant as well as comparing how a similar situation involving two male employees might have been handled as reasoning for its decision.

The lesson for employers is:

1. A TUPE transfer will not stop the clock on harassment claims when employees TUPE over to your company but still work closely with former colleagues who have not transferred. Make sure any ongoing issues such as harassment, bullying etc are resolved.

2. Set clear guidelines for employee relations (office romances) and make sure that if employees breach these rules then they are both treated equally.

Posted: Mar 2, 2015 by admin in Employment Tribunal, TUPE

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Insley V Accent Catering

This is the first Tribunal decision involving e-cigarettes in the workplace.

E-cigarettes are a bit of a hazy issue for employers so we hope this week’s case will clear the air a little.

The question this week is whether being suspended for smoking an e-cigarette amounts to constructive dismissal?

Ms Insley, the Claimant, was employed by Accent Catering, the Respondent, as a Catering Assistant for a secondary school.

The head teacher caught the Claimant smoking an e-cigarette on school grounds in front of pupils. He reported this to the Respondent and said he believed the Claimant’s actions amounted to gross misconduct.

The Claimant was suspended for bringing the Respondent’s reputation into disrepute and was invited to a disciplinary hearing to decide whether her actions justified dismissal. The Claimant resigned before the hearing could take place and then claimed constructive dismissal.

As the Claimant was never formally dismissed or indeed disciplined the tribunal had to decide whether the Respondent’s actions had breached the terms of the Claimant’s contract. The tribunal ruled in favour of the Respondent however it also stated after examining the Respondent’s smoking policy that the Claimant’s actions did not amount to gross misconduct.

This was due to the smoking policy being based on the Health Act 2006 which only covers tobacco cigarettes. E-cigarettes are vapour based and are not covered by the Act. The Tribunal highlighted its concern as it believed that the Claimant had not breached this policy even if her conduct had been inappropriate. Had the Claimant been dismissed a claim for unfair dismissal could have gone in her favour.

The lesson here for employers is simple, have a clear smoking policy that covers e-cigarettes!

The take away point for employees is that it is almost always better to be pushed than to jump.

E-cigarettes are not covered by the Health Act and in 2016 they could be prescribed as a medicine to help smokers give up, so now is the time to act! A clear policy on smoking and e-smoking will give employers a firm leg to stand on should any breaches arise.

Posted: Mar 2, 2015 by admin in Employment Tribunal

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Liakopoulou v Christie Hospital NHS Foundation Trust

I have tweaked.

Liakopoulou v Christie Hospital NHS Foundation Trust

In light of recent events involving Chelsea and West Ham fans on trains this week we would like to highlight a recent case of the week we published involving gross misconduct outside of work time.

This week’s case also involves gross misconduct.

The question this week is:

Should employers consider mitigation and not dismiss an employee for a gross misconduct offence?

The Claimant was employed as a consultant doctor by the Respondent from 2003 to 2010. In 2009 a patient reported that they had been pressured by the Claimant to participate in a medical trial. The patient claimed that the Claimant would be more likely to consider the patient for a transplant if they agreed to participate.

Around this time it also came to light that the Claimant had lied about her qualifications on her CV, medical papers submitted and on the Respondent’s website. The Respondent dismissed the Claimant for gross misconduct and after the Claimant’s appeal to be reinstated was dismissed the case was bought before the Tribunal.

One of the Claimant’s main arguments was that the Respondent had not taken into account her reasonable length of service and good record prior to these incidents. The Claimant argued these as grounds to mitigate her dismissal for gross misconduct down to less serious disciplinary action.

Despite evidence to the contrary the Tribunal found that mitigation had not been properly considered by the Respondent. The Tribunal believed the incident involving qualifications was not gross misconduct and that pressuring patients to participate in medical trials should have been mitigated by the Claimant’s service record.

The Respondent appealed the decision on the grounds that the Tribunal had substituted its own views for that of the Respondent. The EAT upheld the appeal. The EAT held that the Claimant’s actions did amount to gross misconduct and that the nature of the conduct amounted to a serious breach in trust which meant mitigation was not possible, something the employer had argued at the previous Tribunal.

The lesson for employers is:

In disciplinary proceedings always take into account evidence such as service record, length of service and attitude as grounds for mitigation.

Any letter sent to the employee following the disciplinary process should clearly identify the points considered in mitigation and fully explain the reasons for the lesser sanction being imposed. Likewise if the mitigation points are rejected be sure to explain why.

When looking to employ highly qualified staff make sure that that forged or inaccurate qualifications is classified as gross misconduct in the disciplinary hearing.

Posted: Mar 2, 2015 by admin in Employment Tribunal

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The Cabinet Re-shuffle and Employment Law

This Cabinet reshuffle is interesting from an employment law perspective.

The casualties so far are:

Dominic Grieve (Attorney General)

The Rt Hon Kenneth Clarke QC MP (Minister without Portfolio)
The Rt Hon David Willetts MP (Minister of State, BIS)
The Rt Hon Alan Duncan MP (Minister of State, DFID)
The Rt Hon Hugh Robertson MP (Minister of State, FCO)
The Rt Hon Sir George Young Bt MP, (Chief Whip and Parliamentary Secretary to the Treasury)
The Rt Hon Andrew Robathan MP (Minister of State, Northern Ireland Office)
The Rt Hon Gregory Barker MP (Minister of State, DECC).

 

To borrow a phrase once used by a HR Director at a well known PLC, the victims of the re-shuffle appear to be mainly “male, pale and stale.”

 

Those achieving advancement and promotion appear not to fit that description.

220px-NickyH&SJan10 esther-mcvey-img Liz Truss is to become environment secretary

 

With the re-shuffle widely being trumpeted as Cameron’s way of appealing to the female demographic where his support is low, the re-shuffle and the way it has been spun does appear to be at the very least an interesting take on the Equality Act 2010 where positive discrimination is only permitted in certain prescribed circumstances around genuine occupational requirements.There is always a fine line between addressing discrimination where it exists by promoting and recruiting under-represented groups and actively discriminating against the advantaged groups-here men.

It’s not an easy issue to tackle. There are still vast swathes of public and private life  (eg Board Directors at PLC) where female participation is low. It is remarkable that in an advanced democracy we have had one female prime minister and no prime ministers from a BME background.

A more gender balanced executive can only be a good thing and let’s hope a more diverse cabinet brings with it a more diverse range of viewpoints and experiences. Not everyone may agree – has this re-shuffle crossed the line? Should positive discrimination be allowed? Has David Cameron cynically sought electoral advantage or boldly addressed an inequality? Have your say below the line.

 

Posted: Jul 15, 2014 by admin in Unfair Dismissal

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