Back in April 2006, PJH Law webcasted its inaugral Employment Law Podcast on the subject of the TUPE Regulaions 2006. We believe that podcasts are a more lively and interesting way to keep up to date with changes in Employment Law than the traditional written articles. Instead of getting sent to sleep with a good book you can now get sent to sleep by listening to the latest update on this fascinating topic on an ipod, mp3 player or mediaplayer.
An employer in this case appealed a Tribunal’s decision on the grounds of bias because the Chairman retired with a lay member to consider their decision and gales of laughter were heard from the retirement room. Bias cases are notoriously difficult to succeed with (because most Tribunals act fairly he says in case anyone from an Employment Tribunal is reading) and the appeal failed. It did remind me of a case a colleague did in Manchester where he was acting for an employer. In those pre-witness statement days you examined your witnesses in chief using questions. When he asked the witness what he did during the adjournment of a disciplinary meeting the witness said words to the effect that “Obviously we had made up our mind already so we put the kettle on, made a cup of tea and talked about the night before’s football.” Not surprisingly, the Tribunal in that case did not adjourn too long to make its decision.
Congratulations go out to Laurie Hibbs who I have just heard has become HR Director at Fosters Group (the lager people) based in Australia. Well done Laurie, enjoy the sunshine and the teasing about the cricket.
There were some interesting comments on yesterday’s post relating to third party abuse. The comments made me reminisce about a case I conducted before Mr Bellis (remember him!) at Nottingham ET back in 1995. I was acting for two respondents A Ltd and AB Ltd, both Companies operated from one site who were in common ownership. The facts were that an employee of A limited was alleging that an employee of AB Limited was sexually harassing her. During the case I made a submission that A Limited could not be held vicariously liable for the actions of an employee of AB Limited. Although the term associated employer is defined at sections 82 (1) and (2) of the SDA there is no other reference to the term in the Act. To be strictly accurate the reference to associated employer at section 82 was a hangover from when the SDA did not apply to employers employing fewer than 5 employees. Anyway after all of 5 minutes consideration of the submission the Tribunal returned and we were told that “we weren’t getting through that loophole.” Luckily, in any event, the Tribunal found on the facts that there was no harassment. But if McDonald is rightly decided then A Limited would be going through that loophole to avoid liability.
From today, the stakes have been raised for employees who gamble by using their hand held mobile phones while driving. Employees who are caught using a hand held mobile phone can now receive 3 penalty points and a £60 fine (up from £30). With 1 million drivers thought to be on 9 points, it is one more strike before disqualification from driving. Could your employees manage without a driving license? Now is the time to check you policies and make sure employees are aware of the consequences of using a hand held mobile phone while driving.
The EAT in Scotland has held that an employee who was verbally abused by the father of her employers (two brothers) during works time did not have grounds for constructive dismissal as the father was not her employer. Read it here.Whilst this decision may fit neatly into the law of unfair dismissal, I am not so sure that the result would have been the same if the abuse was of a sexual or racial nature. In a whole series of cases, starting with the infamous Bernard Manning case involving waitresses at a hotel in Derby, employers have been found liable for discrimination by third parties. In the Manning case the “comedian” made alleged sexist and racist comments which the waitresses serving at the event found offensive. The finding was one of discrimination even though Manning was not employed by the hotel.
The Times report a case today involving the Home Office and a sex and race discrimination claim brought by two of its employees. The employees won.The Chairman in the case was, ahem, fairly frank in the decision. He said
“What happens when one of Britain’s least impressive managements, by its sole consistent attitude of procrastination, drives two long-service Asian women to become uncooperative and dismissive? The answer is systemic race and sex discrimination against them and dismissals unfair according to every tenet in the canon.��?
Well that’s pretty clear.
Readers may not be surprised to learn the following:
The two workers had been sent home in 1990 on full pay because the Home Office did not have enough work for them.
They made numerous complaints about the situation but to no avail, including the fact that sub-contract workers doing a similar job were paid more.
When the end of their tether had been reached, they wrote to Charles Clarke, the then Home Secretary, to complain .
Yes you guessed it they were then sacked.
I can now understand why the Home Office was described as not fit for purpose. Oh well better get back to work as the case is rumoured to have cost us taxpayers a cool 3 mill. Read it and weep.
It’s those bare necessities, those simple bare necessities. Wise words from Walt Disney.The EAT have, refreshingly, gone back to basics with the whole issue of implied contract of employment and agency workers. In a nutshell terms will only be implied if it is necessary. In the case reported here the EAT have said it is not necessary to imply a contract of employment. Fact sensitive may be, but is the law reversing away from implying contracts of employment to agency workers? We’ll keep you posted.
Today a round up of some Solicitor’s blogs. First up is human law, run by Justin Patten. Justin is a Solicitor consultant on issues relating to Technology. Two things come out of the blog. Firstly Justin is a pioneer in that he has been blogging a long time and knows his onions, secondly referring back to Geek Lawyer’s post yesterday, his blog allows him to reveal his personality which seems down to earth and decent, in fact just the sort of person you would want to do business with. Next up is ellis blog which achieved notoriety publicity to die for in Personnel Today when the blogger wrote a piece advocating the abolition of the law on unfair dismissal.Unfortunately the post overlooks the the elephant in the room which is so much of our law on unfair dismissal is tied up with our membership of the EU, eg unfair dismissal based on maternity, that abolishing the law on unfair dismissal would be breaching the UK’s obligations under the treaty of Rome.
A worker for IBM in the USA is suing his employer for the US equivalent of disability discrimination. The employee was fired for using his pc at work for going in to sex chat rooms ( whatever they are!) and accessing porn as well. Unsurprisingly he was sacked. The employee is now claiming that as he was vet in the Vietnam war and the first Gulf war, those experiences left him with post traumatic stress disorder, the pain of which was relieved by visiting the sites above. I particularly enjoyed the legal creativity of the pleadings in particular at paragraph 18 where the employee’s lawyers claim that chatting in a sex chat room on a pc is “roughly analagous to a telephone company employee chatting to a pedestrian while mending telephone lines.” Being America it’s a three million dollar plus law suit, so we will keep you posted as to the result. PJH Law will be looking to open an American office if he wins. For those who are interested the pleadings are here. When you get towards the end, the lawyers suggest that it might be age discrimination, if it’s not disability discrimination, just in case.
On a quiet employment law day, I thought some navel gazing was in order. I am currently making my way round all the legal blogs out there. My preliminary conclusion based on what I have seen and read to date is barristers probably make better bloggers than Solicitors. Why is that? Probably because you need to have a huge ego be single mindedly indivualistic to work at the bar and also the chambers system of work allows individuality to flourish. Solicitors on the other hand quite often work in firms where individuality is frowned on and everyone has to conform to the firm culture and toe the line. Conformity and homogeneity are not traits that will make good blogging. To illustrate my point I would refer you to this post by geek lawyer which explains why lawyers blog. Another blog which allows outsiders a look into the dickensian and ultra traditional forward thinking and dynamic world of the bar and barristers is this one by pupil barrister. Let’s hope her pupil master does not read her blog! For those of you not familiar with the arcane language of the bar pupil is a short word for trainee. Tomorrow I will have look at Solicitors’ blogs out there.
