Archive for April, 2008
By Philip - Wednesday, April 30th, 2008
Just as, so the old joke goes, there is a gap in the performance of the England Football team- Excellent on paper, rubbish on grass, there can sometimes be a gap between what a written contract says and how it is performed, or perceived to be performed.
Differences between written contract terms and actual performance of the contract lies at the heart of the self-employed/ employee debate raging in some quarters of employment law.
If your contract for services (self employed contract) says one party is not obliged to offer the other party work and that party is not obliged to accept any work offered then the absence of mutuality of obligation means no employment status. However if in practice work is given regularly and accepted regularly does this mutate the contract into one of employee/employer?
The Court of Appeal has grappled with the issue and comes down mostly in favour of the written terms rather than the perceived performance. Read it here. What’s in the written contract is therefore vitally important.
Posted in Employment Tribunal Procedure | No comments »
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By Sarah - Tuesday, April 29th, 2008
Following on from my blog last week about employer’s conduct during a hearing this time we have another EAT decision about conduct by an employer.
This time the Claimant was claiming disability discriminination. The Employer again subjected him to abuse and intimidation calculated to deter him from continuing with the case after the initial hearing, which was set to determine whether or not the employee was disabled.
The Claimant sought to raise the complaints as fresh proceedings before the Employment Tribunal. The Chairman sent it back saying that the alleged conduct attracted judicial proceedings immunity. The Claimant appealed to the EAT.
The EAT held that if the conduct was proved it would amount to harassment and it arise out of and be closely connected with the employment relationship thus meaning that it would fall within terms of the DDA and be disability discrimination and the conduct would not attract judicial proceedings immunity.
These cases are quite unusual so to have two in one week is very unusual!
Posted in Disability Discrimination, Employment Tribunal Procedure | No comments »
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By Emma - Monday, April 28th, 2008
The TUC is calling on employers to provide better occupational health assistance after it discovered that 175 million days were lost through sickness absence in 2006 (at an estimated cost of £650 per employee). It has published a new educational workbook today on the topic called “Occupational Health: Dealing with the Issues” and plans to train up 15,000 workplace safety representatives to use the workbook and advise employers on how to provide healthier solutions for employees.
See here for more information.
Posted in Sick Pay | No comments »
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By Liam - Friday, April 25th, 2008
The EAT have overturned the decision of an Employment Tribunal which made the mistake of substituting its own view for that of the employer. This appears to be a common mistake of Employment Judges. For example here and here.
This time, the Tribunal decided it would have carried out more investigation than the employer, rather than deciding whether the investigation the employer carried out was within the range of objective reasonable responses. The EAT pointed out that the range of reasonable responses test applies as much to investigations as it does to decisions to dismiss. This has been established law since Sainsbury’s Supermarkets Ltd v Hitt.
This confirms that for a dismissal to be unfair by reason of inadequate investigation, it is not sufficient for the Tribunal merely to identify further lines of investigation that the employer could have carried out. The Tribunal must be satisfied that the investigation did not meet the standards that a reasonable employer’s investigation would meet.
Posted in Unfair Dismissal | No comments »
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By Emma - Thursday, April 24th, 2008
An Employment Tribunal has recently decided that baldness does not amount to a physical or mental impairment covered by the Disability Discrimination Act (DDA). You may not find this surprising. However, teacher, James Campbell, argued that he had been bullied and teased by his pupils because they saw of his lack of hair as a weakness.
The Employment Judge hearing the claim whilst accepting that Mr Campbell had been taunted because of his baldness struck out the disability discrimination claim (his unfair dismissal claim is still live) saying that “if baldness was to be regarded as an impairment then perhaps a physical feature such as a big nose, big ears or being smaller than average height might of themselves be regarded as an impairment under the DDA. That, to me, cannot be right looking to the DDA, the guidance and relevant case law.”
Thank goodness for that!
See here for more information.
Posted in Disability Discrimination | 2 comments »
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By Sarah - Wednesday, April 23rd, 2008
In the recent case of Force One Utilities v Hatfield the employer was debarred from taking any further part in the Tribunal proceedings and their response was struck out after they intimidated the Claimant in the car park during the adjourned hearing. The employer told the Claimant that he should be careful how he slept at night.
There was a background of other behaviour and comments by the employer and so when the matter came back before the Tribunal they struck out the response and debarred the employer from taking any further part in proceedings for their intimidatory conduct. The employee was representing himself and was extremely anxious about the employer’s threats.
The Employment Tribunal said when making their decision that they felt that it would not be a fair trial if the employer took part and the employer appealed to the EAT. The EAT held that the Employment Tribunal had had a proper evidential basis for that conclusion and the decision did not reflect any error of law. The Tribunal concerned was Bury St Edmunds - one of our locals, so we can visualise the scenario from the antics described which took place in the car park.
Posted in Employment Tribunal Procedure | No comments »
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By Philip - Monday, April 21st, 2008
The HRA has not been frequently used in the Employment Tribunal but here it was used to stunning effect by the Employer. The law of unintended consequences has meant that the mighty BT has used the HRA to have a claim dismissed by an ex-employee who suffered from poor health. Was the HRA there to protect mega corporations from claims by frail ex-employees?
The EAT has ruled that it was permissible for a Tribunal to strike out a Claimant’s claim where the Claimant’s illness had prevented her from having her claim heard.
Unusually the Claimant was impaled on the sword of Article 6 of the Human Rights Act, namely the right to a fair trial. The right to a fair trial meant having a hearing within a reasonable period. As the matter had dragged on for 3 years and the Claimant’s health meant that she was unlikely to be fit for the foreseeable future, a fair trial was not possible.
Posted in Employment Tribunal Procedure | No comments »
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By Sarah - Friday, April 18th, 2008
Not only will racial harassment mean problems in the employment arena but you could find yourself in a whole lot more trouble. Yesterday, three employees who subjected a muslim co-worker to a campaign of racial harassment over a ten month period were jailed for three years each.
This may sound extreme but not when you consider the campaign that the co-workers subjected him to. The extreme conduct included trying to force feeding him bacon (banned by the muslim religion), setting fire to his trousers and placing a rucksack, with wires trailing out, on top of his work locker. They also subjected him to racist comments.
Posted in Religion or Belief Discrimination | No comments »
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By Emma - Thursday, April 17th, 2008
A warning to employers about an amendment to the Sex Discrimination Act 1975 which came in on 6 April 2008 to protect staff from sexual harassment from customers, suppliers and others that they encounter in the course of their work. This change has come about after a legal challenge brought last year by the Equal Opportunities Commission found that the government had not properly implemented the European Equal Treatment Directive in relation to protection against harassment.
The new law allows an employee to bring a claim against an employer who fails to take reasonable steps to protect them from harassment by third parties where the employer knows that harassment has occurred on at least two other occasions. Interestingly the harassment does not need to have been carried out by the same person on each occasion.
This law will have implications in many different sectors which are client-facing. Hotels, pubs and restaurants, for example, will now be potentially liable if their employees are harassed by clients. This is something that will be very difficult for employers to control. It is not possible to take disciplinary action against clients in the same way as employees. There could also be situations where employers need the business from the client concerned and might not wish to take issue with them about their treatment of an employees. Just something to think about…
For an article on the subject from Personnel Today see here
The Regulations bringing in the change can be read here
Posted in Sex/Race Discrimination | 1 comment »
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By Philip - Wednesday, April 16th, 2008
There is an interesting article in this week’s personnel today about the cost of equal pay claims in the public sector.
Those of you who have a nodding acquaintance with employment law will be aware that groups of public sector workers in a predominately female job function are claiming equal pay with groups of public sector workers in a predominately male job function. Cleaners claiming equal pay with bin men for example. The cost is estimated at a staggering £5 billion pounds (or a couple of pence on the income tax rate).
Once this particular seam has been well and truely mined then it is possible (indeed probable) that the law firms involved may turn their attention to the private sector. Only 46% of private sector employers have conducted an equal pay audit, some employers can expect expensive and time consuming equal pay claims.
Are you sure you can explain why your HR Managers(mainly female) earn less than your Accounts Managers (mainly male) ?
Posted in Sex/Race Discrimination | No comments »
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