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Check out our employment law news and announcement, including work related articles below. See how it might effect you and your job or if it may have an impact on your employment situation or personal circumstances.

Articles written by Stephen Pinder, Employment Law solicitor and Karen Ogden, paralegal and legal secretary.

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Interim relief, delay and injustice in the Employment Tribunal - Tuesday, June 15, 2021

As a solicitor representing union members and shop stewards for many years, I was involved several times in pursuing applications for interim relief before the Employment Tribunal. The interim relief jurisdiction requires prompt action to lodge a Tribunal claim, within 7 days of dismissal, based upon an allegation that the Claimant had been automatically unfairly dismissed due to trade union membership and/or activity. There are some procedural rules requiring compliance by the Claimant and union, and even with the current delays in the system, an application for interim relief should be heard as soon as practicable by the Tribunal.

Interim relief is available in other situations, including in a whistleblowing case, but union related claims are in my experience the most common.

So what is interim relief? Those not undertaking union work would probably not be aware of the opportunity afforded through an urgent application being presented. The person dismissed pursues a complaint of unfair dismissal and alleges the link between union membership/activity and the dismissal. Whilst not obliged to do so, the Claimant can apply for interim relief, which provides an opportunity to invite the Tribunal to order that they are reinstated until the final hearing. If granted the contract of employment is restored and the employee is put back on pay. In my experience they usually do not return to do actual work, but the principle is that the application can allow an early legal decision on the merit of the main application, hoping that this will deter the other union members from pursuing industrial action.

In my experience it is difficult to secure interim relief as the Tribunal has to believe that it is likely that the dismissal was because of the union related motivation, and tactically it can be an option which disadvantages the Claimant further on in the case, noting how hard it is to win and that the application will be determined prior to exchange of documents and witness statements. I have pursued interim relief for industrial reasons, and it can prompt some sensible urgent negotiations to resolve the dispute prior to the hearing.

Recently the Court of Appeal, in the case of Steer v Stormsure was required to consider whether interim relief was available to Claimants in discrimination cases under The Equality Act, and whether a failure to provide this option for a Claimant was contrary to the European Convention on Human Rights. The court rejected these arguments, concluding that the decision on whether Claimants seeking discrimination based remedies should be able to seek interim relief is a matter for Parliament, even though the court recognised the injustice caused to a dismissed employee who has no interim mechanism to use to secure justice, pending the final hearing. Now that discrimination cases are taking a year and more to even list for a final hearing the absence of an interim remedy is of particular disadvantage to Claimants outside the “small and select group of substantive claims” for which interim relief is available.

There may yet be a further appeal on the case referred to above, but in my view the case outcome is no surprise. The Employment Tribunal is a creation of statute, a role confirmed by the Court of Appeal. I do not expect the current Government to extend opportunities for Claimants raising discrimination allegations to challenge employers by way of interim relief. Not least this would lead to even more urgent Tribunal hearings, and many more interim relief applications than arise from the current case types covered by the rules.

The case does though bring into focus the impact and injustice arising from the delays in the Tribunal system. Only last week I dealt with a preliminary hearing for a man dismissed on grounds of ill health on 5 November 2020, who is raising allegations of disability discrimination. The listing of the final hearing in late January 2023 confirms the most unsatisfactory operation of a system, requiring investment and commitment from Central Government which I sadly do not expect see any time soon.

 

Sacked worker was “free to do what he liked whilst off sick” - Friday, June 11, 2021

An Employment Judge has recently ruled that going to the pub while off work sick is not a sackable offence, stating that unless the employee had been specifically forbidden from socialising while off sick by his employer, he was free to do what he liked.

In this instance, the employee in question who worked as a driver specialising in tarmacking and paving, suffers from a serious lung condition, which causes breathing difficulties, and which had caused him previously to be absent from work for periods of time. His employer had been informed by his colleague that the employee had been spotted outside a social club close to his workplace drinking and smoking. His employer called him to ask how he was and there was no answer. The employee called his employer back and he told his employer that he had been in bed all day and had just gotten up. The company undertook disciplinary action against the employee for dishonesty and breaching company rules, where they informed him he had been seen several times at the social club drinking and smoking, stating that “surely if you had been unfit for work and on antibiotics, you shouldn’t be in the pub”. He was subsequently sacked 3 months later for gross misconduct. The employee did however admit to going to the social club for 15 minutes on one occasion and for 30 minutes on a second occasion.

The Judge found the investigation to be flawed, in particular the claim that the employer rang the Claimant on a Tuesday rather than a Monday, which the Judge called a serious error on the part of his bosses. The Judge upheld the claim of unfair dismissal pointing out that the company’s rules do not prohibit employees from socialising whilst off sick, also stating that it was not clear the exact nature of misconduct of which the Claimant was found guilty. The Judge added that there is no rule the employer can point to which says that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness. The employer assumed, without all relevant evidence, that he should not be out drinking because of the nature of his illness and the fact that he was signed off sick.

Many people will have their own views on whether a person should be sacked for going to the pub whilst off sick, with many calling it selfish, dishonest, and disrespectful to employers and colleagues. Many say that if you are well enough to go to a pub and drink then you should be well enough to work. This is not necessarily the case. There are scenarios which would prevent a worker from being able to attend at work due to illness/injury to undertake their day to day working tasks, but not necessarily prevent them from socialising.

It is not simply a matter of “well if they’re too ill to work, they can’t socialise or go out” attitude. An Employment Tribunal will expect an employer to follow all reasonable procedures in line with the ACAS Code of Practice and determine whether the dismissal was a reasonable response to the alleged misconduct. They must show that they had a reasonable belief of the employee’s guilt of the alleged misconduct, apply a reasonable procedure and investigation, and that the final sanction applied was reasonable in all of the circumstances. If there has been a failure to comply with the ACAS Code of Practice, an Employment Tribunal could decide that an employee has been unfairly dismissed on procedural grounds only.

Employees have employment rights, and this includes the right not to be unfairly dismissed (subject to being employed for a minimum of 2 years), and whilst off sick an employee is entitled to continue to live their ordinary life, which can include socialising. It could be argued that socialising, including going to the pub, could assist a person to recuperate, a principle accepted in relation to entitlement to paid holidays. It is now established that a worker continues to accrue holiday entitlement whilst off sick and can take holidays. Compensation is yet to be determined in the above case, and this will be based usually on the basic award, which is a fixed calculated sum based on a person’s age, length of service and their weekly pay, and the compensatory award, which is an award for loss of earnings.

Cases such as this can often turn on their own facts, but it does stand as a welcome reminder for employers that they should only seek to take action against an employee if this reflects real misconduct, rather than perhaps reacting to what they perceive to be an injustice to the business from a worker doing something which is an entirely normal part of daily life.

Written by Karen Oden

 

Woman wins transgender belief Tribunal appeal - Thursday, June 10, 2021

Maya Forstater worked for a business CDG and her contract of employment was not renewed after she was accused of making “transphobic” comments on Twitter. She complained of discrimination on the grounds of less favourable treatment associated with holding a philosophical belief. The Employment Tribunal had found against Ms Forstater, stating that the alleged belief was incompatible with human dignity as obviously involving misgendering others.

The belief in question concerned the fact that in the Claimant’s view there are only two biological sexes in human beings and that it is impossible for a human to change sex, notwithstanding the general law and practice associated with transgender rights. The Employment Appeal Tribunal (EAT) disagreed with the Tribunal and allowed Ms Forstater’s appeal.

The belief in question may be offensive or shocking to other people, but it was a lawful opinion and widely held by some people in society. Unless the opinion was such as to espouse violence or severe hatred, the belief in question could be held and would be protected by the Equality Act. The EAT cautioned against taking this outcome as an attack upon the protected characteristic of gender reassignment.

Employment law has always been interesting as the world of work interacts with the real world, made up of people with different opinions. The law prescribes what is expected of employers and employees, and sometimes the law struggles to codify the real world into a work environment. Over recent years the law and real life of people associated with transgender issues has developed, and often the law is playing catch up.

In this case the EAT has reminded Employment Tribunals and employers of some fairly basic principles. Sometimes you can hold a lawful view which might upset people, including work colleagues. We have an Equality Act which includes broad concepts of protection and that can include both sides of a debate. In general Employment Tribunals apply the statute as drafted and it is not generally their role to take legislation further than the text, even if that appears to be following the trend of views in society.

Personally I would hesitate to take more from this decision than the judgment I have explained, and many employers will continue to draft and apply policies designed to protect the vulnerable and to eliminate actual and perceived hatred associated with equality rights.

 

VIAM (King Construction) redundancy consultation claims - Thursday, June 10, 2021

On 1 June administrators were appointed for VIAM, previously Kings Construction as work stopped on several important road maintenance projects around Liverpool. The main depots were in Speke and Kirkdale.

More than 100 employees have been identified to be made redundant, whilst sub-contractors have also been laid off. Employees made redundant may be able to claim compensation for a failure to consult about the redundancies.

We have extensive experience at dealing with these claims on a no win-no fee basis. Usually over £4000 can be recovered for each person made redundant. This is in addition to redundancy and notice pay.

Contact us to discuss this claim. There are strict time limits which apply to Tribunal claims involving this compensation.

We only act no win-no fee on redundancy consultation claims. Speak to Steve or Karen, tel no. 0151 309 1527, or 07503 357248

 

No Woman, No Job - Wednesday, May 19, 2021

When we see an advert for babysitting, it is easy to automatically link this type of work to the female gender, forgetting that any person with the appropriate background regardless of their gender, is capable of looking after and caring for children. It seems to be an automatic assumption that the mother is the nurturing parent, with the father going out to work. Times have changed and times are still changing in terms of people’s attitude to what is considered to be a “woman’s” job.

These assumptions led recently to a claim before an Employment Tribunal with an allegation of direct sex discrimination. The Equality Act covers acts of discrimination occurring in work, but importantly a discrimination claim can be pursued over the way a person is treated when applying for work, namely before any contract of employment has even been agreed.

Recently, a father was looking for a second job to supplement his income and as he was a doting father of children himself, this seemed the ideal fit. He answered an advert for a babysitting job from a firm looking only for “mothers”. Assuming this was the target audience, he never considered that he could not apply. Like adverts and their slogans, similar to Iceland “that’s why mums go to…” he thought why not, filled in the application, clicked yes when asked if a mother as he believed it actually meant “parent” and completed the application, sending in his ID.

However, he was not prepared for the response, in which the company accused him of lying and rejected his application on the basis that he was not a mother, and informed they were only hiring women and would not consider a man. This was very upsetting to him and he said that the company were “exacerbating the claim that fathers were incompetent parents and distressing to be dismissed in this way because of my gender”. He also stated that it was an under valuation of a father’s role in childcare.

The company’s decision not to employ him based on his gender is an act of direct discrimination. His decision to take this matter to the Tribunal for sex discrimination resulted in an award for injury to feelings and loss, with the Judge adding “it was utterly ill-informed in the modern day so that the slight was more likely to be a result of ignorance than intentional harm”.

The Equality Act is in place to protect a person against acts of discrimination, including to discriminate because of their gender. It is important to act quickly if you feel that you have been discriminated against and seek the appropriate legal advice and depending on a person’s circumstances it can make the law stronger, affording a person better protection.

Written by Karen Ogden

 

Claimant gets a slice of the action after victimisation - Tuesday, May 18, 2021

A Claimant is reported as having recovered over £23000 in compensation when they won a claim in the Employment Tribunal after being excluded from the weekly “Pizza Fridays” arranged by her employer. The case is a classic example of victimisation, relating to a complaint of sex discrimination.

In 2018 the Claimant lodged a complaint of sex discrimination which was upheld against a co-worker who received a final written warning. The complainant was subsequently excluded from the weekly social event. Other staff were asked for their choice of pizza and other takeaway treats, whilst the person who had complained was not offered any choice of food or the chance to participate. This kind of action can cause the worker to feel isolated and leads to in effect a double punishment. The victim is again the loser whilst there can be a misplaced sympathy for the culprit. Another example of this can be when a person is excluded from greetings or a communal effort to make a drink.

I have a current case in which a male worker was a union representative in a mainly female workplace. The union representative raised issues for members which upset a manger. She retaliated by always entering or leaving an office by saying “good morning ladies”, or “bye ladies”, directed of course at the male worker. Once it might be slightly annoying, every day it can grind someone down and cause anxiety and upset.

Returning to the reported case, the employee lodged a Tribunal case alleging that she was being victimised for having lodged the protected act of alleging sex discrimination. The concept of legal victimisation requires a connection between a specific protected act and unfair treatment because of that protected act. Usually, the act will be a complaint about discrimination, and importantly it does not have to be about being discriminated yourself. The timing of the case (like whistle blowing) is based upon when the retaliatory treatment occurs and not when the complaint was made. Similarly, legal protection arises even when the complaint may not have been upheld.

This case is a classic claim to analyse victimisation, and it shows the level of compensation which can be recovered, which can cover loss and injury to feelings.

If you feel victimised at work contact us for further advice, and as ever in employment cases make sure that you act promptly.

 

Spoilt Child Insult Leads To Recovery Of Compensation - Thursday, May 13, 2021

The majority of people will find it daunting stepping into full time employment for the first time, particularly if it is your first job, whether young or old, and lack experience. We are all keen to impress and do our best, but sometimes an employer may take advantage of a young and inexperienced employee or even an older employee.

A 20-year-old factory worker was recently awarded £8,000.00 in compensation at an Employment Tribunal for “inherent” discrimination, meaning that it was obvious to the Tribunal why this young man was being treated less favourably, as this was on account of his age.

He had worked for his employer for 3 years and was tasked with keeping the store clear and in order. A confrontation ensued after he questioned whether other employees should also be helping with the work. His employer lost his temper, struck him, before pushing him and told him to leave. He left the premises, clocking out and writing that that he did not feel safe and as a result went to see his GP who signed him off sick for stress related reasons. The worker did not return to work.

His employer then sent a text message to the employee apologising for their actions, stating he could return to work but would need to change his attitude, and confirming that if he did not show up that he would assume he had moved on.

Aside from physically assaulting his employee, he also sent a letter to the worker calling him a “jumped up, know it all, spoilt child”, ending the letter with an assumption that he is to resign and if he did not he would be dismissed for gross misconduct.

The action of the employer was totally unacceptable, committing a fundamental breach of the contract going to the heart of the relationship. The employer breached their own procedures, together with a breach of the ACAS Code of Practice.

Looking at the actions of the employer, there were two causes of action which the employee pursued against their employer.

Discrimination - A young and inexperienced worker is just as likely to be “targeted” as an older worker as they tend not to “answer back” and simply get on with the job and demands made of them. Age discrimination is not just deemed to be associated with the older worker, and regardless of whether you are young or old, it is not acceptable or lawful to discriminate against someone based on their age. A claim can be pursued in the Tribunal whether you still work for the employer or not and compensation can be awarded for injury to feelings. In this case the employer was guilty of direct age discrimination and harassment.

Unfair Dismissal – The employer simply stated that if he did not resign, he would be dismissed for gross misconduct. This is totally unreasonable, and an employer has a duty to follow the correct ACAS Code of Practice when dismissing an employee. A claim can be pursued in the Tribunal for unfair dismissal, and an award of compensation for losses arising out of his dismissal.

Had the employee not returned to work, he would be deemed by the employer to have resigned. An employee can pursue a claim of unfair constructive dismissal, showing a fundamental breach of trust and confidence. It must always be noted that constructive dismissal claims are difficult, and the onus is on the employee to show their employer acted unlawfully. In this instance, the employee resigned promptly to the alleged discrimination, and the fact that he did not feel safe at work. This is a fundamental breakdown of trust and confidence in the employer.

Article written by Karen Ogden

 

Respecting Contract Terms, An Analysis of “Fire and Rehire” - Wednesday, May 12, 2021

Any review of the recent industrial news would confirm how the issue of contract terms has become important over the last few months. Fire and rehire has become a political as well as a workplace term, being used when an employer uses a particular mechanism to vary and impose contract terms.

An employer has a legal obligation to provide a statement of main terms of employment to an employee soon after commencing employment. That covers matters such as job role, pay rate, pension, holidays, and sick pay. Importantly the terms of a contract of employment prevail until they are changed lawfully, or for example if the contract ends by dismissal or if either party give notice.

You might question what has led to the series of public “fire and rehire” cases, such as across several of the big employers, including British Gas. Employers appear to be using the pandemic and the general economic impact to diminish the value of employment terms, in the main by reducing pay. I have seen examples of employers seeking to reduce pay and at the same time increasing hours of work, a straightforward double detriment for those in employment. Trade unions have stood up to the process, and have had support from politicians, including at mayoral level. A theme of the changes proposed has been to identify a need to make cuts whilst at the same time continuing to make substantial profits.

A contract can only be changed in particular ways to be lawful, and all employment situations evolve so that there may be legitimate reasons to change the contract for mutual benefit. The best way for terms to be changed is by agreement, reflected in either a collective agreement negotiated by a union, or by individual consent if there is no recognised union. If agreement is not possible the employer could try to impose changes, but that would expose the employer to claims for damages or for constructive dismissal. A more common approach is to change the contract using the termination method, namely “fire and rehire”.

An employment contract can be terminated on notice, determined by the terms of the contract or adopting the statutory minimum notice period, 1 week per year of employment up to 12 weeks. If a contract is terminated on notice, in law that will amount to a legal dismissal. For that dismissal to be fair the employer must have a potentially fair reason for termination, and usually in these cases it will be to try to justify dismissal on the basis of “some other substantial reason”. It is common to offer the employee the proposed new contract which includes the inferior terms as the basis for a continued work relationship.

If an employee does not accept the new terms they will be treated as dismissed and no longer in employment. They will have legal points to raise including a claim of unfair dismissal. If the new contract is signed, the employee may still be able to pursue a legal claim, but their ongoing work will only be on the basis of the new contract. There can also be arguments about the adequacy of consultation which can lead to a claim. It would be wrong to suggest that legal claims arsing out of

“fire and rehire” are straight forward, but in some cases they provide some mechanism, to fight back against diminishing contractual benefits. I am aware of one group of public sector workers who had their contracts terminated with rehire four times over about a six-year period.

Fire and rehire is all about reducing payments to workers. It takes no account of financial commitments of the employees and includes an expectation that those workers will do the same or more for less money. The law involves a complex analysis and is not always the answer. The right approach is to use every endeavour to reach agreement on changes, and in that regard collective strength for the employees is crucial. Sometimes there may only be an effective industrial response to proposed contract changes and over recent months there have been a number of examples of successful campaigns by workers represented by their unions. Any change must be justified and subject to the most careful scrutiny, and we stand ready to review all available legal options.

 

Delivering Justice Virtually - Sunday, April 25, 2021

In a recent announcement it was confirmed that the use of virtual hearings will become a permanent feature of hearings before the Employment Tribunal. The reasoning behind the decision is to assist in clearing the backlog of outstanding cases, which by February stood at over 50000 cases. Use of virtual hearings will ensure that work can continue whilst the covid restrictions remain in place, and changes in the judicial decision making process will ensure best use of resources. A judge could be at home in Kent but could hear a case from the North West Region.

Use of virtual hearings has grown during the pandemic, but it is nothing new in itself. The difference is that in previous years hearings by telephone mainly involved dealing with preliminary hearings for case management rather than full hearings involving witnesses. I have had telephone hearings before the Tribunal for many years, and they tend to be more efficiently dealt with, save time (eg travelling to and from the Tribunal hearing centre), and are less costly. Such telephone hearings could involve some lengthy and detailed discussions but when it came to a hearing with witnesses the parties plus representatives were expected to turn up at a court centre.

In the most recent announcement we have been told of a more efficient decision making process with the introduction of new legal officers to deal with some judicial functions, and the creation of a body of judges able to offer support to Regions, and generally to get on top of the current high workload. For at least two years we should expect more full hearings by video link, not by telephone, with only whistle blowing and discrimination cases mostly heard in person facing a Tribunal panel.

What then of the quality of the judicial experience. I have had misgivings about having witnesses give evidence outside of the classic court room, expecting that there is greater potential for wrong doing, less chance to scrutinise evidence, and less capacity to judge the credibility of witnesses. I dealt with a full hearing last week, involving several witnesses and a substantial bundle of documents. There were some temporary technical video glitches and occasional sound problems, but the judge and the parties cooperated sensibly to make it work, and within minutes I found that the video based process worked. If we did not have video hearings the backlog would be far higher from the last year, and there would be no immediate opportunity to catch up.

Everyone involved in Tribunal cases must embrace what will now be the common way to have cases heard, certainly for the foreseeable future. My experience is that the quality of justice can be maintained, and what is the quality of justice if a case is subject to years of delay. The whole point of the Employment Tribunal system is to provide speedy good quality resolution of workplace disputes by a specialist court. I have no doubt that issues will arise but I prefer to look at this as the chance to restore the role of the Employment Tribunal, and I recommend that those who will be hesitant should engage and be prepared to be convinced.

 

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