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Anne Dopson was unhappy in her workplace by being referenced as a grandmother, pursuing a claim of age discrimination. Ms Dopson is a grandmother and therefore the statement made was factually correct. She pursued a claim in the Employment Tribunal asserting that the grandmother link was a form of detriment, in effect making a negative comment about her age.

The Tribunal decided that the reference was discriminatory, raising an interesting point about the context of a statement. In a social context calling a person grandma or grandad may be perfectly fine, and may not cause upset. In a work context otherwise innocent comments can have a different meaning. I happened to watch a TV drama involving police co-workers, who were seen playing golf whilst waiting to interview a witness who worked at a driving range. The black officer hit a good shot and a white officer called him Tiger. The black officer replied about whether that name was only used because he is black. Think for example of an employer referring to a disabled worker in an internal report as “our man in a wheelchair”.

The decision confirms that context is everything and also that a worker should not be defined by a particular characteristic. It would be fine to identify someone as a fan of a particular football team, but if the identifying issue is one identified in the law, it may be unlawful if the connection is one causing a detriment. Some years ago I remember advising when the Age Equality Regulations were introduced, now in the Equality Act. I advised that age should no longer be a relevant factor in a workplace, and that is confirmed through the case involving Ms Dopson. The lesson for employers is to refresh training and policies associated with equality issues, and to stress the need to avoid comments linked to the protected characteristics from the Equality Act, eg age, race, disability etc.

There is another big lesson lost in the press reports. Ms Dopson waited some months after the grandmother comment before presenting her claim. There are strict time limits applying to employment law cases, including discrimination allegations, usually 3 months to start the legal process. Even though Ms Dopson pursued an internal grievance the Tribunal decided that the reference to the Claimant as grandmother was an isolated incident and that the claim had been lodged out of time, meaning that the discrimination claim failed. The lesson is to take early legal advice on what can be a technical legal area, and not to rely on the fact of pursuing a grievance as a means of extending the limitation date for lodging a Tribunal case. Every case needs consideration on its own facts but the lesson is clear, there is little point in winning if your case is lodged out of time.

 

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A few years ago I wrote an opinion piece which was published in the Law Society Gazette about racism in football. It was not about social media, instead it was about England and club teams playing away from home, and the players being greeted with racist chants and actions from the terraces. This problem continues across Europe, and my article addressed the legal issues arising from an employment perspective. This included the duty of the FA and clubs as an employer and how such duties were assessed when the risk of being subject to racist abuse was foreseeable.

How things do and do not change. I did not consider the impact of social media at the time as it was not a factor in the problem. This morning I have dealt with a Tribunal preliminary hearing for a client subjected to race discrimination in work. The client is a black man who has been called vile racist names by management, and through one of the managers telling co-workers this came to his attention. When I have explained the type of comments to colleagues and friends I have been met with some surprise, “how can this still be happening” and the like. The number of race discrimination cases I deal with confirms the scale of the problem, and of course we come back to football.

Just last weekend the European Championships ended, with the football discussion quickly giving way to the public upset about the appalling racism directed to the three black players who failed to score a penalty. I was particularly saddened by the reaction of Bukayo Saka aged 19 who has said that he knew he would face abuse as soon as the penalty was saved. No one should be surprised about racism in workplaces and in other situations when you see the depth of racist views held by people prepared to post comments with their names and contact details on social media. Almost like they have no concern about the repercussions.

The reaction to the racism has been swift and clear in the anger about how our players have been treated. What then of those responsible. Employers have started to react by suspending those identified as making racist comments online, noting that criminal charges may follow. The comments have the prospect of permanently damaging the reputation of the individuals, and their employers. There is an interesting legal analysis about how actions outside work can lead to disciplinary charges from your employer and I expect dismissals or resignations to follow with charges of gross misconduct being raised. It is interesting also about how many people have had their accounts hacked!

Racism continues to impact upon our footballers and within workplaces. The fact that I need to continue to address this issue is no surprise but it does reflect badly upon the progress made in creating a more equal society. There is clearly much more to do.

 

For some employers a failure to follow a correct procedure when disciplining employees can be costly. Some employers dismiss their employees on a “knee jerk reaction” so to speak, without following any proper procedure, based on what they consider inappropriate conduct which might justify instant summary dismissal.

There have been examples in recent days of employers dismissing employees without following a fair procedure, resulting in the employee winning in the Tribunal. Recently a nursery worker was awarded £5,000.00 by a Tribunal after she was sacked for teaching children to kick her colleague and call her “smelly”. The nursery worker was fired after a fellow carer complained that the team leader was bullying and harassing her. The Nursery Director claimed her behaviour was “sadistic”. The Employment Judge criticised the Director of the Nursery in that she “formed the view” that the worker was guilty of the harassment campaign but did not give her the opportunity to address it. The Tribunal ruled that the nursery worker was unfairly dismissed as there had been no reasonable investigation, a key procedural requirement in a conduct dismissal case.

Employees with more than 2 years of service have the right not to be unfairly dismissed. If an employer wishes to dismiss an employee, this must be done fairly. They need to show that they had reasonable grounds for believing an employee was guilty of the misconduct, that they applied a reasonable procedure and investigation, and that the final sanction applied was reasonable in all of the circumstances.

Regardless of whether an employer deems an employee’s actions as justifying summary dismissal, there is always the requirement to follow a fair procedure as identified within the minimum standards set out in the ACAS Code of Practice. Compliance with the ACAS Code of Practice is important employer because if there is a failure to comply, it must be taken into account by an Employment Tribunal when deciding if the employee has been unfairly dismissed.

As indicated above, a failure to follow a fair investigation and disciplinary procedure can be a costly mistake.

Article by Karen Ogden.

 

Those lucky enough to be at Wembley last Wednesday will no doubt always remember singing along to Three Lions and the other anthems, and celebrating when Harry Kane scored the penalty rebound. England have played in several semi-finals dating from Italia 90, and our record was unimpressive, all lost and the fans denied that step up to the final. An employee from Yorkshire has made headlines after the match for the wrong reasons.

Nina Farooqi loves football and her friend won 2 tickets for the Denmark match. She knew that her workplace has staff issues and called in sick, allowing her to travel to London. During the match cameras showed images of the unwell employee in the front row behind the goal, celebrating, and showing no sign of being ill. The images appeared widely, and were seen by the employer.

The following day Ms Farooqi was dismissed. I have no information about the process followed or Ms Farooqi’s employment status, as to whether she had employment rights. This case is consistent with others I have encountered over the years. I expect that had she been hidden on row Z the dismissal would not have occurred, but the employer appears to have dismissed Ms Farooqi because of lying about the reason for her absence. If there was more than 2 years of service, this seems to have been the quickest disciplinary process I have seen concluded for some time.

If this case was considered by a Tribunal I would not be optimistic. This type of absence breaches trust and confidence and there are few redeeming features. It could have been different. Ms Farooqi could have been open with her employer and asked for a day of holiday. If that was refused and she still went to the game, her case would have involved an allegation of unauthorised absence or failing to comply with a management instruction to attend at work. Whilst not an easy case, this would have avoided the allegation of lying, a more straight forward case to argue on the basis of the reasonableness of the decision.

It is disappointing for a fan to go from the high of victory to the low of dismissal. Many employers might have been more lenient, and perhaps would have imposed a warning. Ms Farooqi was seen wrapped in her flag and enjoying a great night. It is though a valuable lesson as to the importance of trust in an employment relationship and the risk of what you have said being undermined by the truth.

 

The Sunday news reports included a letter signed by the major retailers asking the Government to offer additional legal protection to shop workers in the face of a significant increase in assaults and abuse during the course of the pandemic. It is difficult to pinpoint why shoppers appear to be more likely to abuse a person serving them because of Covid and the period of lockdown, and if any person is identified as being guilty of such conduct, in my view a robust prosecution and sanction regime should be applied. The last 16 months has seen stress levels rise across society and my guess is that for some patience is wearing thin, with people more likely to snap. It is of course no excuse.

The retailers have sought to compare shop workers to emergency workers, who have special legal protection in criminal law if they are assaulted. The risks faced by firefighters and paramedics from their normal jobs are significant, and film of fire engines being set on fire and stones being thrown at workers is shocking. The practical issue involves the situation of workers encountering trouble whilst dealing with the public. Shop workers should be protected by their employers, and if there is a history of problems this should engage relevant measures.

The starting point is the duty of care owed by an employer to their workers. Risk assessments should be prepared after due consultation between an employer and workers, for example through trade unions and health and safety representatives and committees. The risk assessment should identify risks and measures to address the problems. For some retail staff they already work behind screens, such as in an off licence or bookmakers, and employers must decide now how to protect their workers. If the public is a danger, they need to be kept away from the staff, screens, barriers, and clear instructions of what is expected. If this does not work, extra security might be needed. What we expect of our retail experience may need to change.

During the pandemic the issue of workplace safety has become more relevant, with workers expecting greater security against infection. Workers have exercised their legal right to leave their workplaces in cases of danger and I have predicted that the pandemic will lead to a substantial number of personal injury cases, involving illness, long term problems, and cases arising from the many deaths in workplace situations. Employment law cases have also arisen when workers have reacted to unsafe workplaces and employer demands, for example over test and vaccine regimes.

When employers know about a risk they should address it, foreseeable risks of harm which are not addressed will result in claims. Employees may have criminal injury cases, but public mistreatment of workers can also lead to personal injury claims against an employer who have failed to offer protection. In an employment context I have also advised workers being abused on grounds which involve discrimination, and some cases have lead to resignation and constructive dismissal.

The frustration brought about by lockdown and Covid related issues will never excuse abuse of innocent workers, whether they are nurses in A & E or check out operators, but employers should realise that in legal terms they are primarily responsible for the safety of their workers. Government may strengthen the criminal law but that will not dilute or remove the employer’s legal duties which arise in all employment relationships.

 

The Law Society recently published a report which predicted the massive impact upon the legal profession associated with the development of artificial intelligence, AI. The prediction was for a savage reduction in jobs for lawyers, as more questions are answered automatically and without human intervention. The prediction was that those remaining would need to learn to work with robots, and the issue has caused me to reflect upon my own work and the likely impact upon me and others as AI progresses.

About 6/7 years ago I heard a speaker at a legal conference talking about using AI in the world of HR advice. He had already automated advice associated with questions relating to employment and predicted continued development. I think actually he underestimated the impact of AI, not just in HR/employment but across all sectors. We all I suspect use google or other search options to answer questions on technical issues, and as the software improves, so it becomes easier to direct your questions to more complex enquiries. The web resources already available in a few seconds to the public are likely beyond the knowledge of most so-called experts across most fields.

The extent of automated knowledge is only one part of the situation. Before the Covid pandemic, courts and Tribunals were already using virtual processes, with telephone hearings common. That process has been accelerated by the pandemic, and in-person hearings are likely to be a thing of the past. The increasing use of remote technology changes the court process, altering how advocacy works. My expectation is for reducing use of active hearings, using written submissions and processes eliminating direct human involvement. What this means for advocacy skills already is a matter of debate for the quality of justice.

Many non-contentious processes are also becoming automated and easier for non-experts to use. This includes low value RTA claims, and online systems to claim money in the County Court, to lodge probate applications and of course to buy and sell property.

There will always be the complex and high value cases requiring expert assistance and with a willingness to pay for the work. We all need a reality check about the value of our work, in a changing world.

The law is only one field impacted by AI. Probably most work areas will alter and rapidly as technology delivers more value for less cost. Think about robots in the care sector, not needing breaks and not having injuries lifting, think about your operation without a doctor needing extensive training, and your parcel delivered by a drone or driverless vehicle. Think about the jobs associated with cash handling and payment systems. How much work on a car repair is now physical compared to computer diagnostics. Finally, soon your own car might drive you home after a night out without you touching the steering wheel. I could go on.

Big business is investing heavily in the world of AI, particularly for vehicles and transport. The impact upon the education system could be significant as life choices are made, and people decide what to study and why. What looked like science fiction is closer than we think.

We should all engage with this issue now. The consequences for us all are massive, to determine how we want to live and work, and what we can all do to earn a living. We should avoid sleep walking down a road we may all regret embracing in the not too distant future. Certainly some food for thought.

 

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.

 

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

 

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.

 

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