Employment News and Announcements

An Employment Tribunal has awarded £47000 to a former Tesco worker Toby King, who complained that he was the victim of sex discrimination. Mr King worked as a customer assistant in a store and became engaged in a row with his female manager about pre-Christmas flexibility to work additional hours. Mr King also had another job and was studying, and was unable to take on additional hours. Later, Mr King was in an office with his manager to discuss the hours issue and became anxious and wanted to leave the office. The manager refused to allow the door to open and amongst other things wedged her foot against the door. Mr King who suffers from PTSD managed to leave and complained about being subject to intimidation and falsely imprisoned.

Mr King suffered a relapse in his medical condition and was unable to work after Tesco management refused to treat his complaints seriously. He was told that he was a big man and that he should not have been intimidated by his manager, a 5 ft 4 pregnant woman, as he is 6ft tall. After having time off due to his medical condition he was dismissed for reasons of gross misconduct as he was said not to have kept in touch with the employer. The award of £47000 included about £31000 for injury to feelings which is into the higher band of possible awards.

The case was reported as a sex discrimination claim, involving the Tribunal concluding that the decisions in the case were influenced by the relative size of those involved. The employer failed to investigate the complaints or the allegations due to gender related bias, with the Judge stating that complaints of a similar kind made by a woman would not have been dealt with in the same way. I am slightly surprised that this was not also identified as a matter involving disability discrimination by reference to the PTSD.

The case raises some interesting points about treating employees in the same way, independent of any preconceived bias. Tesco management fell into error by assuming that a bigger man should be more robust in the face of unfair treatment, by ignoring the personal circumstances of the individual and the inevitable anxiety arising from being treated in this way by a manager. Employers should treat workers in the same way, and company policies should be applied for the benefit of all. In this case that did not happen and the Judge concluded further that a woman would not have been dismissed in the same situation.

My guess is that Mr King was unable to pursue an unfair dismissal case due to his length of service, and in this case, he could avail himself of the chance to pursue a Tribunal claim based upon allegations of discrimination. The case highlights the risk to an employer of discriminating such that a claim engages the right to claim compensation for injury to feelings and unlimited damages. The discriminating employer may not know everything about their employee, and the degree of upset and injury to feelings is about the individual worker who may already be vulnerable due to a medical condition about which the employer is unaware. I have another case involving a man being told to “man up” during a dispute by a female manager in front of a room full of women co-workers, and his case involves allegations of sex discrimination. The case just seems to have better prospects of success now.

Antony Ryan was brought up in Liverpool but worked as a bus driver in Scotland. He attended a grievance hearing with a co-worker during which it was alleged by the employer that Mr Ryan and his colleague became agitated. At this point the HR officer is said to have told the employees, “…you boys need to go and calm down, calm down”, with this being a well-known phrase derived from the Harry Enfield sketch show, relating to three scousers. Mr Ryan then absented himself from work telling his employer that he was so insulted that he could not work, including for health and safety reasons involving fitness to drive. The following week he was dismissed.

The Claimant Mr Ryan pursued various claims in the Employment Tribunal, all of which were struck out as having no prospect of success at a preliminary hearing. During the hearing, the Judge was critical of the employer for showing a lack of respect to those involved in the grievance hearing, and stated that the comment was uncalled for. It was recognised as a form of words which mocked people from Liverpool and could clearly be seen to and did have the capacity to cause upset. The main case advanced by Mr Ryan was to allege that he was discriminated against on the grounds of race, as his Scottish employer had discriminated against him by reference to an identifiable region of England. The Tribunal concluded that the treatment of the Claimant was for reasons associated with his Liverpool background and not because he was English. The ACAS guidance in this area supported this outcome. Sadly for the Claimant his case was dismissed.

I have no idea whether the Claimant will appeal the decision but it is in my view a decision which will be upheld if he does so. The less favourable treatment under the Equality Act must focus upon a relevant protected characteristic, eg race, gender, disability etc. If the case does not do so, a Tribunal has almost no power to stretch the wording of the legislation. Mr Ryan may have been treated in an unprofessional way which upset him, but that does not create a cause of action of itself.

An inevitable question is why Mr Ryan ran a race-based claim. Readers will have seen previous articles referring to the gaining of employment rights. An employee needs to have worked for 2 years before acquiring the right to claim to be unfairly dismissed. Mr Ryan had about 6 months of service and he was therefore unable to pursue an unfair dismissal case. The more difficult discrimination case hit the strike out rocks due to the technical nature of the claim. I have thought about how Mr Ryan might have dealt with the case in other circumstances. If an employee had 2 years of service and was being mocked or insulted by their employer, in serious cases they might resign and claim to be constructively and unfairly dismissed. If dismissed for a reaction to an insult the employer`s decision could of course be challenged with an unfair dismissal claim.

Employment rights are the key to many of these situations. I have come across many examples of workers bringing claims for discrimination, whistleblowing and the like when they have less than 2 years of service. That is because such cases do not require any period of service to have the right to start a Tribunal case. The Ryan case is an example of why that is often a difficult task unless the facts support what is being alleged. Some good advice for employers is that it will rarely be helpful to tell any person to calm down, certainly not a person from my locality and telling them twice.

The headlines today have sent the clearest message to the Government concerning the decision to change the way in which alleged misconduct of MPs is managed. MP Owen Paterson was found to have breached the rules by lobbying on behalf of businesses on numerous occasions, for financial reward. I have read different figures as regards the scale of payments but the lower end of the range is at least £80000. The relevant and approved committee for determining guilt and sanction found that he was guilty on a unanimous basis, with the light sentence being a 30 day suspension.

The Government then decided to support an amendment to the motion proposed by former Minister Andrea Leadsom to stay the decision on Mr Paterson, and instead to provide for a 3 month review of the process to include analysis of the decision relating to Mr Paterson. The result would have been to give Mr Paterson an opportunity to overturn the decision and to avoid both the finding and sanction. The inevitable reaction has been to reflect upon the motivation for Ms Leadsom’s motion, namely wanting to change the rules to favour your mates. I understand that there are many other cases in the pipeline involving other Tory MPs. I have now read that the Government is “reflecting” upon their stance, in my view a reaction to the very negative press involving usually favourable media organisations.

It is only a few weeks since the very negative press involving the lobbying undertaken by former PM David Cameron on behalf of Greensill Capital, and the Government`s stance ignored that issue, and the history of the reason why MPs have their conduct subject to scrutiny. It is not that long since MPs were found to have acted improperly in relation to how expenses were claimed, and that scandal also seems to have been forgotten by the Government. If our MPs and the Government are not open to independent scrutiny it must in my view call into question their legitimacy. Many might question why they should obey the rules if MPs refuse to do so. The sums of money involved are eye watering and it is in my view unfair for any individual or business to have more direct access to ministers if they can pay and have the right friends. Whatever party an MP is from should not impact upon their compliance with their duty as an MP. To decide now to change rules, to I expect allow more latitude for such improper behaviour will do nothing to improve standards or to increase public respect for politicians.

Johnson spoke in Parliament and drew an analogy with employment rights, referring to procedural standards, including the right of appeal. MPs are not working for an employer in the ordinary sense, they are public servants trusted to represent the people and to govern through supervision of the Government. The standards expected are clear, not being to use your position for personal gain and to help friends to exercise secret influence over policy and future legislation. Contrary to what Johnson has said, in an ordinary workplace a person would most likely be dismissed (or even prosecuted) if they used their position to privately gain massive sums of money, outside of their ordinary salary. His analogy is misplaced, and everyone apart from him and his friends understands this. Even a number of Tory MPs defied a 3-line whip to vote against the Leadsom amendment. When would a Government whip MPs over a matter of general importance for Parliament rather than being about Government policy. They should never do it.

If the Government does now back down, Mr Paterson will be told to accept his suspension and to keep quiet. It will though remain more than an error of judgement by Johnson, and their climb down will not be because they think what they were proposing was wrong. I hope those who have supported this incompetent and sleaze driven Government will recognise what has happened this week when they next approach the ballot box.

Xandra Samson was a nurse at Ealing Hospital before being dismissed after an alleged failure to cooperate with psychiatric help provided by her employing Trust. Ms Samson had alleged that poor heating and ventilation had altered her state of mind, a matter being reported as having a type of hypnotic impact which allowed her employer to monitor her. The condition was self diagnosed by the employee as ideomotor phenomenon, which the Employment Tribunal could not determine to have any meaning.

Ms Samson stated that a consequence of her condition was that she had many symptoms, including flatulence. Inevitably this was picked up by the media, with various headlines involving farting and hypnosis. Aside from the possible comedy angle this is a serious case. Ms Samson was subject to medical enquiry by her employer through different medical experts. She was dismissed due to the issues arising upon her capacity to work and a lack of cooperation. Two claims appear to have been pursued.

Firstly, Ms Samson claimed to be unfairly dismissed, and that claim failed. My assumption is that she was dismissed due to a lack of capability, and that the employer had done everything possible to address her conditions, and had undertaken necessary investigations, such that dismissal was a fair sanction.

Secondly, Ms Samson alleged that her mental health condition was a mental impairment amounting to a disability for the purposes of the Equality Act. The Tribunal decided that the Claimant was not the victim of discrimination, and my assumption is that the Tribunal concluded that any less favourable treatment was justified by the employer, having taken all necessary steps to resolve the position short of dismissal.

The case is a reminder for both employees and employers as to the standards of conduct expected in dealing with ill health issues, and investigation of how an employee’s issues might be accommodated. I am in little doubt that Ms Samson has a mental impairment, albeit one with unusual features, but being a disabled person does not require an employer to address every concern raised by a worker, and the case confirmed again the answer to a question I am often asked, namely that it is frequently lawful to dismiss a disabled person. The real issue is to focus on the facts of each case and to apply the law to those facts, and the often complex issues arising. Disability is a key issue in the workplace and the legislation exists to assist workers and to direct employers as to how that must be done.
 

The law prescribes the circumstances when an employer must consult prior to declaring redundancies, derived from the TULR(C) Act 1992. The obligation arises when 20 or more redundancies are planned as part of an exercise, and if less than 100 are contemplated the consultation must be for at least 30 days. More than 100 will engage an obligation of at least 45 days of consultation, it was 90 days until a law change over recent years which reduced by half the protection afforded to workers who may be about to lose their jobs.

If an employer plans to declare redundancies and proposes to try to comply with the law the consultation should be undertaken with a view to reaching agreement about ways of avoiding the dismissals, reducing the number of redundancies, and mitigating the impact of the redundancies. Only last week I was asked whether an employer telling a trade union that there would be redundancies would satisfy the legal obligation. The answer is that it does not satisfy the areas outlined above because consultation is not the same as information. To tell a union or workers particular information is not being open to changing your mind about a plan.

Reference is made above to a union. If an employer recognises a union the information about what is happening and more importantly the consultation must be with the union. Absent a recognised union the employer must take steps to elect representatives of the workforce to conduct the consultation, and in some cases consultation can take place with individual employees. A failure to comply with the law can lead to a claim in the Employment Tribunal to seek compensation of up to 90 days of pay. This is known as a protective award, and stands as a claim on top of any entitlement to redundancy and notice pay. Up to 8 weeks of a protective award can be recovered from the State Redundancy Fund through The Insolvency Service.

This claim area can involve some technical points, including the identity of the Claimant in the Tribunal case. In union related claims the relevant Claimant will usually be the union itself as an organisation. Those proposing to lodge a protective award claim would be acting sensibly in securing prompt legal advice, noting that there is a strict 3 month time limit to start the Tribunal legal process.

Protective award cases can be defended by an employer, for example if they have actually consulted correctly. An employer can seek to excuse a failure to consult if there were special reasons to justify the lack of compliance. Special reasons must justify the failure and the employer must still have taken such steps as were possible to comply. A major business collapse in recent years involved Carillion, and impacted upon many public sector projects. Carillion failed to consult and raised a special reasons defence, referring to sudden lack of support from lenders and Government. The Employment Appeal Tribunal has decided that the circumstances were not good enough reasons to satisfy the relevant legal principles. The company had every chance to anticipate the financial problems and to consult. By allowing the problems to progress the company was unable to rely upon the final difficulty, to justify concealment of the issues, with the collapse having an inevitable impact upon jobs.

This EAT decision is a very welcome outcome for unions and employees. A business is not permitted to withhold important information from a union and their workforce, to blame others when events finally conspire to lead to redundancies. The law requires an employer to anticipate problems and to consult over large scale redundancies for “at least” the time periods set out in the legislation. Any other outcome would have undermined the purpose of consultation and in effect allowed failing businesses to keep their financial problems secret. The answer is openness and when a business fails, employees must be ready to invite a Tribunal to award the highest level of compensation.