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Employment News and Announcements 2021

Employment Related Articles, 2021 Archive

Browse our 2021 news and announcements associated with work and employment law below. Previous events may still be relevant to your current employment situation or personal circumstances.

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

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In December I wrote about the prospect of a requirement of having the vaccine as a condition of employment. I identified the legal issues which might arise.

In the last 24 hours the owner of Pimlico Plumbers has announced a plan to require workers to have the jab as a condition of employment. This would be mandatory for new starters, and for the current workforce this might include the need to vary contracts of employment, although no one is identified currently as being liable to be dismissed. The owner Charlie Mullins has offered to pay for the vaccines and expects staff to jump at the opportunity.

Pimilco Plumbers have a history of using the law to impact upon employment rights, taking claims through to the Supreme Court on the issue of worker status, and Mr Mullins has promised if necessary to go to the Supreme Court again on this point, not believing that his no jab no job policy is controversial.

I have already identified the potential pitfalls for an employer if this policy was implemented across the board, including the potential for discrimination on a case by case basis. Of course, if ultimately any employees are dismissed at any business over this issue, we might see a wave of unfair dismissal claims. In the Pimlico case it must be noted that many of the staff are not employees, and “workers” as defined might enjoy some employment rights, but not the right to complain about unfair dismissal before a Tribunal.

As for the real world, we are surrounded by media and political pressure to embrace the vaccine is the answer to our virus-related problems. In workplaces such pressure might come from employers and even co-workers, and if vaccines become necessary for travel, accessing entertainment, entering bars and the like, those deciding not to engage could easily and quickly be identified as being unreasonable and outsiders. We must all be vigilant and ensure that what seems like the right thing to do is not used to harass or punish those who may have their own justifiable reasons to be cautious.

Only this morning Business Secretary Kwasi Kwarteng has been required to distance himself from a Financial Times front page report about Government plans to reduce employment protections derived from the EU. The “48 hour” issue has been raised, a common area raised by Conservative politicians, together with other rights derived from the Working Time Regulations.

Back in 1997 The Working Time Directive was subject to implementation in UK law, the core legislation providing the legal right to minimum annual paid leave, breaks between shifts and working weeks, the right to object to working more than 48 hours each week on average, and more. The new Labour Government implemented the Directive in full and then went further by extending the right to paid leave from 4 to 5.6 weeks. I have never quite understood the objection to a right to paid holiday. It is hardly an area to dispute that by working for nearly 47 weeks each year you might need a small number of weeks off to recharge the batteries. Those objecting fail to understand the benefits in terms of productivity by having holiday, and the Directive was passed as a health and safety measure to overcome the Tory Government objection to rights derived from the Social Chapter, focussing upon the need for rest from lengthy work periods.

The plan to attack rights derived from EU law is not a surprise, and in my view will have arisen by reference to the right in question, and a philosophical objection to having to retain something with an EU origin. Think about some of the more recent equality principles derived from the EU, and long standing protections such as the TUPE Regulations, and the collective right to be consulted about redundancies. These are basic concepts in place to create balance and fairness in the workplace.

What of the 48 hour working week. I could spend time going through the flexibility in applying the limit across work sectors, the opportunity to vary the limit by collective agreement, and the averaging concepts to account for workplace demand. I could explain about the health and safety issues behind the limit, and the fact that many workers are perfectly happy to sign an opt out to exceed the limit, including to earn overtime. It is rarely raised with me as a problem in the workplace and my suspicion here is that it is a nice headline target for ministers looking to shift debate away from their COVID-19 failures and the growing awareness that that their Brexit policy and deal will lead to increasing difficulties and losses for their own business constituency. We must work hard to ensure that the rights of workers are not sacrificed as part of this vendetta against everything with an EU label.

During the pandemic it has not been as easy to define your workplace. What seemed to be so simple has evolved with many office-based workers being instructed to work from home, rather than from an office. This has continued and even when the tier system was introduced there seemed little enthusiasm amongst employers and workers to reverse that trend.

Only this week there has been publicity about some workers being put under pressure to return to work, and in the legal profession there has been concern about the court users, and whether courts are a safe working environment. Today in the Law Society Gazette a heading might surprise some: -

“Lawyers and unions threaten “legal and industrial response” over court safety”.

In a similar sign of the times the next headline is: -

“Solicitors forced into the office tell charity they feared for their jobs”.

No doubt those investing in commercial property fear the likely reduced demand for city centre office space, and the inevitable reduction in rent as supply begins to far outstrip demand. Only this morning I spoke to a client who has worked from home since March for a national retail organisation in an office role. He told me of his delight at saving nearly 3 hours each day on a train commute and several thousand pounds by not travelling by train.

There are in all these points some mixed messages and different approaches for employers and workers. Government guidance is straight forward in directing employers and workers to work from home if that is possible. In my recent experience the virtual court hearings I have dealt with have operated in a reasonable manner and if there are doubts over court or any office safety those involved should exercise caution, especially as the light might just be at the end of the tunnel, albeit I expect a long tunnel.

There is no doubt that there is pressure from some employers to try to return a workforce to a more controlled office environment. In view of the risks arising it is unfortunate that some are fearing that their caution might lead to job losses, and employers should be careful to avoid breaching contracts of employment, from discriminating for example on grounds of disability, and in subjecting whistle blowers to a detriment. Possible personal injury issues arising from an unsafe working environment are another issue altogether, noting what might be the view of insurers.

As with the jab for jobs issue, the concept of a workplace will be an ongoing and important issue. As ever those impacted by this issue should obtain legal advice if at all necessary.

There has been a lot of analysis of the pressures of homeworking, including issues relating to health and safety, use of equipment, and the fact that employees are in effect funding their own workplaces. A more subtle issue in my view relates to the method of homeworking and how individuals are being supervised.

There are many consequences of homeworking for both sides of the employment relationship, including the absence of important day to day contact, not arsing only in front of a remote screen. Relationships are built in other less formal ways, including those random conversations which occur every day, and through the more ad hoc supervision which can arise spontaneously. As someone who has supervised a department of colleagues with different levels of experience, I saw that the team would develop through the ability to walk into an office to chat about a case, and also the time spent listening to how colleagues might deal with a particular problem issue or the challenging client in a meeting or on the telephone.

The role of a team leader or supervisor can differ according to different industries and pressure can be applied through direct contact or on a virtual basis. When people work together more discussion about work related issues is undertaken face to face. The use of communication by electronic message takes away that contact between colleagues and can allow a greater level of pressure to be applied by way of depersonalisation of the message. A potentially hostile message about team targets might be delivered in a more robust way through a keyboard than face to face in a team meeting.

I have spoken to many friends, colleagues and opponents who are home working. Not everyone is suited to work on the kitchen table in front of a laptop and the feeling of isolation has been a common theme. Further, we all have different stresses on a homeworking scenario, for example a colleague might have a poor IT or internet system, slowing work output or preventing it altogether at times. This might be about not being able to download materials or being unable to communicate on completion of that settlement agreement which has a short deadline. The assumption that everything is fine also ignores pressures arising due to home circumstances (eg childcare) or personal physical or mental health issues. Not everyone is comfortable talking about their problems which can build up as time passes.

I have also encountered evidence through client discussions about management putting workers under further pressure. In a one-to-one video call, there are no other witnesses to what might be said, with express or implied pressure to work in a particular way or at certain times. I have friends who tell me about being criticised by their manager for not being online at home almost continuously, not only law firms! The homeworking dynamic blurs the line between the work and home environment, allowing some employers to believe that their employees should always be on call, not simply during standard work hours. This type of bullying can be subtle or overt.

For many the option of working at home is welcome, saving commuting time and saving on expenses of travel to work. All of that is fine but employers must ensure that those involved in management of staff understand the risks arising and have appropriate training, and support for workers. We might have a home workforce in certain sectors, but it must be on a basis which respects each other and the right to a home life as well as an existence in front of the laptop.

Discrimination unfortunately is something which happens in our society, with many of us being subjected to some form of discrimination, whether it is in school, college, the workplace or in wider society.

There is a particular characteristic which many may not know could lead to an unlawful act of discrimination, this being our hair. A schoolgirl was discriminated against by her school because of her afro hairstyle, which resulted in her being sent home from school on a regular basis. The school stated that this was “against uniform policy”, and that “afro hair” must be of reasonable size and length. The schoolgirl argued that this was an act of unlawful discrimination.

As a consequence of the discrimination towards her, the young schoolgirl pursued a claim which has resulted in an award of compensation following an Equality Act case against her school with the backing of the Equality and Human Rights Commission.

The Equality Act is a law to protect us from discrimination in relation to personal characteristics. A person should not have to endure discrimination, particularly if this is referenced to a natural part of who we are.

Subjecting someone to less favourable treatment on the grounds of their race, age, sex of disability is an act of discrimination. It is against the law to discriminate and the law is in place to protect people against these acts. We each have our own individual characteristics, and they should not be a cause for acts of discrimination, instead they should be embraced and respected. If not, the consequences might be a claim and an award of compensation, together with the consequential impact upon reputation.

Readers will no doubt have seen the articles about the recent dismissal of Callum Woodhouse, a bin collector working in Herefordshire for the local council. The story attracted publicity due to the cool headlines about a Kung fu attack on a snowman built by or for a 3 year old, and also because the story was backed up by a CCTV film of the callous attack.

The background to the story is straightforward. Woodhouse had a poor record and was clearly no angel, and he was portrayed as some type of thug after the swinging right boot destroyed the head of said snowman and no sign of Aled Jones singing anywhere in the vicinity.

On the facts I thought that dismissal was harsh. Surely an apology (allegedly refused to be given by Woodhouse) would have sufficed accompanied by a compensatory Crunchie bar for the child. That common sense approach was overtaken by a breach of trust and confidence, and the bringing of the council into disrepute, meaning that Woodhouse was in the line of fire for his rash act of seasonal violence.

The real legal story for me concerns the rights enjoyed by Woodhouse. Although the council used his services, it appears that he was not employed by the council. Instead the council had engaged a contractor to deliver the bin collection service, and said contractor had recruited workers through an agency. This created no contractual relationship between Woodhouse and the council, and Woodhouse was not an employee. Therefore, when the council told the contractor that Woodhouse was not welcome, and the contractor told the agency, our errant snowman assailant had nowhere to go for a claim.

The case confirms the legal vulnerability of workers such as Woodhouse who are entitled to complain about discrimination issues (eg disability, race etc), but are not entitled to complain about being unfairly dismissed. The most important and regularly engaged legal rights are only enjoyed by those classified as employees. Whether it is gig economy workers or agency workers, there must in my view be a formal review of employment rights to eliminate the false distinction between workers identified as having a different formal status.

For Woodhouse, he worked for the local community through the council, and his job was ended because of a council decision. Our legal system should in my view create a forum for that decision to be subject to review, and until then the case reaffirms a long established principle confirming that Kung fu skills will rarely be of assistance in the workplace.

It has been a difficult few days for some of the most powerful men in their respective positions. They do not appear now to have that same degree of power or authority, reflecting a change of attitude on opposite sides of the globe, and a new reality when it comes to what is said to colleagues in the workplace.

Recently the President of the Tokyo Olympic Organising Committee, a former Prime Minister no less, Yoshiro Mori was subject to criticism for his comments about women who are current or prospective Committee members. He observed that the women understand their place, that they talk too much, that they have difficulty finishing, that speaking time should be restricted, and that they are annoying. Having presented these carefully thought through observations Mr Mori was no doubt advised to apologise for his sexism, which he did grudgingly. However, he saw no reason to resign and proposed instead to press on as he had worked hard on the Olympic project.

Mr Mori has come under further sustained pressure and now appears to be running out of support so that he is thankfully looking at having to step down in the very near future due to public outrage. The events of recent days confirm something about the culture of Japan and what might be acceptable in a personal or professional context, and how that may be changing. My view is that had this conduct occurred in the UK the person involved might have lasted about an hour, as we have seen from time to time with UK organisations, such as the FA. The interesting point here is that Mr Mori clearly believed that he had done nothing wrong, even though his behaviour engaged (in a UK context) a protected characteristic of gender.

The Japan example is to that extent a more straightforward case involving reaction to sex discrimination. In the UK we have the Equality Act which would impact upon this conduct and my opinion is that public standards would also lead to a conclusion that a person behaving in this way cannot remain in a position of authority.

Compare the Mori issue to that of KPMG head Bill Michael, no doubt unhappy about spending a second day on the front pages. He has stepped down and is now subject to investigation for telling co-workers on a video call to stop moaning and to stop playing the victim card. I get the impression that Mr Michael probably believed that he was above criticism for what he may have thought was robust management of staff, in effect telling them to grow up! The comments were made in the context of issues arising from work during the pandemic, no doubt with individuals reflecting upon the impact upon them as workers and people. It is highly unlikely that Mr Michael touched upon any protected characteristic (assume for now no disability issue) and instead upset his colleagues due to a crass and insensitive style of management.

1 year on from the start of the pandemic and home working, the KPMG case shows a new trend which can lead to workplace problems and loss of reputation for managers. It is no longer necessary to cause offence by discrimination, instead that offence can arise from a perceived lack of understanding and insensitivity. My guess is that Mr Michael will struggle to understand that he did anything wrong, but he and others in positions of power must learn that their authority and status will only be maintained by behaviour which respects the personal feelings of their staff and does not simply comply their perceived legal obligations.

Recently a Senior Charity Executive was disciplined and suspended for breaching equality and diversity policy for racial comments towards an employee, stating that she hadn’t noticed her in a room because she was the same colour as the chair, “Oh I didn’t see you there! you’re so dark, you just blended in. Your shirt is black, the chair is black, and you’ve just sort of blended in”. The employee in question raised a complaint against her boss. As a result of raising this grievance, senior officers then tried to “get rid”. The employee was unfairly targeted, being victimised, bullied and harassed, ultimately being suspended for alleged bullying. She was cleared by the disciplinary process and allowed to return to work. On her return to work, the Tribunal was told that her role had changed and there was a dispute concerning holidays owed. As a result of the detrimental treatment, the employee went off sick due to stress, which resulted in her resignation.

The employee took the matter to a Tribunal and was awarded damages, with the Tribunal concluding that she had been “victimised”, there was no basis to dismiss her on conduct grounds and no basis to dismiss her on performance grounds. The Senior Executive clearly breached the company’s Equality and Diversity Policy and the Equality Act 2010. There can be few clearer cases of race related harassment.

Unfortunately, discrimination seems to be increasingly common in work,

with workers being subjected to some form of discrimination on different grounds. Race discrimination can be direct or indirect and does not need to be intentional. As in the case above, it can also take the form of harassment and victimisation.

The Equality Act 2010 provides protection against race discrimination and under the Act race is one of the protected characteristics. It is unlawful to discriminate against a person because of their race.

We all need to be aware of the many cultural differences within the workplace and society as a whole, remembering to be respectful of each other’s culture and race. We should all be aware of what is and is not acceptable behaviour, and discriminating against someone because of their race can result in a claim of race discrimination in the Employment Tribunal and an award of compensation.

COVID-19 is having a severe and dramatic effect on people’s lives and society as a whole, with the virus undeniably being around for many years to come. The effects of long COVID have potentially debilitating effects on people’s lives, affecting not only their physical abilities but also their mental state, which in turn is hindering their ability to work or return to work on a full-time basis. However, the Employment Minister, Mims Davies, has stated that the effect of COVID are “non-permanent or reversible, non-progressive and any disability is temporary”. No one is able to say with any amount of certainty that the effects of long COVID are not permanent.

France, Germany, Belgium and Denmark have formally recognised COVID as an occupational disease, and as a result it has recently been urged by patients and MPs that “long COVID” be classed as an occupational disease, with many people suffering long term effects of the virus. There is a long list of common long COVID symptoms like fatigue, loss of taste or smell, respiratory problems, insomnia, cardiovascular, renal, dizziness and problems with memory and concentration (brain fog), depression and anxiety, and joint pains, which can all lead to long term problems, particularly in the workplace. Up to 20% of patients reported symptoms of the disease several months after falling ill. If long COVID is recognised as an occupational disease, there could also be other monetary elements by way of state benefits.

The Equality Act legally protects people from discrimination in the workplace (potentially long-COVID). An employer has a duty under the Act to make reasonable adjustments. If a person has or is suffering a mental or physical impairment which is likely to last or has lasted in excess of 12 months, affecting their normal day to day activities, they will satisfy the definition under the Equality Act. This can also apply to someone who has a recurring long-term condition which has lasted more than 12 months.

Workers and employees would be protected and have a right not to be discriminated against as a result of their long-term symptoms associated with COVID 19, which in turn may have an adverse effect on their livelihood and threatening their financial stability. Comfort should be gained in the knowledge that they should not be discriminated against as a result of any debilitating illness, with their employer making any relevant adjustments to assist an employee or worker in returning to or continuing in their employment.

I have been shocked from time to time when learning about certain cases. Most recently I saw details of a claim pursued against Barts NHS Trust by a nurse Jeyran Panahian-Jand. The nurse had 10 years of experience and identifies herself as white. She became aware of a racial divide on a children`s ward involving an unfair allocation of work. The white nurses identified as the Essex girls had a work allocation more favourable than black colleagues, in terms of the tasks to be performed.

She then informed managers of this race discrimination and other racist behaviour, confirming the Essex/minority split. She was told to keep quiet because of upsetting colleagues, and ultimately, she was subject to disciplinary action, and was precented from working on the ward. She was frozen out within the workplace, and after false allegations were made, she was suspended.

An Employment Tribunal resolved this dispute in favour of the nurse who appears to remain in the employ of the NHS Trust. She was classed as a whistle-blower and was found to have made relevant protected disclosures of information pertaining to racism, impacting upon the public interest. The nurse was awarded over £26000 in compensation, which can include compensation for injury to feelings.

Those familiar with Tribunal whistleblowing cases will understand that it is a technical area of law, and the appearance is of a management and work group actively working together to damage the reputation of Ms Panahian-Jand, and attempting to have her removed for having the courage to raise allegations which did not actually involve personal detriment to her. A person is identified as a whistle-blower because of the information they disclose and to whom it is notified, they do not need to identify themselves as being a whistle-blower, which term is not actually used in the legislation. It can be a useful remedy available for a worker or employee in protecting their position.

The Tribunal expressed a view of the importance of this kind of case. The Employment Judge said, “race discrimination can only be identified and resolved if working people blow the whistle on it, and not necessarily those most affected by it. Here (she) spoke up when she herself was not personally affected by the acts she was complaining about.”

This case confirms the very poor circumstances which exist in some workplaces. Some of the nurses clearly had a very cushy working situation and did not like it when one of their own dared to speak out. The Claimant in this case has shown great courage and I hope the outcome will see her back in work and helping the children, and those responsible for her treatment dealt with accordingly.

I have followed the Uber and other gig economy cases over several years, and no doubt the recent Supreme Court decision is important. The chain of decisions through the different stages of appeal have been consistent, and in almost every respect have favoured the Uber drivers. I recall writing about an earlier decision and coming up with an imaginative title for the article being “They think it’s all Uber, it is now!” Well, not entirely original.

In my view the Supreme Court decision was no surprise. The reasoning from other appellate courts had been clear and persuasive. The conclusion of the appeal process will provide certainty and will no doubt create a body of study for students over coming years. I also welcome the clarity provided for the gig economy workers, with the law adopting a practical and realistic approach to the working relationship.

Of more interest to me is to analyse what was missing from the publicity. Reference was made to the status of being a worker and entitlement to the minimum wage and paid leave under the Working Time Regulations. That’s fine but I wonder if those watching the news understand the difference between workers and employees. I might recognise that workers do enjoy some other employment rights, but surely a key issue is why we live with this essentially false status distinction.

Successive governments have failed to create a level playing field by legislation, ensuring that all of those in a work/employer relationship have the same rights. The Uber drivers might well get paid leave but if they are not employees they will not receive statutory notice pay, redundancy pay, or have the right to claim unfair dismissal. I would have liked to hear that analysis which still means that Uber drivers have in truth very few rights and are vulnerable. I do not see this as being a priority for the current government.

A final point is also an issue away from the gig economy. I have been asked recently to review a contract for a factory worker, who works 5 days each week for a single business, and has a fixed rota. Upon review the contract was in reality an Uber style gig contract, with every effort being made to deny the existence of a contract of employment. It is only an attempt to deny standard right to the worker. I have advised on the importance of examining the substance of the relationship and not to focus on the label. However, not everyone is ready or able to challenge a written contract or to understand that the contract may not be legally effective. Not everyone can fund a claim in a Tribunal to question the validity of the contract, especially if they are not in a union. That really will be a challenge for us all if a wider range of businesses try to adopt the tactics of gig employers.

Philip Rutnam resigned from his role as the senior civil servant in the Home Office raising allegations of bullying against his boss, Secretary of State Priti Patel. He alleged that there had been a vicious and orchestrated briefing campaign against him after trying to get Ms Patel to change her behaviour. There have been wider allegations raised against Ms Patel in relation to how other staff were treated, denied by her, and a report was published some weeks ago.

My interest has involved the specific circumstances involving Mr Rutnam and what happened after he resigned. It has been reported that he pursued an unfair dismissal claim against the Government, and this must have been a constructive dismissal case. The press reports this week referred to the case being settled for £340k and payment of costs, capped at £30k. On the Government side I expect that the costs are likely to be substantial, meaning an outlay to the public purse of over £400k.

An unfair dismissal case only will lead to compensation of the lesser sum of a year of earnings or the statutory maximum, currently £88519, in addition to the equivalent of a statutory redundancy payment. How then might the award be £340k by agreement, with Mr Rutnam earning around £150k each year, no doubt plus pension. Further, the Employment Tribunal does not usually award costs, and my guess is that the deal reflects certain additional factors. On costs, I expect that the Home Office agreed such generous terms simply to kill the case and avoid a hearing in public which would have likely required Ms Patel and officials to give evidence on oath.

As regards the value of the case, again there may be a premium to reflect the value of closing out a deal. I also expect that this is not only an unfair dismissal case, despite the reports. In reporting allegations against Ms Patel during employment I expect that the claim raised allegations satisfying the requirements of a protected disclosure under the Employment Rights Act, namely the whistle blowing provisions. This can involve a claim pursued against an individual such as the Home Secretary and a claim for damages for injury to feelings. Compensation is uncapped, explaining the reference to £340k.

Whistle blowing is a useful addition to an unfair dismissal claim in the right circumstances and can enhance remedy in negotiations and at Tribunal. In this case the public have ended up paying a substantial sum to cover the actions of a senior Minister, and probably double with costs. It is fine denying allegations but it is easy to use someone else’s money to back out of defending your actions in a public forum.

I expect that like many readers, I have found it difficult to avoid hearing about the interview given by Harry and Meghan, resulting in some very serious allegations being raised against the institution of the monarchy and the media. This has included allegations of racism, and an impact upon Meghan’s mental health causing her to contemplate suicide.

There appear to be opposing sides in the fallout from the interview but it is difficult to dismiss threats of suicide, and to dismiss mental health concerns which by necessity involve a personal reaction to events. Over the last year, we have heard many references to the impact of the pandemic upon the mental health of the population, and other members of the Windsor family have spoken out more than once about the importance of understanding mental health issues. It would be unfortunate now if all of those commentators watching Meghan forget about these points, dismissing her evidence as some type of slight on the Queen, almost a conclusion that it cannot be true.

I wanted to think outside of the wider analysis when considering the position of Meghan as a new member of the family and a “working Royal”. Meghan referred to seeking help from the HR function in the Palace about how she was feeling and being told that she could not be helped as she was not an employee.

This is a matter of evidence and my view is that it will be a serious omission if Meghan was turned away in the way described. I very much doubt that she was given a formal contract when commencing her duties for the family, and no doubt a Tribunal would be reluctant to determine that Meghan was employed by the Queen or the UK Government, meaning that her rights were limited, and the legal obligations towards her may have been non existent. Meghan found herself thinking about how her rights might be protected without a union to help her, and without any formal employment status.

If we reflect upon Meghan’s role, she was part of an organisation, undertaking work under supervision from the family hierarchy. The payment through public payments might be described as a form of wage for the public service. I wonder how a Tribunal would react when a person working for an undertaking was denied any assistance when a request was made, effectively denying responsibility for the well-being of the individual, and failing to think about the health and safety of the individual. It is a further example of the vulnerability of a person working without formal status, particularly being an employee.

I recognise that this may be an unlikely analysis but it is not a hopeless point to conclude that Meghan may well have been a worker as defined. We are sometime on from Meghan’s departure from her official duties, so any claim is likely well out of time. That being said if you encounter Meghan and she is interested in this analysis, you might ask her to give me a call.

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.

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.

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. As a result of pursuing this claim to the Tribunal, he was awarded compensation for unfair dismissal and also injury to feelings in relation to the discrimination. If you are being treated unfairly at work always take prompt legal advice.

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.

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.

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.

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.

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.

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.

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.

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

E mail sjp@stephenpinder.co.uk

karen@stephenpinder.co.uk

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

E mail sjp@stephenpinder.co.uk

karen@stephenpinder.co.uk

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

E mail sjp@stephenpinder.co.uk

karen@stephenpinder.co.uk

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

I recently posted about VIAM/Kings Construction and the reaction has been good, reflecting the difficulty faced by those being made redundant without consultation.

Remember that there are strict time limits which apply to protective award claims in the Employment Tribunal and every person has to pursue an individual case. If you are not a Claimant you can not recover a protective award from The Insolvency Service.

If you are involved or know someone who may need assistance refer them to us for advice, contact details;

0151 309 1527.

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.

My guess is that from time to time every worker has had something to say about their employer which will have been unflattering. When that was a comment in the pub or going home after work, it was in the main a private discussion, usually between friends or co-workers. How time has changed, and the increase in cases of dismissal arising from social media activity confirms the risks for workers when making comments about their employers, managers or co-workers.

Over the last few years I have advised about several dismissals due to posts on Facebook, some very serious and others flippant. My clients have been accused of discriminating against colleagues, threatening criminal damage and bringing the employer into disrepute. The legal issues arising can be complex, reflecting points about privacy, freedom of expression, and also the border between the world of work and a person’s private time. When will a comment made on Facebook entitle an employer to discipline an employee?

As a legal area I have found this to be difficult territory for employees, and Tribunals in my experience have been ready to apply the standard reasonableness test in a generous way for employers looking to control the actions of their workforce, including when outside of work. Most larger employers now publish extensive social media policies and rules, and my usual advice is not to make any statement about an employer on a public platform. Even a humorous comment can be misconstrued.

It was encouraging to read reports recently about a case concerning a woman disciplined for referring to a manager as a young idiot, on a Facebook group she believed to be extremely limited in number and private. When the employer learned of her views the employee was disciplined and received a final written warning. The employee later complained about a conflict of interest as between some of the managers involved in her disciplinary case due to a personal relationship, and she was subsequently dismissed.

The Tribunal found in favour of the employee, deciding that the misconduct alleged could not have justified even the warring, that the dismissal was manifestly unfair, that the employer was not prepared to listen, and also involving a failure to follow fair processes. The award of compensation exceeded £8000.

I accept that social media posts can cause damage to an employer’s reputation, particularly as an online presence becomes increasingly important. I am though a believer in the right to have a view, and also a right to offend the views of others. What might be upsetting is not necessarily unlawful, and our ability to disagree and to disapprove is a feature of a free society. Whilst employers will continue to try to control lives inside and out of the workplace, the Tribunals should in my view recognise the importance of a private life and the ability to comment. The case above is a reminder to employers of the limit on control, but I stand by my advice about avoiding work related comments on any public platform.

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.

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.

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.

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.

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..

In about December 2020 I wrote my first review of the impact of the covid vaccine in relation to employment, I recall that the piece even referred to the “no jab-no job” analysis. A further article followed earlier this year when the media had started to focus blame upon those not having the vaccine, identifying those preferring not have the vaccine as being selfish. The latest script involves warning the younger refuseniks that their stance will mean that they may not be able to have as much fun. The potential limits on the value of the double jab is though reflected in the fact that entry to Premier League football matches may require the double jab, a recent negative test, and a mask to be worn inside the stadium. If that happens, freedom day may have a new meaning.

I recently advised a client on a new covid issue, at least for me. My client could do his job in the stores, but had some serious underlying problem health conditions. He was advised to shield to protect himself and was absent from work. It appears that the employer treated this as sickness absence and after a few months my client was in receipt of no pay. After being off for several months the employer flagged up that the absence had engaged the capability procedure.

The employer threatened to arrange a hearing with a view to possible dismissal as my client was continuing to shield. I was pleased that the situation was resolved by agreement following negotiations involving my client’s trade union representative, with a decent termination payment under a settlement agreement. I had not encountered this scenario before, involving a capability dismissal threatened for a person capable of working, and prior to the shielding instruction having a good attendance record.

My advice focused upon the reasonableness test for unfair dismissal, noting that the stores work could be done on a temporary basis by someone covering the role, and that the employee was in effect following Government and medical advice. My client was also likely to be classed as a disabled person, due to the underlying conditions, and I planned to pursue allegations of discrimination related to reasonable adjustments and discrimination arising from the disability. What could have been an interesting case was curtailed by the deal, but I expect and hope that an Employment Tribunal would have taken some persuading that the employer’s approach was lawful.

In the end the employer got rid of their employee, even though it cost them. Another factor relevant to my client’s decision is becoming an area of difficulty for employees considering starting a Tribunal case. I am having Tribunal hearings listed in discrimination cases up to March 2023. This delay is impacting negatively upon the interests of justice, and I know that my client ultimately took the offer in part to secure something now. Justice delayed is justice denied and the prospect of waiting up to two years to get into a Tribunal on the “interesting case” was always coming second to the tax free lump sum paid into the bank the following week.

We act for former employees of the above Liverpool based construction company which went into administration on 1 June 2021. We are pursuing Tribunal claims for a failure to consult over the redundancies and some of our clients have also claimed for notice pay, redundancy pay and holiday pay not received.

All employees made redundant will be entitled to seek the protective award and up to 8 weeks of pay due to the failure to consult, even if you had very short service.

You will only receive the compensation if you are a Claimant and the time limit to bring a claim will expire on 31 August 2021. If you do not claim by then your claim will be out of time. We will accept new claims for clients up 26 August. Ideally we would like to start your claim as soon as possible.

Remember we act no win no fee and you are eligible to join the group claim we have started in the Tribunal.

Get in touch by phone 0151 3091527 or 07503 357248, or by email

karen@stephenpinder.co.uk

sjp@stephenpinder.

Don’t miss out, claim before it’s too late

As a society, discrimination is no longer acceptable whether in the workplace or not. Gone are the days when mere “banter” was acceptable and for the majority of us, we took this in our stride, trying to fit in and be part of a group in a workplace.

A person should not have to endure discriminatory or racist comments or even take part in office banter merely to fit in and be accepted, or to fear losing their job if they do not take part, in what many people will describe as harmless fun and banter between colleagues. Where do you draw the line? A person’s mental wellbeing can be affected by crude and humiliating comments regardless of whether they appear to be accepting of it or not. This was the case for a car salesman, who recently won an unfair dismissal claim. .

A British Asian man joined a dealership, which was male dominated. From the commencement of his employment he was subjected to racist nicknames and practical jokes, such as being known as “poppadom”. In an effort to fit in with his work colleagues he went along with the jokes. A works WhatsApp group was even set up when sales staff were put on furlough, where the crude and offensive jokes continued..

He felt that he had no choice but to go along with this behaviour as he did not want to be an “outsider”, he was trying to integrate and to not lose his job. However, this changed when on a visit to the showroom with his son on a day off, a male colleague threw a banana on the floor as he wanted to see how he reacted. .

Being unable to endure the comments any longer, he complained but his complaints were not taken seriously and as a result went on sick leave. He later raised a grievance to his bosses about the treatment he was receiving, particularly in relation to one colleague. However, to his surprise he was later sacked on charges of race and sex harassment towards his white colleague, on the basis of racially offensive memes and jokes shared in a WhatsApp group. His colleague had however resigned before facing any disciplinary action, but he did send to bosses screenshots of the WhatsApp chat in which they shared memes..

An Employment Judge ruled there was no evidence that his work colleague was offended by his messages and the wider office culture was not investigated or considered. The Judge criticised the working environment at the dealership, explaining that the culture was “laddish”, crude and immature and this manifested in the day-to-day interactions in the workplace on the sales floor. The Employment Judge found that the comments amounted to deliberate and aggressive expressions of misogyny, hostility towards homosexuality and racism. In continuing, the Judge stated, “that sort of culture allows other forms of offensive language and behaviour to be excused under the misnomer of “banter”. The Judge further stating, “the messages are a product of the culture he came into and which has been allowed to normalise without censure by the employer’s lower management.” The Tribunal resolved the case in favour of the Claimant, with compensation to be assessed..

We should never feel under pressure to fit in and be part of a working environment by subjecting people to or joining in with office banter which demeans, humiliates, or embarrasses a fellow work colleague. We should not feel pressured to take part and conform to this type of behaviour. An employer has a duty to protect their employees and they have a duty to investigate when an employee raises an issue with any form of discrimination..

By discriminating against someone, this means that you are treating them less favourably because of something which is unlawful e.g. a person’s gender, race, or disability. The Equality Act protects a person from discrimination and race is one of the nine protected characteristics in the Act and the legislation is there to protect people against discrimination. If you believe that you are the victim of discrimination contact us for further advice, remembering that there are strict time limits which apply..

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