Thursday, 4 February 2016

FEBRUARY EDITION EMPLOYMENT LAW NEWSLETTER

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser
Hello  << Test First Name >> ,

   Is it too late to wish you a happy new year?   Apologies, and on a personal note,  as you may know I'm based in Hebden Bridge,  and we had something of damp New year with the flooding!      The town will take a while to get back to anything like normal, and the local, mostly small businesses, will all need help getting back on their feet.      We will survive though, there is a great community in Hebden Bridge.       What connection could our misfortune have to employment law,  I hear you ask?     Well,  apart from the very tiniest of businesses, most have employees,  and if your business has to close as a result of force majeure  do you know what your employees are entitled to?     Basically,  they are entitled to their wages even if you have to send them home.    The solution is simple, you must have a clause in your contract to allow for "lay-off".  This is not the same as a zero hours contract, don't confuse the two. 
        
Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul
 

First The News:

  "GAY CAKE CASE"  POSTPONED  
This week, the Northern Ireland Court of Appeal was expected to hear the high-profile case of a bakery accused of discriminating against a customer when it refused to make a cake with a slogan supporting same-sex marriage. However, the case was adjourned and rescheduled for 9 May 2016. Stephen Simpson rounds up five more examples of cases in which individuals objected to providing a service to a gay person on the basis of religious beliefs.
In its judgment of 19 May 2015, the Northern Ireland county court in Lee v Ashers Baking Co Ltd and others accepted that the bakery committed sexual orientation discrimination when it refused to fulfil the order for the cake.
The bakery appealed against the county court decision, with the appeal expected to be heard on 3 February 2016. However, the case was adjourned on 3 February, and has been rescheduled for 9 May 2016.
 read full review of this years cases on this topic  on my blog page  read here    

And my thanks to Personnel Today for their alway. see them at:  
 
 Five reasons why companies lose employment cases
 
There is often much more to whether companies win or lose employment cases than the pure legal merits of the case. Natasha Adom offers some hints and tips to increase the chances of winning. 

1. They are not likeable

When a legal case could be successfully argued both ways (which is often the case in claims that go to a full hearing) judges will naturally side with who they believe is the “good guy”. So what can you do to improve your likeability factor?

My comment :   Do read this interesting article on presentation,  if you ever watch (as I do ) legal dramas,    you'll understand that image can play an important role "on the day"
see my blog item

 
and as always my thanks to Personnel Today magazine for their excellent copy.

 

And finally tonight!

Ten ways disciplinary procedures can go wrong for employers
 
There is nothing more frustrating for employers than discovering that an employee dismissed for blatant misconduct has an arguable claim for unfair dismissal. Katherine Pope identifies the top 10 examples of how disciplinary procedures can go wrong for employers.

1. HR involvement in decision-making

Managers carrying out disciplinary investigations and hearings will usually rely on guidance from HR as to policy and procedure, as well as previous disciplinary sanctions for the purposes of consistency.
However, HR involvement should not stray into assessments of the employee’s credibility or culpability.


My Comment: if you're treating yourself to a coffee break,  do read this article,   it compliments the previous item on losing at tribunal, and shows that often,   it's "how"   you play the game.    read more
 


 

 
Tweet
Forward to Friend
Share
Call Me On 
0779 269 7399
Or Connect with me...
Website
Website
Twitter
Twitter
LinkedIn
LinkedIn
Email
Email

Health& Safety Myths

A light hearted look at some of the idiotic things we hear.

Case 388 - a Council ban


 

Issue

Refuse collection workers in Colchester have been banned from wearing Christmas hats or anything Christmassy on the grounds of health and safety. The council have stated drivers and other road users could be distracted.

Panel opinion

There is no health and safety legislation that prevents refuse collectors wearing Santa hats or entering the festive spirit with other modest decorations. Excessive displays which might impede the driver's vision or cause a distraction are another matter, but that doesn't seem to be the case here. Being sensible about health and safety can still allow everyone to have some fun too!

Case 385 boys & girls


 

Issue

A bus company providing contracted service to a school stated that they separated boys and girls on their school bus in order to comply with health and safety regulations.

Panel opinion

There is certainly no specific health and safety at work legislation that requires boys and girls to be separated on school buses. But bus operators do need to find practical ways to control rowdy behaviour. This is primarily an issue of good discipline, and pupils moving about a bus or misbehaving can create real dangers for themselves, others on the bus and other road users if the driver is distracted.


As always my thanks to the HSE site for these stories.    see them at:
 
 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2016 paul murray HR consultant, All rights reserved.
I send this to all my valued clients, colleagues and people I've actually spoken to, if you find this an intrusion, my apologies, please just unsubscribe.

Our mailing address is:
paul murray HR consultant
Waterside Fold
Hebden Bridge, West Yorkshire HX7 8JD
United Kingdom

Add us to your address book


unsubscribe from this list    update subscription preferences

Email Marketing Powered by MailChimp

Ten ways disciplinary procedures can go wrong for employers

There is nothing more frustrating for employers than discovering that an employee dismissed for blatant misconduct has an arguable claim for unfair dismissal. Katherine Pope identifies the top 10 examples of how disciplinary procedures can go wrong for employers.

1. HR involvement in decision-making

Managers carrying out disciplinary investigations and hearings will usually rely on guidance from HR as to policy and procedure, as well as previous disciplinary sanctions for the purposes of consistency.
However, HR involvement should not stray into assessments of the employee’s credibility or culpability.
In Ramphal v Department for Transport, a number of amendments were made to the investigating manager’s draft report and recommendations, following HR involvement.
The recommended sanction increased from a final written warning to summary dismissal for gross misconduct. This suggested that the disciplinary outcome had been improperly influenced by HR and was potentially unfair.
It is for the decision-making manager to decide if he or she is satisfied that the employee committed the misconduct and what the disciplinary outcome should be.
HR advisers should restrict their involvement to issues of law, policy and procedure, and should avoid giving advice on the appropriate sanction, other than to address issues of consistency.

2. Dismissing for a reason not covered by your disciplinary policy

Disciplinary procedures

Model disciplinary procedure
Employers should ensure that their approach complies with all relevant policies, not just the disciplinary procedure.
Whistleblowing and grievance procedures, or policies covering activities outside the workplace, may also be relevant. Once an employer has decided what is acceptable conduct for employees and prepared policies accordingly, these need to be followed.
In McElroy v Cambridgeshire Community Services NHS Trust, an employee was dismissed for coming to work smelling of alcohol.
However, the employer’s substance misuse policy did not ban employees from drinking alcohol before work. Under the policy, the employer offered assistance and support for alcohol misuse, and stated that the disciplinary policy would be applied in cases of continued misuse, or where there was an adverse impact on performance.
The employment tribunal found that, as this threshold had not been reached, the dismissal was unfair.
On the other hand, employers must bear in mind that a dismissal will not necessarily be fair just because the act in question is listed in the employer’s disciplinary policy as an example of gross misconduct.
A fair procedure and consideration of any mitigating factors are still required and the tribunal will still consider if the decision to dismiss was fair in all the circumstances.

3. Relying on breach of implied contractual terms

Employees are obliged to disclose their own wrongdoing only if they owe a fiduciary duty to their employer, or if an obligation arises under their contract of employment.
In the absence of clear wording in the employment contract, it is probably unfair to dismiss an employee for failing to report his or her own misdeeds.
In The Basildon Academies v Amadi, the part-time employee took up a second job in breach of his employment contract. He was arrested following allegations of assault at the second job. His dismissal for failing to disclose these matters was unfair.
The employer could not show a contractual duty to report his alleged wrongdoing, and dismissal purely for taking up a second job was found to be too harsh.
This decision illustrates the danger of seeking to rely on implied terms. While it is possible to include an express contractual term that requires the disclosure of wrongdoing, this is more commonly seen in employment contracts for senior employees.

4. Dismissing for a reason not put to the employee at the outset

Employers must not be tempted to add further matters part of the way through the disciplinary process, unless a full procedure is followed for each allegation.
Alternatively, the employer could state clearly in the outcome letter that the additional allegations did not influence the decision to dismiss.
In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd, the dismissal of a Christian employee who expressed views about a colleague’s homosexuality was found to be both unfair and discriminatory.
The dismissal was unfair because the employee was not given the detail of the allegations in advance of the disciplinary hearing.
Further, the employer reached conclusions and views about the employee based on allegations that were not put to her. The tribunal considered that these views were stereotypical assumptions based on the employee’s religious beliefs. Relying on these assumptions without investigation was enough to infer discrimination.

5. Over-reliance on earlier warnings

Previous warnings can be a minefield for employers. Other than in cases of gross misconduct, dismissal is likely to be unfair unless there is a live final written warning.
While the case law on this point is not clear cut, relying on a first written warning to tip the balance in favour of dismissal (rather than issuing a final written warning) can be risky.
On the other hand, where there is a live final written warning in place, an employer is generally able to rely on this as meaning that any further acts of misconduct will justify dismissal (although see pitfall 6).
The Court of Appeal has held that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, there was at least some basis for imposing it and the warning was not manifestly inappropriate to have issued it.
Relying on an expired warning is extremely dangerous. In Bevan Ashford v Malin, a dismissal was found to be unfair where a warning was relied on that had expired one day before the second misconduct occurred.
Further, cases suggest that while expired warnings do not need to be discounted entirely, they cannot be used to tip the balance in favour of dismissal if the current misconduct is not sufficiently serious on its own.

6. Dismissing without considering other sanctions

Disciplinary procedures: sanctions

Decide on an appropriate disciplinary penalty
Do not assume that a finding of gross misconduct automatically justifies summary dismissal.
A tribunal will expect to see evidence that the decision-maker has considered if this is the appropriate penalty in each case.
It is important to consider all the circumstances, including the penalty that has been applied in similar cases, the employee’s length of service and disciplinary record. Any mitigating circumstances should also be taken into account.
These might include the employee’s remorse for his actions as well as any personal circumstances that may be relevant.
For example, in the recent case of Burdett v Aviva Employment Services Ltd, a claimant who suffered from schizophrenia had assaulted colleagues.
The EAT found that it was an error of law for the tribunal to accept that dismissal was automatically within the range of reasonable responses without considering mitigation.

7. Muddling investigatory and disciplinary meetings

If an employee owns up to misconduct during an investigatory meeting, you may be tempted to move straight to a disciplinary sanction. This should be avoided.
There may still be issues that need to be investigated; for example, if the employee alleges that the conduct in question is widespread or condoned by their manager.
Further, the procedural requirements that apply to a disciplinary meeting will not have been followed, meaning that any dismissal is also likely to breach the Acas code of practice on disciplinary and grievance procedures.
Keep a record of the employee’s admission and, once the investigation is complete, convene a separate disciplinary hearing. As usual, the employee should be given time to prepare for the disciplinary hearing and a chance to make representations.
There may be mitigating factors to take into account, and the tribunal will still expect the employer to have acted reasonably and to have considered these.

8. Dismissing without any process during the probationary period

Given that employees who are still under probation have short notice periods and are unable to claim ordinary unfair dismissal, some employers may choose to dismiss without following any procedure during this time.
However, it is important to remember that there is no service requirement for claims of automatically unfair dismissal; for example, dismissal for whistleblowing or for a health and safety reason.
All workers and job applicants are also protected under discrimination law regardless of length of service. Employers should therefore consider if any such issues might arise before moving straight to dismissal.

9. Increasing sanction to dismissal on appeal

Employers sometimes consider increasing a final written warning to dismissal as part of the appeal process.
This might be because the appeal manager takes a different view as to the severity of the misconduct, or because further information comes to light.
Increasing the penalty in this way can be risky. It is important to ensure that such a step is permissible under the employer’s own disciplinary policy.
Employers should bear in mind that such a step is contrary to the Acas code, which expressly states that appeal should not result in an increased sanction (as this may deter individuals from appealing).
If the penalty is increased, it is advisable to offer a second appeal against the new sanction.
In McMillan v Airedale NHS Foundation Trust, the employer sought to increase a final written warning to dismissal on appeal. Its policy did not expressly allow disciplinary sanctions to be increased on appeal. As the disciplinary policy was contractual, the employee was granted an injunction to prevent dismissal.

10. Choosing an inappropriate decision-maker

The Acas code provides that, where possible, different people should conduct the investigation and the hearing and then a further person for any appeal.
The appeal should ideally be heard by someone senior to the original decision-maker and from a different reporting line. This can be a particular problem for small employers, where finding separate decision-makers for the initial hearing and appeal stage can be tricky.
Thankfully, this is an area where case law does allow employers some leniency.
For example, in Adeshina v St George’s University Hospitals NHS Foundation Trust, the EAT found that specific circumstances must be considered when assessing if the appeal decision-maker is inappropriate.
In that case, there was an appeal panel, so the fact that one member was junior to the original decision maker was not a fatal flaw.

And finally, don’t forget…

With so many potential pitfalls, employers may wonder how a dismissal is ever fair. There are, however, two things to bear in mind.
First, while procedure is important, tribunals retain a degree of pragmatism. Employers do not need to be perfect. As the Adeshina case demonstrates, what they must be is reasonable and above all fair.
Second, while a procedural flaw may result in a technical finding of unfair dismissal, it is still open to the employment tribunal to reduce the compensation awarded, either to reflect the employee’s culpability for his or her own dismissal (contributory fault) or because the procedural errors made no difference to the overall outcome (a Polkey reduction).
That said, it is better to avoid these pitfalls, if only to prevent the waste of time and cost of an employment tribunal.
130

Katherine Pope

About Katherine Pope

Katherine Pope is a senior associate at Berwin Leighton Paisner.
 
As always mt grateful thanks to those nice people at PERSONNEL TODAY MAGAZINE for use of their material...........

Five ways why companies lose at tribunal

There is often much more to whether companies win or lose employment cases than the pure legal merits of the case. Natasha Adom offers some hints and tips to increase the chances of winning. 


1. They are not likeable

When a legal case could be successfully argued both ways (which is often the case in claims that go to a full hearing) judges will naturally side with who they believe is the “good guy”. So what can you do to improve your likeability factor?
Firstly, do not try to argue the unarguable. If there is something that paints you in a bad light but is not legally important in your case (for example, dismissing an employee just before Christmas or in an insensitive manner), it is generally best to admit early on that this could have been handled in a better way.
Likewise, while it might be frustrating, always try to be the reasonable party in your written communications, rather than getting drawn into unnecessary arguments.

2. They lose or destroy the evidence

You are less likely to win if you lose, destroy or fail to preserve relevant evidence.
Not only could you lose vital evidence which could have helped you win the case, but if a judge thinks you have destroyed or lost relevant documents they will be less likely to believe you and will be more likely to give the other side the benefit of the doubt.
In particular, beware of losing evidence by mistake.
Where you have an employee under suspicion, by just opening files on their laptop or computer you could lose information about how the device was used which might have helped your case (this could be information about which documents had been recently accessed on the device).
Consider whether or not you need to get the device “imaged” (this is where a forensic IT company takes a snapshot of the device before it is accessed by anyone else). This is particularly relevant if you might later be considering an injunction application or litigation.
Likewise, be wary of accidental document destruction.
Once you know of a claim you must not destroy potentially relevant documents. Any automatic document destruction process, where emails or documents are automatically destroyed after a certain period of time, must be suspended.
Also keep your eyes out for anyone trying to destroy evidence.
Experts can retrieve a significant number of files from a hard drive even where attempts have been made to destroy them: if the court thinks you have tried to destroy evidence, this will seriously damage your credibility and chances of winning.

3. They do not have the right documents in place at the right time

You should review the key contemporaneous documents before you finalise any court documents.
Judges attach great weight to contemporaneous documents. If it later transpires that these contradict what you have said this will damage your credibility.
As part of the court process you will need to locate and send the other side all relevant documents, (referred to as “disclosure”).
If a court believes you have not done this properly, it may think you have something to hide. It can also order you to disclose specific documents and make you pay any costs the other side has wasted because you did not do this properly the first time.

4. They encounter problems with witnesses

Even the strongest case in the world can unravel on the witness stand. Witnesses can be badly prepared, suffer from stage fright or verbal diarrhoea, so that their answers stray off the point undermining your case.
Therefore, it is crucial to ensure witnesses are properly prepared to give evidence. This includes ensuring that they know the documents, are clear on their role when giving evidence and are familiar with the court process.
It will also help them come across as being helpful, credible and competent when giving evidence.
Witness training (including a mock cross-examination) is increasingly common to ensure witnesses are properly prepared.

5. They are indifferent

Sometimes, those involved may not care about the claim: perhaps due to lack of time or feeling that the case won’t actually go ahead.
However, it is crucial that they understand how important it is to invest time early on in recalling the relevant details and locating documents.
This will ensure you present a consistent account from the defence, through to disclosure, witness statements and finally at trial.
Indifference could lead to inconsistencies and can ultimately affect whether you win or lose.

Be prepared

Careful and thoughtful planning and preparation can mean the difference between winning and losing. While it is difficult to overcome the fundamental legal merits of a claim, a strong case can unravel without proper preparation and a weaker case can be made significantly stronger with it.
Natasha Adom49
       Natasha Adom is a senior associate at GQ Employment Law.

My thanks as always to PERSONNEL TODAY magazine for providing good copy,  see them at

Wednesday, 3 February 2016

"Gay Cake Case" postponed

This week, the Northern Ireland Court of Appeal was expected to hear the high-profile case of a bakery accused of discriminating against a customer when it refused to make a cake with a slogan supporting same-sex marriage. However, the case was adjourned and rescheduled for 9 May 2016. Stephen Simpson rounds up five more examples of cases in which individuals objected to providing a service to a gay person on the basis of religious beliefs. 

In its judgment of 19 May 2015, the Northern Ireland county court in Lee v Ashers Baking Co Ltd and others accepted that the bakery committed sexual orientation discrimination when it refused to fulfil the order for the cake.
The bakery appealed against the county court decision, with the appeal expected to be heard on 3 February 2016. However, the case was adjourned on 3 February, and has been rescheduled for 9 May 2016.
The “gay cake case” is just the latest in a line of cases examining the clash between the right to hold religious beliefs and protection against sexual orientation discrimination.
A number of the leading cases in this controversial area are employment-related. The trend has been for courts and tribunals to find that employers are entitled to take steps to ensure that services are delivered on an equal opportunities basis, even if these steps conflict with an employee’s religious beliefs.

When employees’ religious beliefs clash with gay customers’ rights: five key cases

Christian registrar disciplined over civil partnerships refusal

Ladele v London Borough of Islington (Court of Appeal)
This ground-breaking case arose following the introduction of civil partnerships in 2005.
Ms Ladele was a registrar for the London Borough of Islington, which required all its registrars to add the carrying out of civil partnership ceremonies to their duties. However, Ms Ladele was unable to reconcile her religious beliefs with the new duty and refused to carry out these ceremonies.
The council instigated disciplinary proceedings threatening her with dismissal for a failure to comply with its “dignity for all” policy.
The Court of Appeal found that the employer’s treatment of Ms Ladele did not amount to direct religious discrimination. It also upheld the decision that the council’s policy was justified and the employer had not indirectly discriminated against her.
Ms Ladele subsequently took her case to the European Court of Human Rights (ECHR) in Eweida and others v United Kingdom. The ECHR found that there was no violation of Ms Ladele’s human rights. Read full case report…

Christian counsellor dismissed over same-sex couple beliefs

Equality Commission for Northern Ireland statement on county court decision

“The Equality Commission for Northern Ireland welcomes the judgment given in Lee v Ashers Baking Co Ltd.
This case raised issues of public importance regarding the extent to which suppliers of goods and services can refuse service on grounds of sexual orientation, religious belief and political opinion.
The court’s decision confirms the legal responsibilities on all service providers not to discriminate against their customers on these grounds.”
McFarlane v Relate Avon Ltd (Court of Appeal)
The Ladele case was followed soon after by a claim against a counselling service brought by a Christian counsellor.
Mr Mcfarlane was trained to be a psychosexual therapist and his role was extended to giving advice on couples’ sexual problems.
When he refused to give advice to same-sex couples because of his religious beliefs, his colleagues complained and he was suspended. He was later dismissed for failing to uphold the employer’s equal opportunities policy.
Mr Mcfarlane’s claim was rejected by the Employment Appeal Tribunal (EAT). He was refused permission to appeal by the Court of Appeal, which confirmed Ladele as the leading case on the clash between the right to hold religious beliefs and protection against sexual orientation discrimination.
Mr Mcfarlane subsequently took his case to the European Court of Human Rights (ECHR) in Eweida and others v United Kingdom. The ECHR found that there was no violation of Mr Mcfarlane’s human rights. Read full case report…

Christian B&B owners’ refusal of double-bedded room for civil partners

Bull and another v Hall and another (Supreme Court)
This well-publicised goods and services case, in which a Christian couple refused to let a double room in their hotel to male civil partners, went all the way to the Supreme Court.
The Supreme Court found that the owners of the bed and breakfast, whose religious beliefs include that sexual relations outside heterosexual marriage are sinful, could not justify their refusal to give civil partners a room with a double bed.
The couple’s claim under the Equality Act 2010 of sexual orientation discrimination in the provision of goods and services was upheld.
The parties in Lee v Ashers Baking Co Ltd and others cited this important discrimination case on the conflict between sexual orientation laws and the right to manifest religious beliefs. Read full case report…

B&B’s refusal to accommodate gay couple

Black and another v Wilkinson (Court of Appeal)
In a case with virtually identical facts to the Bull case, the Court of Appeal upheld a county court decision that a B&B owner’s refusal to provide accommodation to a gay couple was discriminatory.
A homosexual couple were refused accommodation at a B&B. The B&B owner made it clear that the main reason for her refusal was that she did not like the idea of two men sharing a bed.
The B&B owner maintained that she preferred to let her rooms – which were part of her family home – only to married heterosexual couples, in accordance with her religious beliefs. She also refused to accommodate heterosexual couples who were obviously unmarried.
The Court of Appeal confirmed the county court’s judgment that the gay couple had been discriminated against. The B&B’s policy meant that gay couples would never be eligible to stay at the guest house. Read full case report…

Family judge’s refusal to consider same-sex couple adoption placements

McClintock v Department of Constitutional Affairs (EAT)
Mr McClintock, a Justice of the Peace and member of the Family Panel, was required to decide whether children should be placed in care, fostered or adopted.
He objected to the possibility that he might be required to place a child with a same-sex couple and asked to be excused from hearing cases that might raise this issue.
The reason he gave was that he considered there was insufficient evidence that such a placement was in a child’s best interests and he felt that “to send a child to a same-sex household is to make him/her the subject of an experiment in social science”.
When the employer refused to agree to Mr McClintock’s request, he resigned from the Family Panel.
His claim for religious discrimination was unsuccessful because his views did not fall into the definition of a belief. They were simply an opinion. Read full case report…

This article was originally published on 19 May 2015. It was updated on 3 February 2016.
26       My Thanks to the excellent  Personnel Today Magazine for the source material,   always good value.