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| LAW & CASE LAW Feb 2013: HEALTH SECRETARY URGES NHS 'NOT' TO ENTER INTO SETTLEMENT AGREEMENTS. Health Secretary Jeremy Hunt urges NHS Trusts not to enter into Compromise Agreements with employees in order to stop staff raising concerns over patient care. See full article; http://www.bbc.co.uk/news/health-21483103 We have grave concerns about this on two counts. a) Has Jeremy Hunt considered the Government’s missive to urge Employers to enter into ‘Settlement Agreements’ (formerly known as Compromise Agreements), in order to help keep Employment Tribunal statistics to a minimum? b) We fear The Health Secretary’s intentions may, in fact, have an opposite impact on patient care. Employees raising Grievances in the NHS often highlight (or touch on), patient care issues. So, if Employees believe, rightly or wrongly, that raising patient care issues in a formal complaint will jeopardise the likelihood of a financial settlement – will they hold back on those important ‘risk’ issues? We think some might ! It would be far better, and far more ‘open and transparent’ if NHS Settlement Agreement cases were properly audited and risk assessed as part of a ‘wash up’ to ensure management errors, in every context, were properly addressed. Surely? Email your views to admin@nationalbullyinghelpline.co.uk THE MANCHESTER COLLEGE – TUPE CASE : It is quite rare but here is proof that a Judge will occasionally make an order for reinstatement in TUPE cases. It was decided that there should be re-engagement by way of recognising the breach of TUPE that has occurred here. For the full case see here; http://www.bailii.org/uk/cases/UKEAT/2012/0642_11_0907.html ASDA BULLYING CASE : A stuttering Asda worker who claims he was sacked over his speech impediment launched a campaign of harassment against a colleague an employment tribunal heard (12 September 2012). For the full story click here; http://www.dailymail.co.uk/news/article-2202140/Asda-Worker-Adnan-Malik-claims-sacked-speech-impediment-bullied-colleague-confrontations.html?ito=feeds-newsxml ROYAL MAIL RACISM : In August 2012 a bungled racism case cost Royal Mail big tribunal payout. Employer investigation into complaint ‘shambolic,’ says EHRC . A Royal Mail employee who blew the whistle on racism at his workplace but was then sacked is believed to have won £100,000 compensation in an employment tribunal. Abdul Musa, a former worker at a RM depot in Blackburn, reported racist behaviour at the depot to managers, which resulted in one worker being sacked and others disciplined. However, following his complaint, Musa was victimised by remaining colleagues as managers failed to protect or support him, the tribunal heard. He was then sacked in 2007 and claimed both race discrimination and unfair dismissal. The tribunal found failings in the employer’s internal investigation, which it said had not examined complaints that union representatives from the Communication Workers Union had backed an unofficial campaign to have Musa sacked by fabricating evidence. The tribunal judgement said RM’s managers had viewed Musa as “a problem” in terms of the negative reaction of other workers, which could only be solved by dismissing him. The Equality and Human Rights Commission (EHRC), which funded Musa’s legal representation, called RM’s internal inquiry into the complaint “shambolic”. John Wadham, general counsel for the EHRC, said: “The Equality Act protects people from being victimised for making complaints about any form of discrimination in the workplace. It also says employers have a responsibility to take complaints seriously and to put a stop to discrimination". “The fact that his colleagues were acting unlawfully was not enough to stop them from victimising Mr Musa. People facing discrimination also need an advocate, such as the EHRC, to make sure that the law is obeyed.” A spokeswoman for the union said there were no charges against the CWU or its representatives in the case. “We have a long-standing record of successfully representing our members in cases of this nature and want to see racism stamped out in all workplaces,” she added. DISCRIMINATION DUE TO PARTNER’S DISABILITY: Aug 2012. As this case demonstrates, it is unlawful for an employer to discriminate against an employee by treating him or her less favourably than others because of someone else’s disability. http://www.xperthr.co.uk/article/114101/employee-discriminated-against-because-of-his-wifes-disability.aspx DEARNE CARRFIELD PRIMARY SCHOOL V ANNA YERRAKALVA : In April 2012 a Teacher who lied about an accident at work and took six years off sick on full pay has been lambasted by an employment judge. The Judge said Anna Yerrakalva told a ‘series of lies’ that left her credibility in tatters. An investigation found her injury claim about being pinned down in the classroom was made up. The widow, 58, then won her unfair dismissal and victimisation claim – but was denied compensation. This is an appalling example of poor management. What happened to the School’s absence management policy? Anna Yerrakalva, who had brought an unfair dismissal claim in 2010, won the case on a technicality in April 2012 – but was told she would receive no compensation because of her lies. The case has cost taxpayers around £300,000. CENTRAL MANCHESTER UNIVERSITY NHS TRUST; EX-EMPLOYEE AWARDED £1M COMPENSATION : A former NHS worker was recently awarded £933,115 in compensation after an employment tribunal found that he had been subject to racial discrimination and unfair dismissal. Elliot Browne was a divisional director at Central Manchester University NHS Foundation Trust until he was dismissed in 2008. Browne told an employment tribunal that he had been the victim of “discriminatory treatment” in the final year of his employment at the trust and had been unfairly dismissed. The tribunal found that Browne had suffered “systematic discrimination” and “an intimidating environment” in his role, and that after Browne had raised a grievance the trust had failed to take it seriously or investigate it sufficiently. Browne claimed that the treatment severely affected him and left him close to a “mental breakdown.” Despite the trust’s claim that it believed strongly that discrimination was not a factor in the case. The tribunal awarded Browne £933,115 for unfair dismissal, aggravated damages and loss of earnings and pension. Unite, which represented Browne in the tribunal, called for the trust to “tackle its culture of institutionalised racism“. The expenditure of almost £1 million of taxpayers’ money could have been avoided if this employer had just followed its own policies and procedures – experts say. DAWSON V CHIEF CONSTABLE OF NORTHCUMBRIA POLICE : Collusion and Collective Bullying: Under The Protection from Harassment Act 1997, in light of this case (Case Ref: 209 EWHC 907 QB), employers are vicariously liable for harassment caused by the acts of two or more employees, provided the conduct is linked. Employers. If you are aware of allegations of bullying within a team, or department, involving more than two employees, you need to familiarise yourself with this case. BT LOSE SEX DISCRIMINATION CASE. £290,000 : September 2011 : A telesales worker who was sexually harassed by her manager has won a £290,000 payout from British Telecom – the highest employment tribunal award in the past year. Petrina Taylor, 36, complained about her ordeal at the hands of ‘dangerous’ sex pest boss Craig Alcock – but BT’s response was ‘woeful’, a tribunal ruled. Miss Taylor had to endure boss Mr Alcock ‘thrusting’ himself at her and female colleagues and was warned by him that if she failed to land a deal he would perform a sex act over her. When she asked for time off to see her doctor over her contraception, he replied: ‘What are you telling me for? I’m not shoving it up you.’ Mr Alcock branded Miss Taylor’s team ‘sheep shaggers’ and ‘inbreds’ and described pregnant women as a ‘nuisance’. Up to ten other women have sued BT recently for sexual harassment that they allegedly suffered at the hands of a number of different men while working for its ‘Customer Street’ telesales operation. The firm has settled several cases out of court. What is going on? These cases including; legal costs, disruption to the business, management time, settlement fee’s, re-recruitment costs, management training etc etc., must have cost BT in excess of £2M. EMPLOYMENT LAW CHANGES: 2012 SWEARING. February 2013. Heafield v Times Newspaper Ltd [2013] UKEAT 1305_12_1701 - 17/01/13 The appellant, a sub-editor who was a Roman Catholic, was offended by an editor referring to 'the fuck*** Pope' when chasing a delayed article and brought a claim for harassment on the grounds of religious belief. The Tribunal held that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003. We are not sure we agree with this. If you are offended by swearing in the workplace, call us. LAW ON UNFAIR DISMISSAL. From 6 April 2012, the qualifying period to claim unfair dismissal is extended from one year to two years. This applies only to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year. See below for further information. Other important changes include; RESOLVING EMPLOYMENT DISPUTES (including 2012 updates). We are experts in this area. Call us on 0845 22 55 787for an initial FREE consultation. To simplify workplace disputes, a number of proposals have been made with the objective of reducing the number of claims going to employment tribunal (and to speed them up when then get there). Here is an update; Mediation: Two regional mediation networks for small and medium enterprises (SMEs) have been set up, in Cambridge and Manchester, as pilot schemes. The Department for Business, Innovation and Skills is funding training for employees from 24 SMEs in each area, to enable them to provide mediation to organisations in their network, to help resolve employment disputes at an early stage in SMEs. The aim is to preserve the employment relationship wherever possible. More details will follow when results are published. Pre-Claim Conciliation: The Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, includes a requirement for details of all employment claims to be submitted initially to ACAS, before they can be lodged with the tribunal. Claimants will be offered pre-claim conciliation, but there will be no obligation on either party to take up the offer; if the offer is refused or conciliation is unsuccessful the claim can proceed to the tribunal. Limitation periods will be extended to allow time for ACAS conciliation. This is different from the original proposal, which would have required all claims to go through pre-claim conciliation with ACAS before they could go to tribunal. The pre-claim conciliation provision is in ss.7-9 of the bill. Rapid Resolution: S.10 of the Enterprise and Regulatory Reform Bill allows for regulations to be made permitting appointed legal officers to make decisions on behalf of the employment tribunal, if all parties to the dispute agree in writing, in specified low value, straightforward claims such as holiday pay. The intention is to be quicker and cheaper, for example by allowing for non-judicial determination based only on papers, without an oral hearing. No-fault dismissals for micro-employers: This legislation is unlikely to actually become law but following the government's "red tape challenge" on employment-related regulations in October 2011, the Department for Business, Innovation and Skills carried out from 15 March to 8 June 2012 a call for evidence on the implications of compensated no-fault dismissals for micro-employers with fewer than 10 employees. Under this proposal, a micro-employer would be able to dismiss an employee even if there was no fair reason for doing so and without going through a disciplinary and dismissal procedure, on payment of a set amount of compensation. COMPROMISE AGREEMENTS Tel: 01793 338888 for urgent help. Compromise Agreements: Under the Equality Act 2010 it is clear that compromise agreements can be safely used to settle discrimination claims. Vince Cable, secretary of state for business, innovation and skills, said on 11 June 2012 that the compensated no-fault dismissal proposal would not be taken forward. Instead, the emphasis will be on settlement agreements, which can be used by all employers but which cannot be forced on the employee. WITHOUT PREJUDICE Protected conversations: The government consulted from January to April 2011 on proposals to simplify resolution of workplace disputes and reduce the number of claims that go to tribunal, and announced its response on 23 November 2011. The consultation documents and response, which included proposals for protected conversations and compromise/settlement agreements, are on the BIS website. Further, the provisions can be found in the; Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012. Note: Protected conversations are now referred to as confidential negotiations before termination of employment. The provision would allow employers to discuss issues which could lead to dismissal, such as retirement or poor performance, in an open manner with staff, and offer a no-fault termination package through a settlement agreement, without these discussions and the settlement offer being used in any subsequent unfair dismissal tribunal claims. Unlike "without prejudice" discussions which also cannot be disclosed in tribunal or court proceedings, the confidential negotiations provision can be used even if there is no existing dispute. As proposed, the provision for confidential negotiations would apply only to unfair dismissal claims. For claims other than unfair dismissal — such as breach of contract, discrimination, or dismissals that are automatically unfair such as whistle-blowing — negotiations will continue to be able to be taken into account unless they are explicitly without prejudice. As worded, the proposed legislation seems to provide that if an unfair dismissal claim is brought at the same time as another claim, the negotiations will be able to be taken into account in the unfair dismissal claim as well. Negotiations will also be able to be taken into account in relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour. "Improper behaviour" is not defined, but would presumably include an employer seeking to coerce an employee into accepting a settlement agreement. Some say that, ‘in order to decide whether something improper was said or done’ the tribunal would have to hear about the negotiations anyway! The Enterprise and Regulatory Reform Bill can be accessed on the Parliament website. The confidentiality provision is clause 12. Settlement agreements: Under clause 17 in the Enterprise and Regulatory Reform Bill compromise agreements will be renamed settlement agreements and the process will be made more straightforward for both employers and employees. A compromise/settlement agreement is a legally defined agreement under which an employee whose working relationship with the employer has become irretrievable agrees, in return for a negotiated financial sum, not to bring a tribunal claim against the employer. See our section on Compromise
Agreements. Importantly; There is a requirement for the employee to receive independent advice from a solicitor, trade union official or qualified advice worker before entering into a compromise agreement. If the employee rejects a settlement agreement and has the necessary period of qualifying service, the employer will have to have a fair reason for dismissal and go through a fair dismissal procedure in order to reduce the risk of an unfair dismissal claim, and regardless of length of service will need to follow any contractual disciplinary and dismissal procedures to reduce the risk of a wrongful dismissal claim. Under the Equality Act 2010 it is clear that compromise agreements can be safely used to settle discrimination claims. WHISTLE-BLOWING Whistle-blowing: Under ss.43A-43L of the Employment Rights Act 1996, inserted by the Public Interest Disclosure Act 1998 (PIDA), a worker who reveals information about an employer that would normally be confidential (whistle-blowing) is protected against victimisation or dismissal, provided the worker reasonably believes the disclosure tends to show one or more of six categories, and it is made through a protected route. The categories are criminal offence, failure to comply with any legal obligation, miscarriage of justice, danger to an individual's health or safety, damage to the environment, or deliberate concealment of information tending to show any of these. Protected routes include the employer, a legal advisor, or prescribed bodies such the Charity Commission, Health & Safety Executive, HMRC, Environment Agency etc; there are other protected routes. Disclosure to a protected body must be made in good faith. Disclosure of information that the worker does not reasonably believe shows or tends to show one of the six categories or is not made through a protected route is not protected. A clause included in the Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, would change the definition of whistle-blowing so that the worker not only has to reasonably believe the disclosed information tends to show one or more of the six categories, but also reasonably believes it is made in the public interest. Unlike other employment-related provisions in the bill, the government did not carry out any consultation on this. A change in the legislation is necessary, because the employment appeal tribunal found in Parkins v Sodexho that an employer's breach of an individual's contract of employment is a failure to comply with a legal obligation, and therefore disclosure of a contractual breach could be protected. There have been concerns that since this 2001 decision, PIDA is being abused in particular by City bankers using it to claim that disclosures about their bonus payments are protected disclosures. STATUTORY MATERNITY Statutory maternity pay (SMP) is 90% of the woman's weekly earnings for the first six weeks of maternity leave. For the remaining 33 weeks of the 39-week SMP period, SMP is a flat weekly rate or 90% of average weekly earnings, whichever is less. For complete pay weeks starting on or after 1 April 2012, the flat rate is £135.45 (increased from £128.73). For complete pay weeks starting on or after 1 April 2012 statutory paternity pay (SPP) and statutory adoption pay (SAP) are £135.45 per week (increased from £128.73) , or 90% of the employee's average weekly earnings, whichever is less. The earnings threshold for eligibility for SMP, SPP and SAP is £107 per week (increased from £102). An employer who paid, or was liable to pay, gross class 1 national insurance contributions of £45,000 or less in the individual employee's qualifying tax year can recover 100% of the SMP, SPP or SAP, plus 3% compensation. Employers who do not qualify for this small employer relief can recover 92%. Proposals to increase SMP and SAP from 39 to 52 weeks have been put on hold indefinitely, but additional paternity leave and pay were introduced where the child is due or is matched for adoption on or after 3 April 2011. PATERNITY The Additional Paternity Leave Regulations 2010 gave a new right to additional paternity leave in relation to babies expected on or after 3 April 2011 or children placed for adoption on or after that date. TIME OFF FOR DEPENDENTS A case in April 2011, Clarke v Credit Resource Solutions, illustrates the importance of understanding the statutory right of all employees, regardless of length of service, to take reasonable time off to deal with unexpected or sudden situations relating to dependants, or to make necessary longer-term arrangements for dealing with the situation. There is no right to pay for the time off unless the contract says it is paid, but it is unlawful to subject an employee to a detriment for exercising their right. Employers need to have a clear policy to ensure managers and staff know about this and understand it. TRIBUNAL AWARDS £ Tribunal Awards: From 1 February 2012 the maximum compensatory award for unfair dismissal is increased from £68,400 to £72,300. The compensatory award is intended to compensate employees for loss of earnings. The maximum basic award is increased from £12,000 to £12,900. The maximum "weekly pay" for calculating certain statutory entitlements, including statutory redundancy pay for redundancies taking effect on or after 1 February 2012, is increased from £400 to £430. The limit on guarantee payments when an employee is not provided with work is increased from £22.20 to £23.50. The minimum basic award for unfair dismissal on grounds of health and safety, trade union involvement, serving as an employee representative or occupational pension scheme trustee, or other reasons that are automatically unfair is increased to £5,300, and the minimum compensation for a worker excluded or expelled from a trade union goes up from £7,600 to £8,100. MINIMUM WAGE From 1 October 2012 the national minimum wage for workers aged 21 and over will go up 11p, from £6.08 to £6.19 per hour. It will remain £4.98 for 18-20 year olds and £3.68 for 16 and 17 year olds who are above school leaving age and are not apprentices. The government's justification for freezing the youth rates is that in the current economic climate, an increase would make it harder for them to get a job in the long run. The apprentice minimum wage of £2.60 per hour will go up to £2.65 for apprentices aged under 19, or over 19 and in the first year of their apprenticeship. This applies to apprentices on traditional contracts of apprenticeship, and employed apprentices on government-supported level 2 and 3 schemes. The apprentice minimum wage came into effect on 1 October 2010, replacing the £95 per week minimum rate of pay for apprentices. The accommodation offset rate (the amount that can be taken into account for living accommodation) will be increased from £4.73 per day (£33.11 per week) to £4.82 per day (£33.74 per week). Since 1 October 2011 the accommodation offset has not applied to students in full-time higher education and further education who are employed by the institution at which they are students. Information may be found via the Governments website (The Department for Business, Innovation and Skills), via Business Link and/or via HM Revenue & Customs. RIGHTS FOR TEMPORARY WORKERS: The rights of temporary workers: From 1 October 2011, when the Agency Workers Regulations 2010 came into effect, agency workers (often referred to as temps) in England, Wales and Scotland, who are placed on assignment by a temporary work agency (TWA), are entitled to the same basic employment rights as a comparable employee or worker (the comparator) directly employed by the receiving organisation (the hirer). FLEXIBLE WORKING: The Right to request flexible working: The government proposes that the right to request flexible working be extended to all employees who have been with their employer for 26 consecutive weeks, not just those who are parents or carers as at present. The current statutory procedure for flexible working requests would be replaced by a statutory code of practice for employers and a duty to consider requests reasonably, but there are no plans to alter the current eight business reasons for an employer to turn down a request. At present employees can request flexible leave only once in a 12-month period. Under new proposals they would be able to make a further request within 12 months where the initial request was for a temporary arrangement. The government's response was expected in early 2012 but has been delayed. STATUTORY SICK: Statutory Sick Pay: For sickness absence on or after 6 April 2012, the earnings threshold is £107 per week (increased from £102) and the statutory sick pay rate is £85.85 per week (increased from £81.60). Employees earning less than £107 p.w. or not eligible for SSP for other reasons may be entitled to employment and support allowance. TRIBUNAL REFORM From 6 April 2012 a number of changes in employment tribunal procedure kicked in to reduce the complexity and perceived inefficiency of the system. For further details refer to the Employment Tribunals Act 1996 via the Parliament website. Judges: For example, from 6 April 2012 employment judges will hear unfair dismissal cases alone in the employment tribunal, unless the judge directs otherwise. Some concern has been expressed about Judges sitting alone for unfair dismissal cases in the ET. See EAT decision in McCafferty v Royal Mail. Deposit orders: The maximum amount for a deposit order is increased from £500 to £1,000. The employment judge or tribunal can order any party to pay a deposit as a condition of being allowed to proceed if it considers its case has no reasonable prospect of success. Costs cap: The maximum amount for a costs order, requiring the employer or employee to contribute to the other's costs, is increased from £10,000 to £20,000. The tribunal or employment judge has a duty to consider awarding costs where the case had no reasonable prospect of success or where one of the parties or its representative has acted vexatiously, abusively, disruptively or unreasonably, but can award them even if this is not the case. Practical Lawyer magazine suggests that tribunals are likely to move away from a general "no costs" presumption towards the county court system of "loser pays", which could make the consequences of losing more serious for both employers and employees. If a claimant persists with a claim after being ordered to pay a deposit at a pre-hearing review and then loses, the deposit may be awarded as costs to the other party. Witness statements: Witnesses' written statements will be "taken as read" and witnesses will no longer need to read them aloud, unless the tribunal or employment judge orders otherwise. Witness costs: The tribunal or employment judge has power to order the parties to a dispute to pay witnesses' expenses, and to require the party who loses the case to reimburse the successful party for any such witness costs they have already paid. See: The Employment Tribunals (Constitution and Rules of Procedure)(Amendment) Regulations 2012. Maximum awards: The method of calculating the basic award in unfair dismissal claims, and the maximum compensatory award, are both being changed. Discrimination compensation: The government has concerns about the high level of compensation awarded by employment tribunals in some discrimination cases, and whether this leads some workers to take weak, speculative or vexatious cases in the hope of a large award and/or leads employers to settle such cases before they reach the tribunal. In the BIS employment law review annual update in March 2012, the government said that because discrimination law derives from EU law, it would not be possible to put a cap on awards. However, information on median awards will be included in tribunal claim forms, so workers and employers realise that large awards are not the norm. Judges Discretion: ref financial penalties for employers. Under clause 14 of the Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, employment judges will have discretion to serve a penalty on employers who breach employment rights where there are "aggravating features". So as well as paying compensation to the employee, an employer could be required to pay a penalty (a fine) to the Exchequer of up to 50% of the tribunal award, subject to a lower limit of £100 and an upper limit of £5,000. The penalty will be reduced by 50% if it is paid within 21 days. QUALIFYING FOR UNFAIR DISMISSAL Qualifying Period to Claim Unfair Dismissal: From 6 April 2012, the qualifying period to claim unfair dismissal is extended from one year to two years. This applies only to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year. The right to request a written statement of reasons for dismissal is also extended from one year to two years for employees who start on or after 6 April 2012. Claims for unfair dismissal where there is no qualifying period, for example where the dismissal is for a reason based on unlawful discrimination, continue to be able to be made from day one. CONFLICT IN THE WORKPLACE DEALING WITH ISSUES: Whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. In summary:- • Employers and employees
should raise and deal with issues promptly and should not
unreasonably delay meetings, decisions or confirmation
of those decisions. The ACAS Code of Practice is cleaer. Employers are advised to have separate policies on Capability, Bullying and Harassment, Redundancy and should have 'a Collective Agreement Policy' for dealing with overlapping complaints. The key changes in the ACAS Code
are simply that : The employers in house policy should always be followed. The abolishment of The Employment Act started with The Michael Gibbons Report which recommended a complete repeal of the statutory dispute procedures. The Report proposed an alternative dispute resolution approach (at an early stage to nip contentious issues in the bud), to help bring Tribunal statistics down. Subsequently, it was agreed, we should to abolish The Employment Act 2002 and Dispute Resolution Reforms 2004 and encouraged greater use of helplines and mediators. During 2007 over 230,000 claims were made to the Employment Tribunal. The Government believes, after careful consideration of the issues, that tribunals should be permitted to adjust awards to reflect non-compliance with the statutory Code - this (it is believed) will "encourage the right behaviors and resolve disputes in the workplace" as recommended by Gibbons. MEDIATION: But, who pays for the mediation, Employee or Employer? ACAS have concerns and believe this needs to be explicitly clear in the legislation. Tribunals do not award costs - so if an employee pays will he/she recover the costs? If the employer pays, is the mediator 'impartial'. If there is an issue of trust this may become a barrier to mediation. At NBH we do not see this as a problem. For decades now independent mediators have managed to engage the parties at the outset. A good mediator will involve both parties at the point when the Terms of Reference are drawn up and it is 'at that point' that it should become clear whether mediation is viable or not. The parties need to be mutually agreeable to the approach if mediation stands a chance. If an employer 'begrudgingly' feels that the employee has behaved unreasonably so should pay - the employer should have managed the issues better! Conversely, if an employee feels that the mediators hands are tied if the employer pays; they can always offer to share the cost. It shows good-will. "It takes two hands to clap" afterall. If there is no trust - mediation is a non-starter. Last but by no means least - it is in the employers best interest to 'nip it in the bud'. However, if one of the parties is willing and the other is not, a well documented attempt at the process will form part of a good defence. DON'T BECOME A STATISTIC IN A NUTSHELL: There is an implied term in employment contracts that "the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers" Arnold J. in Wigan Borough Council v Davies 1979 ICR 411, quoted with approval by the House of Lords in Waters v Commissioner of Metropolitan Police 2000 ICR 1064, HL In the Waters case the House of Lords also quoted Spring v Guardian Assurance plc 1994 ICR 596 and Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200 as authority for the proposition that the Courts recognise a common law duty on an employer to take care of his employees, including a duty to prevent ill treatment or bullying, quite apart from statutory requirements. As always, the position in any particular case will depend on the facts and the House of Lords was careful to point out that "it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it". CYBER-BULLYING What is Cyber-bullying? "Cyber-bullying is any form of bullying behaviour that occurs through technology". Bullying does not discriminate, we are all potential targets. No one person is immune to Cyber-bullying either. Both individuals and organisations may be susceptible to Cyber-bullying Anonymous blogs which target an individual or an organisation is Cyber-bullying In most cases the perpetrator works alone, struggles to fit in with society and they have an axe to grind. They are bullies in the truest sense. We hear more and more tales about this unacceptable and inexcusable behaviour. If an individual writes a blog about your organisation, or harasses someone under the guise of a blog in an attempt to try to convince others that they are a victim of circumstance, they are probably delusional. For example, we recently heard of a case where an individual (an ex-NHS employee) wrote a blog about her former employer because she was found to be a bully through a formal 'internal' investigation process. She was subsequently disciplined and later dismissed. In an act of retaliatory treatment and revenge she wrote a blog that was totally misleading and inaccurate. We know of a second, complex, case where an employee was released under a Compromise Agreement following an investigation. The investigator raised concerns about the employee's conduct, stress and mental health at that time and recommended that the employer consider the C.A. route (as just one of many options to address matters). A third party subsequently wrote a blog about that case unaware of the full facts. In both cases cited here, some of the facts are similar, and both cases resulted in an inappropriate blog being drawn up. These are just two examples. A third case reported to our helpline involves a teenager who had her website highjacked by a blogger - and inappropriate images were placed on her site without her consent. Any form of Cyber-bullying is unacceptable conduct and should be reported to the Police immediately. Bloggers will, typically, convince themselves that they are a victim and that their blog is permissible under 'freedom of speech' and/or that they are some sort of champion of justice. These individuals, often, have no qualifications, a limited understanding of HR or employment law and they very quickly 'jump to conclusions' or make assumptions. They lack the knowledge and ability to deal with concerns in a professional manner and/or very often they have failed at seeking a remedy through legal channels. These individuals are, in no way, professional businessmen or women. A common occurrence with blogging is that authors of blogs will refuse to reveal their name and identity and/or write their blog under a pseudonym. They will also, typically, block the target of their blog from responding. Bloggers often portray only half a story or very distorted facts. In fact perpetrators of Cyber-bullying bring shame to no one but themselves. Bullies are often frustrated, sad, lonely, mentally unstable individuals and often lone-workers - incapable of separating fact from fiction. They are bullies in the truest sense and, we all know, bullies are cowards. If you or your company is targeted by a cyber-bully, do not reproach yourself. Ask yourself wither the perpetrator has an axe to grind. The answer is invariably yes. Cyber-bullying, if believed by a reasonable person to be an act of victimisation or harassment, may be regarded as a criminal offense under The Harassment Act. REDUNDANCY SELECTION In a case involving Rolls-Royce v Unite (2008 EWHC 2420 QB), the High Court ruled that Lifo (last in first out) used as the sole criterion for redundancy selection was unlawful age discrimination. This was because it favoured older workers as they were more likely to have longer service. LIFO on its own is not a proportionate means for selection. Have objectively measurable redundancy selection criteria Cost cutting may be legitimate as one of several selection criteria for redundancy Enhanced redundancy pay must mirror the statutory scheme
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CALLING SOLICITORS We work closely with specialist Employment Law and Family Law Solicitors. Would you like us to refer your case? There is no obligation on a Solicitor to take a case referred. Each case is assessed on its own merits. Any agreement you subsequently enter into with a Solicitor is confidential between yourself and that legal firm. We are obliged under regulations laid down by the Solicitors Regulation Authority to point out where there is a financial arrangement between the Solicitors and ourselves.
CASE LAW (See below) LEGISLATION (See below) NEWS 22 August 2009. Facebook bully jailed. The first person in Britain is jailed (3 months in a young offenders' institution) for bullying on a social network site. Daily Mail 22 Aug. Keeley Houghton, 18, said she would kill Emily Moore whom she had bullied for 4 years since they were at school together. The hearing took place at Worcester Magistrates. District Judge Bruce Morgan said; "Bullies are by their nature cowards, in school and society. On this day you did an act of gratuitous nastiness to satisfy your own twisted nature". Houghton was also given a restraining order banning her from contacting Emily in person (for five years). WHAT ABOUT THE BULLY? Have you been accused of being a bully? This can be extremely distressing and, often, the allegation is unwarranted. Remember, you have rights too - whatever your status in the organisation. We run a programme called; What to do if accused of being a Bully. Call 0845 22 55 787 and ask for details. |
CASE LAW COLLUSION : Dawson v Chief Constable of Northumbria Police. June 2009. Employers are vicariously liable under the Protection from Harassment Act 1997 for harassment caused by the acts of two or more employees, provided the conduct is linked. This case is of considerable significance across the Public Sector where, very often, husband's and wife's and couples are allowed to work together. Ensure your workplace 'Relationship Policy' is up to date. Royal Mail 2012: 03 August 2012 : Bungled racism case costs Royal Mail big tribunal payout. Employer investigation into complaint ‘shambolic,’ says EHRC. A Royal Mail employee who blew the whistle on racism at his workplace but was then sacked is believed to have won £100,000 compensation in an employment tribunal. Abdul Musa, a former worker at a RM depot in Blackburn, reported racist behaviour at the depot to managers, which resulted in one worker being sacked and others disciplined. However, following his complaint, Musa was victimised by remaining colleagues as managers failed to protect or support him, the tribunal heard. He was then sacked in 2007 and claimed both race discrimination and unfair dismissal. The tribunal found failings in the employer’s internal investigation, which it said had not examined complaints that union representatives from the Communication Workers Union had backed an unofficial campaign to have Musa sacked by fabricating evidence. The tribunal judgement said RM’s managers had viewed Musa as “a problem” in terms of the negative reaction of other workers, which could only be solved by dismissing him. The Equality and Human Rights Commission (EHRC), which funded Musa’s legal representation, called RM’s internal inquiry into the complaint “shambolic”. John Wadham, general counsel for the EHRC, said: “The Equality Act protects people from being victimised for making complaints about any form of discrimination in the workplace. It also says employers have a responsibility to take complaints seriously and to put a stop to discrimination. “The fact that his colleagues were acting unlawfully was not enough to stop them from victimising Mr Musa. People facing discrimination also need an advocate, such as the EHRC, to make sure that the law is obeyed.” A spokeswoman for the union said there were no charges against the CWU or its representatives in the case. “We have a long standing record of successfully representing our members in cases of this nature and want to see racism stamped out in all workplaces,” she added. Teachers and NHS Employees. You may have a right to be accompanied at a disciplinary meeting by an Employment Law Solicitor! Up to now, under the Employment Relations Act 1999s10., employee’s only have a right to be accompanied at a formal meeting by a trade union representative or a colleague. In a ground-breaking Case, a recent High Court ruled that an employer must now allow a worker to have legal representation at his/her disciplinary hearing, where the circumstances are so serious that a potential outcome might impact on the employee’s Human Rights. In a case involving “R v The Governors of ‘X’ School and ‘Y’ Council, a High Court ruled that, in the context of the Education Act 2002 s.142 this employment law rule was trumped by the Human Rights Act and that the employee had the right to legal representation at a disciplinary hearing. Specifically the High Court ruled that: "the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant's future working life ....... are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee". Kulkarni v Milton Keynes Hospital NHS Trust. August 2008. Note (in respect of the above ruling) the High Court came to the opposite conclusion on analogues, but not identical, facts. In the 2008 case a Doctor was accused of sexual impropriety with a patient - apparently the Doctor had placed a stethoscope under the patient's knickers without her permission. The High Court held that the Doctor was not allowed legal representation at a disciplinary hearing. The 2008 case was decided essentially on the grounds that the Doctor's rights under the Human Rights Act were adequately protected by his rights of appeal - grounds specifically rejected in the present case, albeit on different facts. Ali v Birmingham City Council. Jan 2009. Resignation must be withdrawn quickly. Ali handed in his resignation in the heat of the moment. He was given a 30 minute cooling off period after which he confirmed his with to resign. Four days later he tried to withdraw his resignation. It was refused. The issue was whether he had withdrawn his resignation before the employer could reasonably accept it! The EAT upheld the Tribunal's decision that it was a resignation and Ali's unfair dismissal claim failed. A delay of four days, even in special circumstances, is too long. Coleman v Attridge Law. Jan 2009. DDA case. The claimant in this case was not disabled but had a disabled son for whom she was the primary career. She claimed that her employer had directly discriminated against her in breach of the Disability Discrimination Act 1995. In July 2008 the European Court of Justice confirmed that the equal treatment framework directive, which underpins the DDA, prohibits associated discrimination and harassment. Even though the DDA wording does not expressly cover this, the act can be interpreted in line with the directive. The case is due to go to full hearing. Dickins v O2 October 2008: 'Stressed' workers should go home. O2 was sued for mental injury caused by excessive work stress. To establish that this damage was foreseeable, it was sufficient that Dickins had complained about stress, was regularly late for work and had warned her manager of her concerns. Although she was not signed off work, O2 was in breach of its duty of care. It should have sent the employee home pending and occupational health investigation. The employers failure to address Dickins' problems had contributed to her illness. Daily Mail 23/09/08 The Army : Lesbian Soldier's £400,000 demand over sex claim 'dwarfs compensation given to wounded war heroes'. Lance Bombardier Kerry Fletcher is looking for £400,000 compensation at a remedies hearing at the Leeds employment tribunal. She won a tribunal case against the MoD in January 2008, after she was pestered for sex by an unnamed sergeant (see Daily Telegraph 17/01/08. She is claiming compensation for stress and injury to feelings as well as loss of earnings after a tribunal ruled she had been subjected to a campaign of sexual harassment by a male sergeant. Daily Mail 23/09/08 Smyth v Halifax 'Jealous' Woman Boss' : Financial adviser Karen Smyth was one of the Halifax's most talented high flyers, earning £95,000pa plus bonuses. A woman was appointed her senior and criticized her approach with customers, gathered complaints and went to senior management. Miss Smyth suffered stress and resigned. She won a case for unfair dismissal against the Halifax and was awarded £59,030 after the bank admitted liability. 09/09/08 : Ghaffur v Metropolitan Police. Sir Ian Blair has said "For avoidance of doubt, the decision (to Suspend Tarique Ghaffur) has nothing to do with his actions in filing an ET (employment tribunal claim) or the fact that he has made allegations which are the subject of the ET claim. Rather, my decision results from the way in which he has chosen to conduct himself, for example by the manner in which statements were made in his press conference, and in conducting a media campaign, both personally and through advisers and organisation's supporting him". 06/09/08 : £600,000 Record Cash Award after 'Bin Laden Joke. Halima Aziz v Crown Prosecution Service. The CPS has been found guilty of race discrimination. A tribunal has awarded a record £600,000 as well as ordering that Ms Aziz be given an apology and reinstated. The CPS's actions were "astonishing". August 2008: Steak and Omelette Bar V Jane Price. Plymouth. Sex Harassment Tribunal : £53,958. A manager personally fined £5,256 (along with the Employer; totaling £54,000) in Sex Harassment Case. A Plymouth waitress, Jane Price, (and mum of one) won an unfair dismissal and Sex Harassment case at an employment tribunal in March. The manager of the Steak and Omelette Bar in Plymouth, Peter Tunney, had tried to kiss her and grabbed her breasts in 2006. After she complained, she was dismissed by text by the owner of the Bar, Alex Psaras. Mr Psaras is furious that he has lost his case and claims that the text message may very well have cost him his business. He said; “I sent her the most expensive text ever. This could kill me. It could ruin my whole business”. The Bar has been ordered to pay out £23,741 for the harassment and £30,216 for the 'discriminatory dismissal'. The manager who committed the offence was personally ordered to pay Ms Price a further £5,256 because he was considered to be 20% liable. This is a simple case, that the general public will be able to relate to, that makes a number of very important and valid points in respect of employment law and employer duty of care. 1. Employees have a statutory right to complain if they believe they are being treated unlawfully. A Grievance policy is there to confront issues - the grievance process should not be seen as confrontational. At The National Bullying Helpline we hear, every day, of cases where an employee feels too frightened to submit a grievance letter for fear of repercussion. An employer should not dissuade an employee from filing a complaint under any circumstances and an employer should certainly not dismiss an employee for complaining. The Steak and Omelette Bar in this case had a ‘Duty of Care’ to hear Jane’s complaint. 2. An Employer should not dismiss an employee instantly, under any circumstances. Only Alan Sugar has the right to say “You’re fired”. In this case, the Omelette Bar owner not only dismissed Jane, instantly, but he did so via a text message. Both the action itself and the method of the dismissal was totally inappropriate and unlawful. 3. The bully in this case, Peter Tunney, was ordered to pay £5,256 out of his own salary for his behaviour. This is not the first time a Court has fined a manager for his role in matters. The message is clear here. Any manager, supervisor, team leader or head of department may be held personally accountable for inappropriate conduct, if found guilty by a Court. 2003: Horkulak –v- Cantor Fitzgerald International. Damages were awarded in this case of £1M in salary and bonuses. The employee was under-performing but, sadly, instead of addressing his performance his manager decided to use bullying and belittling tactics. The High Court took the view that the manager's behavior destroyed the relationship of trust and confidence and the employee was regarded as having been Constructively Dismissed. The Judge did give consideration to the use of foul language – that was commonplace in this particular workplace. Even though it was considered `the norm' the Judge found it most unacceptable. So, any employers using `old style' aggressive management in the belief that it is excusable – take heed! This case was a double whammy for CFI. 2003: Beadles Group Ltd –v- Angelica Graham. £178,000. The Guardian called it Sexual Bullying. The Daily Mail called it Sex Discrimination. Lawyers refer to the case as Sexual Harassment and say the payout is believed to be one of the highest awards ever, reflecting its seriousness. Whatever you call it, it was gross negligence and irresponsibility on the part of the Employer, who has a Duty of Care for all employees – and that includes temporary workers and contractors too! Trainee Sales Executive, Ms Angelica Graham, was awarded £178,000 due to the conduct of her line manager, car salesman Ralph Marriott, during her first week at work. Marriott was ordered to pay £7K of the award personally. Quite right too. The Employer, Beadles Group Ltd., had no written policy on sex discrimination, harassment or equal opportunities and neither did it provide training, guidance or advice to employees on the seriousness of bullying and harassment. The Employer was therefore completely liable, as they had failed to take appropriate steps to protect their employees and prevent harassment from occurring in the workplace. TRAIN Do you manage staff? Does your employer have a training budget 'per head' or per department? When did you last have managerial training? If you manage people and you believe you need managerial training, put your request in writing to your employer. If you are an employer and you have concerns regarding the way your heads of department manage staff, address it as matter of priority. Do not underestimate the value of people management training. In Mr Psaras’s case, his ignorance is likely to cost him his 30 year old business. LEGISLATION SEX DISCRIMINATION, EMPLOYMENT EQUALITY (Sex Discrimination) REGS 2005 SI 2005/2467 : One of the most important aspects, which will impact on every day working lives, is the Employment Equality (Sex Discrimination) Regulations 2005. Under this legislation any form of harassment is unlawful. A woman can bring a claim IF, on the grounds of her sex, a male colleague engages in unwanted conduct that has the purpose or effect of violating her dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment. Also, if a female employee is subjected to unwanted, verbal, non-verbal or physical conduct, of a sexual nature, that violates her dignity at work - she can bring a claim against her employer. This law works in reverse also; men can bring a claim for Sex Discrimination. Note: The Switalski v F&C Asset Management sex bias case, the record sex discrimination claim made by lawyer Gillian Switalski, is to be re-examined. The EAT want to examine fresh evidence. (Jan 2009). FLEXIBLE WORKING : In April 2003 parents and those responsible for looking after children aged under 6 (or under 18 if the child is disabled) have a legal right to ensure that requests for flexible working (part time or from home) are taken seriously by the employer. An important condition is that the employee must have been employed for 6 months to be eligible. In April 2007 this right was extended to those with responsibility for caring for i) spouses ii) adult relatives and iii) adults living at the same address as the employee. In April 2009 we will see an extension of the right to all parents with children under 16 years. A further change will be the removal of the obligation on the employer to give written notice to an employee of the agreement to flexible working arrangements. This obligation will not be removed where the employer refused the flexible working request. REDUNDANCY : The term Redundancy is often misunderstood, or worse used inappropriately to 'ease staff out' of the business. It is the position that is made Redundant, not the person. It is a criminal offence for an employer to fail to give written details of calculation of a redundancy to a redundant employee. An employee is entitled to know why he/she is being made redundant - otherwise the dismissal is unfair. An employee can claim the equivalent of statutory redundancy pay from the state if the employer fails to pay it. It is a breach of the part-time Workers Regulations 2000 to select employees for redundancy by virtue of their part-time status - unless justifiable on objective grounds. If a woman's job becomes redundant while she is on maternity leave she will be treated as 'automatically unfairly dismissed' if the employer had a suitable available vacancy but failed to offer it to her. (Some exceptions for SME's). Civil Servants are not eligible for statutory redundancy pay. Where a business is closing and more than 20 employees at one time are being made redundant the employer has a statutory obligation to consult about the reasons for closure. A tribunal will consider whether the selection was one that a reasonable employer acting reasonably would have made. REPLACING STAFF : Employers must be careful not to breach the duty of mutual trust and confident that exists in contracts of employment, by word or acts that they know will undermine the employment relationship. If an employee were to find out that an employer was in talks with another, to replace them, it would undermine the employee's position and they may claim that their position is untenable. Don't make the same mistake Liverpool Football Club made when they entered into talks with a potential replacement manager, behind Rafael Benitez's back ! A tribunal would look at the whole relationship, including the context in which comments were made. Personnel Today: Feb 2008. MATERNITY : Entitlement to maternity leave is 52 weeks and is available as of right to all employed mothers (more details to follow). Under new regulations, any woman whose baby is due on or after 5th October 2008 will be entitled to enhanced maternity rights. Remember to update your maternity policies to reflect these changes. NEW REGULATIONS EFFECTIVE 1ST OCTOBER 2008 Minimum Wage Regulations 1999 (Amendment) Regulations 2008, SI 2008/1894. Contact us for details. Employers' Liability (Compulsory Insurance). Contact us for details. GENERAL LAWS and ACT's (i) Criminal Justice and Public Order Act 1994;
and The following regulations were introduced to assist with defining indirect discrimination, harassment, less favourable treatment, unlawful harassment, gender discrimination and general principles of treatment of both men and women in the workplace today: Assession (Immigration and Worker Registration)
Regulations 2005
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