Monthly Archives: November 2015

FGWorks December 2015

FGWorks Dec 2015

This latest edition of FGWorks is packed with key employment law updates and includes issues such as misconduct and punishment in the workplace, key employment law changes for 2016 and information about our latest seminars.

We hope you will find our Newsletter a useful source of information but your feedback is always welcome and important to us as we continually strive to improve and develop the services we offer. Feedback can be sent to fgmedia@fgsolicitors.co.uk.

For further news updates and topics visit us on: www.fgsolicitors.co.uk

 

Common Employment Myths

Perception v Reality

SUMMARY: Employers have a number of misconceptions about their rights in relation to employees. Read this if you want to know five common reasons employees may bring a claim against their employer when these misconceptions have been held.

Retirement

“I can retire someone when they reach 65”.

This is not the case. Retirement is no longer a fair reason for dismissal and an employer cannot force someone to retire unless it can be objectively justified (employers should seek legal advice if they think that a retirement may be objectively justified). If it cannot be justified, dismissal will be unfair and discriminatory on the grounds of age.

If an employee’s performance is not satisfactory, an employer should go through a performance management process in the normal way. If there are questions to be asked relating to workforce planning, consider incorporating discussions about an employee’s future plans, which would include retirement, into the appraisal system. However, only ask open questions about short, medium and long term goals and not direct questions about retirement. All employees irrespective of their age should be asked these questions.

All employees, irrespective of their age, should be treated consistently, otherwise there is a risk of age discrimination claims in an employment tribunal.

Probationary period

“I don’t need to give anyone an employment contract now, I’ll give it to them when they’ve done a trial”.

Employees should be issued with contracts when (or preferably before) they start employment. Employers should not wait until the “trial” period or any probationary period has expired. If certain key terms and conditions are not provided to them within two months of commencing employment, the employer could be liable to pay additional compensation to them if they bring a claim in an employment tribunal.

Employers should also be aware of the commercial risk. A retained employee could, at some point in the future, argue that they are not bound by the terms and conditions given to them after they have started. This could be an issue particularly if reliance on confidentiality provisions and post terminations restrictions is an important consideration for the employer.

Interviews and record keeping

“When I interview people, I just have a chat with them to see whether I like them or not. I don’t need to do anything more formal than that.”

An employer does not need to have an elaborate assessment regime set up to employ people. It is legitimate to have a short interview, but it is vital to have considered before-hand the skills, experience and personal attributes necessary for the job (which should have been done when creating the job description/person specification). Interview questions should focus on establishing whether the prospective employee meets the criteria for the job; similar questions should be asked of all candidates.

A record should be retained of the questions and candidates’ answers as well as the reason for selecting the successful candidate. Employers should be aware that unsuccessful candidates could make a data subject access request to obtain copies of these documents, particularly if they are unhappy with the decision. Managers when making their notes should be mindful not to incorporate opinions, which could cause embarrassment at a later date or could be used as evidence in an employment tribunal claim for discrimination.

Individuals do not have to be employed in order to bring a claim in an employment tribunal. A prospective employee who believes they have been discriminated against during the selection/recruitment process may bring a claim; any notes an employer has retained of the interview would be essential in the defence of such a claim.

Pregnancy

“She was pregnant at the interview and didn’t tell me. She’s not getting maternity leave – I’ll dismiss her.”

An employee has no obligation to tell a prospective employer that she is pregnant at the interview and the prospective employer should not ask this question because they would risk a sex/pregnancy/maternity discrimination claim. An employer cannot dismiss on these grounds as this would also be discriminatory. Compensation for discrimination in the employment tribunal is unlimited.

Employers should remember that all female employees, no matter how short a time they have been employed, are entitled to take maternity leave of up to 52 weeks and retain the right to return to a suitable job.

Outsourcing

We are going to outsource the cleaning to a cleaning company. We won’t need the cleaners we employ anymore so we will make them redundant.”

If an organisation has an outsourcing situation, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) may apply. This means that in some cases the organisation’s cleaners will automatically transfer on their current terms and conditions to the newly appointed cleaning company if this work is outsourced. If employees are dismissed because there will be an outsourcing, the employer could be in breach of TUPE and the employees could bring a claim for automatic unfair dismissal in the employment tribunal.

If an outsourcing is being considered, employers should seek early advice on whether TUPE may apply. If it does apply, an employer has information and consultation obligations to fulfil before the outsourcing takes place. Non-compliance could lead to an employer being ordered by a tribunal to pay up to 13 weeks’ gross pay per employee.

Contact details

If you would like advice on any of the issues raised in this article, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice. 

Employment Law Update Seminar 2016

Employer update seminarDate: Wednesday 13 January 2016

Time: 8:00 – 10:00 am

Cost: Free including breakfast

Venue: FG Solicitors Offices, 2 Deanery Court, Grange Farm, Preston Deanery, Northampton, NN7 2DT

Despite statistics showing a drop in tribunal claims, many cases reported in 2015 have kept us all on our toes.

Start 2016 with a review of key employment law decisions and how these will impact you and your business.

Key cases we will cover include:

Unfair dismissal

  • When can employees involved in an incident be treated differently?
  • Offensive tweets
  • Post-natal depression
  • Is a confession enough?
  • Positive cocaine testing

Working Time

  • Is travelling time working time?
  • Is “on-call” working time?

Whistleblowing

  • When is a disclosure in the public interest?

Equality Act

  • Does this cover caste discrimination?
  • Is obesity a disability?
  • Is an OH report enough?
  • What constitutes associative disability discrimination?

TUPE

  • When is there a transfer?
  • What happens to employees on sick leave at the time of transfer?

And much more…

To book your place at our seminar, please contact us using the details below:

info@fgsolicitors.co.uk

+44 (0) 808 172 93 22

We look forward to seeing you at our next seminar.

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

Christmas for Employers – Naughty or Nice?

Naughty or niceEmployment law dos and don’ts at Christmas-time for parties and presents.

Yes it’s that time of the year again: hyperactive children, unsuitable presents and parties where guests outstay their welcome. And that’s just the staff! In fact the Christmas spirit (and I’m not referring to the alcoholic one) can be found in the workplace and with some careful planning it can be a “nice” time of the year.  It is however useful to remember the employment law implications of festive activities. With this in mind, we have set out below some of the dos and don’ts at Christmas-time in terms of employment law.

PARTIES

When parties are going with alcohol flowing, the risk of injury to employees both physically and mentally increases.  Below are some pointers to help mitigate these risks so that everyone enjoys this time of the year.

BEFORE/DURING THE EVENT

DO   DO NOT  
Consider sending a memo/email to employees about standards of conduct required at office functions and the disciplinary sanctions which could result from breaches of these standards. Encourage drunkenness, drugs or violence at the party.  A free bar for the whole evening may encourage heavy drinking.
Ensure that all employees are invited to an office party, even if they are off sick or some form of family friendly leave. Deliberately leave out any employee from participating in festive events.
Ensure the company’s policy on harassment is up to date and remind employees of its existence well in advance.  Guidance may be needed on appropriate “secret santa” gifts (for example, nothing lewd which could be perceived as offensive!). Hold the party at a venue which would not be suitable for some employees to attend due to, for example, disability or religious reasons.
   
Ensure that the venue for the party is accessible by disabled employees. Assume that everyone will eat the same food or refuse to accommodate dietary requests.
Ask employees about dietary requirements  – employees who have certain religious beliefs may be vegetarian or unable to eat beef or pork for example. Leave junior employees to organise a large office party without guidance as to the necessary health and safety requirements.
Ensure there are sufficient security measures in place at the venue. Assume that all partners will be of the opposite sex.
If partners are invited to the party, ensure that the invitation is to any partners, heterosexual or homosexual. Discuss career potential or remuneration with employees at a social event – these conversations can be taken out of context and are open to misinterpretation.
Warn managers not to discuss career potential or remuneration with subordinates at the party – words of encouragement and good intentions can end up being misinterpreted.
Remember that employer-provided annual parties are not taxable as employee benefits so long as the employer spends less than £150 a head.
AFTER THE EVENT 
Consider warning staff that unauthorised absence the day after the party may result in disciplinary action. Use lateness/absence the day after the party as an excuse to instigate disciplinary proceedings against a particular employee, when other employees have been allowed to get away with similar lateness/absence.
Consider how employees will get home from the venue.  Consider booking taxis or sending out train times. Allow employees to drive home after over-indulging.
Follow up any grievances or complaints raised following a party. Ignore complaints or grievances, particularly in relation to sexual harassment.
Investigate any incident as soon and as fully as possible.  If any serious incidents occur (for example violence or sexual harassment), invoke the disciplinary procedure. Encourage gossip after the office Christmas party.
Try to stamp out any gossip after a social event.  It could for example be interpreted as harassment.  

 

PRESENTS

And here are a couple of notes on present giving:

DO DO NOT
Include all employees if you are intending to give gifts. Discriminate against any individual employees when giving gifts.  For example by giving alcohol to an employee whose religious beliefs require abstinence.
Check the examples given by HMRC of “trivial” gifts which may be given to employees without a tax charge.  For example, a turkey, a bottle of wine, chocolates…  

Contact Details

For more details about Christmas parties or company policies please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172  93 22

This update is for general guidance only and does not constitute definitive advice. 

When The Office Party Packs a Punch….

Xmas PunchSUMMARY: MBNA Limited v Jones considers the issue of consistent treatment in relation to dismissal where employees are involved in the same misconduct incident.

The office Christmas party season is looming and no doubt plans will already be underway for staff to be able to celebrate the end of the year together; the party season will also be a great opportunity to thank staff for their hard work during 2015.

Undeniably an office party can boost morale. Improved morale can be beneficial to the business but employers are more aware than ever of the potential pitfalls that can arise from their generosity. Previously well behaved employees can become uninhibited and reckless after consuming too much alcohol, forgetting that the same standards of workplace behaviour need to be adhered to at work functions or social events.

How would you deal with an employee who punches a colleague at the office social event? Dismissal will usually be reasonable for this type of behaviour, even if it occurred outside the workplace. Here’s the twist though, the victim subsequently sends threatening texts to their assailant. Would you still dismiss the assailant? Would you also dismiss the victim?

Many employers are aware of the need to treat employees consistently when it comes to dismissal. Otherwise, the dismissal could give rise to a costly unfair dismissal claim in the Employment Tribunal.

In the recent case of MBNA Limited v Jones, the Employment Appeal Tribunal had to consider the scenario described above and whether the dismissal of the assailant was unfair due to inconsistent treatment; the victim was only given a final written warning. The employer was found to have acted reasonably when deciding to dismiss the assailant as the leniency shown to the victim was irrelevant. The justification for this conclusion was that it would have been perverse to have treated a deliberate unprovoked punch as sufficiently similar to the texts subsequently sent as a response to being hit.

Recommendations for dealing fighting and violence in the workplace

When dealing with disciplinary issues and particularly those relating to fighting and violence, employers should be mindful of the following:

  • Ensure that employees know the type of behaviour which is unacceptable in the workplace; violent behaviour should be prohibited. Make it clear that conduct rules are equally applicable at work related functions and social events, even if off site.
  • Whilst it may be tempting to take short cuts where violence is involved and move straight to dismissal without further enquiry, always follow the Disciplinary Procedure. A thorough investigation is essential, particularly where a number of employees are involved in the incident.
  • If considering dismissing only some of the individuals involved, ensure that the difference in treatment can be justified. In the case described above there was a clear distinction.
  • When considering whether dismissal is an appropriate sanction, take into account long service, previous good conduct and provocation.

Case

MBNA Limited v Jones UKEAT/0120/15

Contact details

If you would like advice on any of the issues raised in this article, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172  93 22

This update is for general guidance only and does not constitute definitive advice.

Is Caste Discrimination a Workplace Consideration?

 

DiscriminationSUMMARY: Chandhok and another v Tirkey establishes that race discrimination can include caste discrimination.

Caste discrimination in the workplace

The recent Employment Appeal Tribunal (“EAT”) decision in Chandhok and another v Tirkey (“the Tirkey case”) caused a bit of a stir. Whilst many of us focused on the significant award of nearly £184,000 made to the claimant, a domestic worker, in relation to her minimum wage claim, the case was of greater importance as it considered the issue of caste discrimination in the workplace. Until now there has been much debate as to whether a worker who had suffered caste discrimination had the right to legal redress.

Caste usually refers to social levels in certain cultures and racial groups. The impact is that individuals’ positions in society are fixed by birth or occupation and are hereditary. For example, an individual’s caste could be determined by the occupation of their forefathers.

In 2010 the Government-commissioned report on caste discrimination (“the 2010 report”) recognised that caste discrimination could be an issue for employers. This was the case even though from a legal perspective the concept was not expressly addressed in the Equality Act 2010, which only makes reference to “race” which includes “colour; nationality; ethnic or national origin”.

Examples of workplace caste discrimination

The 2010 report did however provide examples of workplace caste-based unfair treatment, bullying and harassment. These included:

  • Exclusion from work social events and networks.
  • Humiliating behaviour such as “women of so called upper castes not taking water from the same tap from where the so called lower caste person drinks”.
  • Bullying and harassment by superiors which also affected promotion, task allocation and dismissal.  Examples given included:
    • Not permitting someone of a low caste to take holiday when requested.
    • An individual being promoted to manager but his team not accepting his authority because he was of lower caste than them.
  • Recruitment – if employees are taken on by recommendation, this could be because they are of the same caste.
  • Task allocation – a higher caste manager was alleged to allocate better paid work to higher caste employees.

The equal treatment principal

Whilst employers are fully familiar with the legal requirement that all workers must be treated equally regardless of a protected characteristic under the Equality Act 2010, caste discrimination has always been a grey area.

Caste discrimination is a type of race discrimination

The Tirkey case has however provided some long awaited clarity, confirming that caste discrimination can be classified as a type of race discrimination. This case also provides a clear (if extreme) example of caste discrimination in the UK – on the particular facts it was found that Ms T was the victim of unlawful harassment on the ground of her race (as well as other successful claims).

The facts of this case are as follows:

  • Ms T worked for Mr and Mrs C as a domestic worker. Her caste (which is inherited and immutable) is the Adivasi, which is known as a “servant caste”. Adivasis have been recognised as being at the lowest point of almost every socio-economic indicator, and are frequently equated with Dalits (once known as “untouchables”). Ms T claimed that Mr and Mrs C treated her badly and in a demeaning manner, and that this was in part because of her low status which was infected with considerations of caste.
  • The employment tribunal was told that over a four and a half year period Ms T:
    • worked an 18-hour day, seven days a week;
    • slept on a foam mattress on the floor;
    • was prevented from bringing her Bible to the UK and going to church;
    • had her passport held by Mr and Mrs C and she had no access to it;
    • was not allowed to call her family; and
    • was given second-hand clothing instead of choosing her own clothes.

This is (we hope) an extreme situation which does not involve a normal employer/employee relationship. Employers should however be aware that caste discrimination can and does occur in many business situations.  The 2010 report stated that caste awareness in Britain is concentrated amongst people with roots in the Indian subcontinent, who comprise five per cent of the population.

Equality and diversity initiatives can be beneficial

Employers with robust management initiatives around equality and diversity should be in a position to prevent unlawful discrimination on the grounds of a worker’s caste.  Main considerations for any equality and diversity strategy should involve the following:

  • Having a top level commitment to equality and diversity in the workplace.
  • Ensuring there is an equal opportunities policy in place which makes it clear that discrimination, bullying and harassment will not be tolerated. Employees should be made aware of the existence of the policy and the likely sanctions for breaching it.
  • Making sure equality training is an integral part of any training programme.
  • Analysing business decisions and practices which could have the effect of discriminating on the grounds of any protected characteristic including race (caste).  Areas for review include: discipline and grievances; recruitment; promotion; pay and reward; terms and conditions; and access to training.
  • Investigating complaints of discrimination, bullying and harassment under the grievance procedure or, where relevant, the anti-harassment and bullying policy.
  • Having strategies which ensure that the workforce is diverse and is representative of the areas/communities from which it is drawn.
  • Monitoring the effectiveness of the equal opportunities policy.
  • Taking remedial action where inequality is identified.

Those businesses that strive to remove workplace bias will find themselves much better off in terms of staff morale, productivity and access to untapped talent.

Cases

Chandhok and another v Tirkey [2015] IRLR 195

Contact details

For more details about discrimination in the workplace, developing workplace equality and diversity strategies and training please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.