Monday, January 5th, 2009
A married father of three has won the right to bring a claim of harassment after being persistently subjected to remarks by colleagues about being gay even though they knew he was heterosexual.
Stephen English claimed that some of the staff at a Portsmouth firm started calling him names and making homophobic comments to him after they found out that he had gone to a public school and that he lived in Brighton.
Mr English found the taunting so distressing that he felt he had to give up his job as a salesman. He brought a claim of harassment under the Employment Equality (Sexual Orientation) Regulations 2003. However, the tribunal ruled against him because he was not actually gay and his work colleagues did not believe him to be gay even though they taunted him.
The Employment Appeal Tribunal upheld the ruling but it also gave Mr English permission to take the case to the Court of Appeal so the law could be clarified.
The Court of Appeal has now ruled in Mr English’s favour. It said it did not matter whether or not Mr English was gay. The key point was that he had repeatedly been taunted as if he were gay. That was intended as an insult to his dignity and made his working environment intolerable.
Mr English was supported throughout the case by the Equality and Human Rights Commission. Its Group Legal Director, John Wadham, said: “Bullying is unacceptable, whatever your background - gay, straight, black or white. The fact that Stephen English’s colleagues knew he wasn’t gay does not excuse their behaviour, nor should it prevent him from enjoying the same rights to dignity and respect at work.”
Anyone who has been subjected to abuse or unfair treatment because of their race, age or sex maybe entitled to claim compensation and should seek legal advice. Please contact Jonathan Friend if you would like more information.
Monday, December 29th, 2008
The Court of Appeal is to rule on whether a heterosexual father of three who was subjected to persistent homophobic banter from his work colleagues can bring a claim of harassment under anti-discrimination laws.
Stephen English, who is married and has three children, worked as a salesman for a company in Portsmouth. He claimed that his work colleagues started calling him names and making homophobic comments to him after they found out that he had gone to a public school and that he lived in Brighton.
Mr English found the taunting so distressing that he felt he had to give up his job. He made a complaint of harassment under the Employment Equality (Sexual Orientation) Regulations 2003 but the tribunal rejected his claim because he was not actually gay and his work colleagues did not believe him to be gay even though they taunted him.
This meant he was not protected by the regulations because the taunting was not due to his sexual orientation but rather because his colleagues were reacting to stereotypical factors such as his having attended a public school and the fact that he lived in Brighton.
That ruling was upheld by the Employment Appeals Tribunal. However, Mr English’s case has now been taken up by the Equality and Human Rights Commission which believes the law needs to be clarified.
The Court of Appeal has now heard the case and is expected to deliver its ruling within the next few months. A spokesman for the Equality and Human Rights Commission said a positive ruling would help people who suffer harassment based on stereotypes.
John Wadham, the Commission’s Group Legal Director, said: “Sustained homophobic bullying is unacceptable in the workplace. The fact that Stephen English’s colleagues knew he wasn’t gay doesn’t excuse their behaviour – the harassment he suffered was distressing.
“By supporting Mr English’s case, we hope to clarify the law to protect those who suffer sustained harassment based on old-fashioned stereotypes.”
This is an unusual case and the Appeal Court ruling should help clarify the protection offered by the law in these circumstances. However, the law already offers a great deal of protection against discrimination on several grounds including sex, age and race.
Please Kevin Smyth if you would like more information about anti-discrimination legislation or any aspect of employment law.
Sunday, December 21st, 2008
The Employment Act 2008 has received the Royal Assent and will now sweep away the current dispute resolution procedures which have proved so unpopular with employers since they were introduced in 2004.
One of the main changes is that the dismissal of an employee will no longer be considered automatically unfair if there is a breach of procedure by the employer.
It will still be possible for a dismissal to be deemed unfair on procedural grounds but a tribunal will be able to adjust the level of compensation - or decline to award compensation at all - if it considers that the dismissal would have taken place anyway, even if the correct procedures had been followed.
Tribunals will also have the power to adjust awards by 25% if either side has failed to reasonably comply with a relevant code of practice. In unfair dismissal cases, this will be the Code of Practice on Disciplinary and Grievance Procedures drawn up by ACAS which is due to come into effect on 6th April 2009.
The Act gives tribunals the power to determine a case without a hearing if both parties put their consent in writing or if the respondent in the case fails to present a response.
Tribunals will also be able to award compensation for financial loss in certain cases, for example, where an employee is making a claim in relation to deductions from wages or redundancy payments.
The Act also introduces tougher sanctions against employers who fail to pay the National Minimum Wage (NMW).
There will be a new way of calculating arrears for workers who have been underpaid. The arrears will be calculated with reference to the NMW rate at the time when the underpayment is rectified as well as the rate at the time when the underpayment originally took place.
It means the employee could be repaid the arrears at a higher rate than he would have originally received had no underpayment taken place, assuming that the NMW has increased in the meantime. The formula for the calculation will take into account the length of time the arrears have been outstanding.
This is intended to compensate the employee for having to wait for full payment and also to act as a deterrent to employers.
Revenue and Customs officers will be given further powers to obtain information from employers relating to NMW payments and will be able to take documents away for copying. Enforcement officers will also be able to impose penalties for underpayment.
There will also be changes to the way criminal offences under the NMW Act are investigated and enforced with the most serious cases being tried in the Crown Court.
The new measures are due to come into effect in April 2009. Meanwhile, Business Secretary Peter Mandelson has launched a campaign to increase people’s awareness of the national minimum wage.
The “It’s Your Call” roadshow is visiting 28 towns and cities, offering people advice on their entitlements and how to make a complaint if they have been underpaid.
Lord Mandelson said: “Of course, most businesses treat staff fairly, but the small number who cheat their workers are flouting the law and undercutting honest competitors.
“Our changes will make sure everyone caught not paying their workers properly faces a stiff penalty - we are determined to ensure workers are paid fairly.”
The changes introduced in the Employment Act are important and are likely to affect all employers. Please Jonathan Friend if you would like more information.
Sunday, December 14th, 2008
A group of women have of won their claim for equal pay after an employment tribunal decided that bonuses paid to male workers were nothing more than a sham.
The women worked for their local authority in a variety of roles such as care assistant, area scheme co-ordinator in the housing department, office cleaner and minibus driver. They compared their roles and responsibilities to men doing such jobs as trade supervisors, joiners, electricians, road sweeper and refuse driver.
They considered their roles and workload to be equivalent to their male counterparts. However, the men received bonuses that were not available to the women employees.
The local authority argued that the bonus schemes were designed as incentives to boost productivity.
The tribunal rejected this argument and found that the bonuses were a sham because they could have little impact on productivity. There were examples where a bonus could be paid to someone who simply carried out the tasks he was already being paid to do anyway.
The bonuses had a disproportionate effect on women because they were paid to groups of employees who were predominately male but were not available to groups that were mainly female.
The tribunal decided in favour of the women and that decision has now been upheld by the Employment Appeal Tribunal.
There has been a large increase in the number of successful equal pay claims brought by women in recent years, both in the private and public sector.
If you feel you are not receiving the same pay levels as colleagues performing equivalent work you may have grounds for a claim. Contact Jonathan Friend for more legal advice.
Monday, December 8th, 2008
The Court of Appeal has ruled that a police force was entitled to pay two of its women officers less than their male colleagues who worked night shifts.
The two female officers did not have to work nights because of their child care responsibilities. Consequently, they did not qualify for the extra payments made to officers who did work unsocial hours.
The officers argued that the enhanced payment scheme amounted to indirect discrimination against women because they were less able to work the night shifts due to their family commitments and the difficulty of child care arrangements.
The Employment Tribunal ruled in their favour saying that although it was a legitimate objective for an employer to want to reward night working, in this case it could have been achieved by less discriminatory methods.
However, that decision was then overturned by the Employment Appeal Tribunal (EAT) which held that enhanced payments were acceptable if they were intended to achieve a legitimate objective and if they were proportionate in achieving that objective. It held that such an objective could not be achieved if people who did not work nights were paid the same as those who did.
That decision has now been upheld by the Court of Appeal which said that the main issue had to be the aim of the employer. In this case, the Chief Constable believed that there should be an enhanced payment for night working. As the EAT had pointed out, this could hardly be achieved if people were paid the same whether they worked nights or not.
With so much attention recently focusing on women winning long and complex equal pay claims, this fairly straightforward ruling will no doubt be welcomed by many employers. However, each case will be decided on its own individual circumstances so it is important to check the legal position before making any decisions on potentially discriminatory pay awards.
For help and advice on all employment matters contact Jonathan Friend.
Sunday, December 7th, 2008
Mistake 1: failing to follow the statutory procedure.
Unless the relevant procedure in the Employment Rights Act 1996 is followed, the dismissal will be unfair regardless of whether or not it is justified.
Advice: follow ACAS approved flowchart, a copy of which can be found on their website www.acas.org.uk and check your actions comply with your obligations under the Employment Rights Act 1996. The new Employment Act 2008 will do away with many of these but they are not in force yet!
Mistake 2: Failing to hear appeals impartially.
If you do not assess appeals of disciplinary or grievance decisions from a neutral standpoint you increase the risk of fighting unnecessary and costly employment tribunal proceedings.
Advice: Arrange for someone who does not know anything of the employee’s difficulties to hear the appeal and decide what action should be taken.
Mistake 3: Failing to act when an employee tells you they are stressed.
You may be held fully liable for the effects of stress or nervous breakdown if you do not act when told that one of your employees struggling to cope with their work.
Advice: look out for tell-tale signs of stress. You should respond quickly to any complaints or behaviour signaling that an employee may be suffering from stress and consider taking action such as redistributing work, buddying or counseling.
Mistake 4: Failing to select redundancies appropriately.
‘Last in last out’ increases your level of risk. If you do not use sophisticated selection criteria your employees will find it easier to win a claim.
Advice: Spend time drawing selection criteria and consider the future aims of your business. Apply criteria impartially and consider factors such as commitment to stay, qualifications, skills, and the amount of training invested.
Mistake 5: Failing to address workplace bullying.
Even if you are not doing the bullying you will be liable for the acts of your employees if they cause such harm.
Advice: Actively manage your workplace so that you can act swiftly if you become aware an atmosphere or specific acts of bullying committed at work or outside of work at events where employees are expected to attend.
Joanthan Friend specialises in advising companies and small businesses on their employment problems and helping you avoid them. Contact Jonathan now for free information on employment issues or for an intital chat.
Saturday, December 6th, 2008
The Court of Appeal has ruled that a bus company did not act unreasonably when it suspended an employee who made an unfounded allegation of racial abuse.
The case involved Centre West London Buses Ltd and one its employees. The employee, who was from Africa, complained that a work colleague had made racist remarks to him during an argument. The colleague, who denied the allegation, was suspended while an investigation was carried out.
An independent witness then said there had been no racial abuse. The employee was then suspended on the basis that his allegations may have been false. That suspension was then confirmed when four other independent witnesses also said there had been no racist remarks.
The bus company decided that although allegations of racism had not been proved, it was not possible to take any further action against the employee because it was not certain whether his account was deliberately false.
He was therefore entitled to return to work but failed to do so due to illness. He was therefore dismissed, but then lodged a claim for unfair dismissal.
The Employment Tribunal held that the bus company had behaved unreasonably when it suspended him but that was then overturned by the Employment Appeal Tribunal.
Now the Court of Appeal has also ruled in the company’s favour saying it was reasonable for it to suspect that the allegations were false and it was therefore reasonable to suspend the employee pending investigation.
For advice on employment discrimination problems contact Jonathan Friend.
Tuesday, December 2nd, 2008
Agency workers who have a contract or a series of contracts for three months or less now have the same right to statutory sick pay (SSP) as other workers – subject to them meeting the usual qualifying conditions.
The entitlement applies to any new period of sickness that started on or after 27th October when the regulation came into effect.
It will not apply to a period of incapacity for work that started before that date.
Employers must pay the SSP in the same way and at the same time as any wages to which the agency worker would be entitled.
The qualifying rules for SSP remain the same and continue to apply.
The full title of the new regulation is the Fixed-term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulations 2008 [SI 2008 2776].
Thursday, November 20th, 2008
“He hit me first!” is the usual cry of fighting children. It met its equivalent in a recent High Court case concerning a squabbling employer and employee.
Employers and employees owe each other a mutual duty of trust and confidence. Breach by an employer can entitle the employee to claim constructive dismissal. This is a shorthand way of saying that breach is so serious that the employee can view the relationship as irreparably damaged and leave. Although it looks like a resignation, in contract terms it is in fact an acceptance of the employer’s breach of contract as something which brings the contract to an end.
Constructive dismissal plays a huge part in employment law and especially in unfair dismissal cases. Rudeness or bullying are often at the heart of the matter. If the employee is treated badly, he can quit or can walk away for good. In either case, he accepts the breach and the contract comes to an end…or so we thought.
Things may have changed. In the recent case of RDF Media Group PLC & RDF Media Limited v Clements, the High Court decided that the right to claim constructive dismissal may depend on how the victim has behaved.
Mr Clements was a shareholder of a media company, IWC. IWC was taken over by RDF who entered a contract with Mr Clements for him to work as a director of content for IWC. The contract stopped Mr. Clements from working for a competitor for 3 years after he left his job but for only 2 years if he was unlawfully dismissed.
The relationship soured and Mr. Clements gave notice. RDF put him on garden leave for his notice period. Things became worse. There were accusations that RDF staff were rude about Mr. Clements in press briefings and at board meetings and it was alledged that Mr. Clements was lining up a job with a competitor and informally agreeing to poach some of his own projects from RDF when he left.
During his notice period, Mr. Clements resigned and claimed constructive dismissal because of the comments. RDF denied constructive dismissal him and said the contract continued. Mr. Clements refused to accept his pay cheque so RDF wrote to say that he was in fundamental breach of contract and had brought the contract to an end. They wanted the 3 years restriction and that depended on it being his fault. Each side blamed the other and the matter finished in the High Court.
RDF won. Whether negative comments were a breach of the trust and confidence term depended on the context and circumstances. Internal comments by directors were not a breach. Comments to the press were. When evaluating the breach it was important to look at the relationship between the parties at the time. If it had broken down altogether or if the employee was seriously in breach (as Mr. Clements was) those factors had to be balanced in deciding whose breach ended the contract. Here, it was Mr. Clements who destroyed the relationship by his own breaches and therefore it was wrong to say that RDF had broken and ended the contract however badly it may have behaved.
This is new and somewhat surprising. Ordinarily, RDF would have been taken to have waived Mr. Clements’ behaviour by not accepting it as a breach which allowed them to call time on the contract. The contract would have continued and then, if he had accepted RDF’s negative comments as a breach, he would have been entitled to claim that he had been constructively dismissed. The question is usually “who acted in response to a breach first?” Here it was “who was the real villain of the peace?” The case was due to go to the Court of Appeal but was settled before the hearing. The High Court decision is not binding but will no doubt have an effect on employment tribunals and other court decisions.
It seems that the Court may have inadvertently started to rewrite the law to cater for a case where it decided in favour of the employer. It is an unusual case and the outcome may be peculiar to the facts. However, the decision stands until the Court of Appeal says otherwise.
Tuesday, October 28th, 2008
More than 30 councils are to be allowed to raise an extra £455m to fund equal pay claims from their female staff.
The move is an acknowledgement that in spite of improvements, there are still too many instances where women receive less pay than men for doing the same work. There has been a huge rise in the last few years in the number of women taking legal action to assert their right to equal pay.
Figures from the tribunal service reveal that the number of claims rose 155% over the last year and now tops 44,000. This has put a lot of strain on many local councils which have suddenly had to pay out tens of millions of pounds.
Now 34 councils are being allowed to sell some of their assets or borrow against them to raise £455m. The money will be used to make one-off back payments to thousands of women who have been underpaid for several years.
The move is part of an ongoing programme which has provided more than £1.1billion over the last three years. Local Government Minister John Healey said: “Work of equal value deserves equal pay. Local government workers have the legal right to fair pay like anyone else, but some councils have let unequal pay persist for decades.
“I’m determined to see councils settle their equal pay obligations. Local government workers should get the equal pay to which they are entitled.
“Good progress has been made over the past year. But this is not a new obligation on employers and I now want to see even greater progress made, and the momentum of the past year maintained.”
Any employee, whether in the public or private sector, who feels they have been underpaid or discriminated against in any way, should seek legal advice as soon as possible.
Contact Jonathan Friend for partial advice on all employment matters.
© Copyright 2008 Burt Brill and Cardens Solicitors