Discrimination

We caught one of our employees committing an act of gross misconduct (theft) and dismissed him properly in terms of our procedure. We have now had a Tribunal application saying that because everyone, including the Managing Director called him ‘Pikey’ we are guilty of discrimination which makes the dismissal unfair and discriminatory. We think that he is of Romany extraction.  It is true that we called him this, because that is what he was happy with and indeed referred to himself as.

Peter replies:

You are in difficulty as it is discrimination to treat someone less favourably due to having, or being perceived to have, a protected characteristic. The Equality Act 2010 says people must not be discriminated against because of their race. It is race discrimination if they are treated unfairly because of one of the following factors:

  • colour
  • nationality
  • ethnic origin
  • national origin.

Some Gypsies and Travellers are protected against discrimination on the basis of their ethnic origins. The courts have said that Romany Gypsies and Irish Travellers are protected against race discrimination because they’re ethnic groups under the Equality Act.

Trying to argue the point about whether this person is really protected is likely to be a fruitless task, given that in any event they can argue that discrimination by perception is just as bad as direct ‘normal’ discrimination.

Despite being classed as ethnic groups and protected by equality legislation, discrimination against Gypsies and Travellers is so rife across the UK that some feel they have to hide their ethnicity when applying for jobs according to a 2016 report by the Equality and Human Rights Commission (EHRC).

Even though you may have dismissed him fairly, he is entitled to argue that the discrimination so tainted the dismissal as to make it unfair. You may be able to argue against this, if the person making the decision to dismiss was not motivated in any way by racial discrimination.

You will however be unlikely to succeed in winning the claim for racial discrimination, albeit if you can ‘prove’ that the individual did not really take offence, then it may be possible to limit the compensation for injury to feelings.

You will not however be able to do much to limit the damage to your reputation, and for that reason it would be worth exploring the scope for an agreed settlement to make this go away, making sure that such an agreement also covers a confidentiality clause.

You might also need to organise some training for your entire workforce about what your Equal Opportunities policy means in real and practical terms especially on the matter of banter.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Love Actually in the Workplace

The Senior Team are uncomfortable because the Managing Director has promoted one of our colleagues to a new role of Deputy Managing Director and given her a ridiculous salary increase, (albeit only the FD and I know about the salary hike). This is not sour grapes, but due to the fact that their ‘relationship’ is the worst kept secret in the whole business, and it had already drawn lots of snide and crude comments about both of them from the shop floor. We are not sure if the Chairman and Non -Executive Directors are aware of it.

Peter replies:

As employees spend nearly as much time at work as they do at home, it is easy to understand why it is common for personal relationships, not just friendships, to be formed. However, personal relationships between colleagues can give rise to a number of issues for employers. They create a distraction for the employees concerned and their colleagues, as well as giving rise to complaints of unfair treatment, favouritism and abuse of power, and even discrimination or harassment.

If the relationship is between colleagues of different seniority, there is a risk that the more senior employee may abuse their position, to influence decisions relating to their partner and subordinate work colleague over performance assessment, pay reviews or applications for promotion. There is an even bigger commercial risk if they both have access to corporate bank accounts as that creates the opportunity for potential wrongdoing.

Such relationships at least have the potential to raise suspicions of unfair treatment among colleagues. According to a 2016 survey conducted by Vault, a company that ranks and reviews employers, while the majority of respondents did not have a problem with relationships between colleagues, a third thought that relationships between co-workers at different levels were unacceptable.

There are four problems here:

  1. A perception that the MD is wrongly taking advantage of his seniority and is guilty of unjustifiable favouritism.
  2. A lack of trust with the senior team as the MD is not capable of making rational judgments especially if it involves his ‘partner’.
  3. There is the concern over “pillow talk” and that the Deputy MD is made aware of business sensitive issues that they would not otherwise have been aware of.
  4. If the relationship later goes wrong and the Deputy is later removed as a consequence it could result in a claim for sexual harassment.

Whilst it may be sensible to introduce some form of personal relationships policy, this is likely to be very badly received by the people responsible for approving it.

In the USA, consensual relationship agreements – known as ‘love contracts’ – are used by some employers as a way of attempting to limit liability for claims of discrimination or harassment by employees, who are romantically involved should the relationship flounder. The use of these ‘love contracts’ does not appear to have taken off in the UK to any significant degree and in this case, would be very much about shutting the stable door after the horse has bolted!

We would recommend that you find a way of raising your anxieties with the Chairman or other non executive director on a confidential basis about two issues:

  1. Whether the promotion/pay increase was properly approved.
  2. How they are going to address matters so that your concerns about partiality and fairness are addressed.

There is probably no easy way out of this, and it is going to get messy, but it is likely that one or both will have to go. If not, it looks likely that the senior management team will be looking for new jobs to avoid an intolerable situation.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

Employee ‘hates work, customers & colleagues’ post on Facebook

An employee has posted a comment on his personal Facebook page saying that he hates his work, our customers and his colleagues. The comment was made in his own time on his home computer, but it has been seen by some of our regular customers.  His manager has told him that we will dismiss him.

Peter replies:

Whenever an employer is considering disciplining an employee because of social media misuse, the ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed. This requires:

  • a letter to be sent to the employee to explain the  allegations and the potential sanctions
  • a disciplinary meeting with the employee to give them an opportunity to explain their side of the story
  • informing the employee of the decision
  • giving the employee an opportunity to appeal against that decision.

An employer should always act reasonably in the circumstances. Therefore, before coming to a decision as to whether the employee should be dismissed, you should reflect on whether the posting and any damage caused by it, is so bad that it justifies such action. You must avoid knee-jerk reactions. Consider what was actually said and the context. Saying “I think I work in a nursery and I do not mean working with plants” is very different to specifically saying “my manager is apparently a c**t” (both of which are examples that have featured in Tribunal cases.

Someone must investigate the matter thoroughly. The employee should be given an opportunity to explain themselves. There have been situations where, for example, an employee’s account has been hacked and they did not make the offensive posting.

You should also evaluate the reach and impact of the posting; the more posts that are made and the more people that see them, the more likely it is to have a damaging impact. In this case regular customers are already aware of what was written. Consider your own internal guidance as most sensible employers now have a social media policy. Take into account any mitigating circumstances; where the employee has swiftly removed the posting or apologised, you may perhaps want to be more lenient, particularly if they have a previously good employment record.

Case law continues to evolve on employees being disciplined for what they say online, both in and outside the workplace. You can seek to treat social media postings by employees as disciplinary matters if they would genuinely damage your interests.

After the investigation, decide whether disciplinary proceedings are appropriate given the circumstances. If you believe that they are, start those proceedings by following the steps set out in your Disciplinary Procedure. Conduct a fair, impartial, thorough disciplinary hearing; then make up your mind.

To safeguard your business against social media misuse occurring in the first place:

  • Introduce a robust Social Media Policy which clarifies how employees should behave and the consequences of the misuse of social media, even those written in their own time using their own equipment.
  • Ensure the policy fits with existing employment documents such as policies on bullying and harassment, data protection etc.
  • Train employees so that they fully understand the expected standards.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Dismissal Due to Drink Driving Ban

We are in the motor trade and one of our sales people has just lost his driving licence due to drink driving, for 2 years. He is 59 years old and there is nowhere else to redeploy him to within the organisation. He cannot do the job without taking customers for test drives, so we have told him that it is likely that he will be dismissed due to a lack of capability.

Peter replies:

One of the potentially fair reasons for a dismissal arises in circumstances where an employee could not continue to work in the position held, without contravention of a statutory enactment i.e. it would be illegal for them to do this part of their job.

The main example of this type of dismissal is where an employee has been banned from driving. If the dismissal is for contravention of a statutory enactment, or for ‘some other substantial reason’ – SOSR, the employer will need to demonstrate that consideration has been given to any adjustments to the role, or other suitable vacant positions, prior to taking the decision to dismiss. For example, it is necessary for an employer to consider how essential driving is to the work carried out by that employee. It is also necessary for an employer to follow a fair process before deciding to dismiss that employee. For example, the employer should:

 

  • consult with the employee
  • consider any alternative to dismissal, such as any opportunities to re-deploy the employee
  • consider the length of the ban, a couple of months is very different from a ban of well over a year in duration
  • take into account the size and administrative resources of an employer
  • assess the impact the ban has on the employee’s ability to perform their role
  • consider any adjustments which can be made to the role, for example, would the employee’s colleagues be able to step in?
  • has the court case been covered in the media with a direct link to the employer that has led to bringing the organisation into disrepute

It may also be possible in such cases to dismiss for SOSR provided a fair process has been carried out.

An example from case law is Appleyard v FM Smith (Hull), EAT. In this case a maintenance fitter lost his driving licence. It was a requirement of the job that he held a current driving licence. Mr Appleyard was required to carry tools and spare parts in his vehicle and therefore it was impractical for him to use public transport. The employer looked at:

  • the possibility of re-organising the work so that he was based at the depot
  • the possibility that he could get lifts from other employees
  • the size of the team
  • the length of the ban – he lost his driving licence for 12 months

As it was a small team, none of the suggestions was practicable. Mr Appleyard was dismissed and this was held to be a fair dismissal in the circumstances.

Capability in legal terms is about ill health or incompetence, not legal requirements. The key to success with such situations is to be careful and considered, rather than having a knee-jerk reaction, and not thinking about the correct legal categorisation.

Many organisations have a rule that losing a driving licence is a conduct issue, which is probably true in the circumstances of a drink-drive ban, but it is probably safer to dismiss for SOSR, or rely on statutory illegality as the reason for dismissal. In any event warn the employee of the potential consequence of dismissal in the event that no other suitable options are found.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Flexible Working Request

We have received a flexible working request from an employee nearing the end of her maternity leave. We have held a meeting and she has clearly not thought it through in relation to its impact on the business, but I have told her Line Manager that we cannot turn it down, so have to go along with what she wants.

Peter replies:

All employees have the right to request flexible working after 26 weeks employment service, as long as they have not made a similar request in the previous 12-month period. However, it is a right to request, not a right to demand and receive, contrary to what has almost become an ‘urban myth’.

The right is simply the right for employees to request changes to their working hours, working times or location, and if granted, such changes become permanent changes to their terms and conditions of employment. This is often associated with requests to work part-time, following return to work after maternity leave, but is certainly not limited to that scenario.

Employers may only refuse requests where there is one of eight business reasons for doing so:

  1. the burden of additional costs
  2. an inability to reorganise work amongst existing staff
  3. an inability to recruit additional staff
  4. a detrimental impact on quality
  5. a detrimental impact on performance
  6. detrimental effect on ability to meet customer demand
  7. insufficient work for the periods the employee proposes to work
  8. a planned structural changes to the business

Case law on this right is rare, but recent cases have been sympathetic to employer difficulties, and have emphasised that it is for the employer to run their business as they see fit. Tribunals will be reluctant to interfere with an employer’s business judgment. There is a risk of an adverse finding if the employer does not properly follow the set procedure and the ACAS Code on handling such requests. There is also the possibility of a sex discrimination claim, but if the approach is non-discriminatory then the employer should be safe.

We advise clients to keep an open mind, and focus employees on the requirement that they must give an explanation on what effect, if any, the employee thinks the proposed change will have on the organisation, and their suggestions as to how the effect may be dealt with.

If you are not convinced  by the workability of the employee’s proposal, and can substantiate this on more than ‘feelings’, then you should say no to their request. They do, however, have the right to appeal, and they should be clearly told of this in your letter explaining why you are declining their request. You will then need to prepare for an appeal by finding someone senior, who was not previously involved and who is open to finding a workable compromise, providing the employee is also open to finding something workable. Consideration should also be given to a trial period, if the appellant Manager is willing to give it a try.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Prison Dismissal

We have an employee who has long service that has just been sentenced to two months in prison for non payment of some bills.  Presumably it is a straight forward dismissal because he is in prison or maybe he has dismissed himself so we need to do nothing?

Peter replies:

It is not that straightforward. There is no such thing as self dismissal and he has not resigned.

Case law has established a number of factors for the employer to consider in these circumstances.

  • The nature of the offence.
  • The length of the sentence.
  • The nature of the employee’s job.
  • The effect of the employee’s absence on the business.
  • The damage (if any) to the employer’s reputation.
  • The employee’s previous track record, length of service and disciplinary record.
  • Whether in all the circumstances a reasonable employer could have been expected to wait.

You should carry out an investigation and conduct a fair disciplinary procedure, as far as possible in the employee’s absence, before deciding whether or not it would be reasonable to dismiss him.

If the employee is likely to be in prison for a long time, it may be fair for the employer to dismiss him on the grounds that he will be unable to perform the contract of employment — known as frustration of contract. Frustration is a difficult legal concept in employment law terms, as tribunals are usually reluctant to accept it as a reason, because it deprives the ex employee of any legal redress.

Frustration of contract is unlikely to apply for a relatively short prison sentence. There is a huge difference between ten years for a violent crime and three weeks for non-payment of maintenance. If the employee is imprisoned for a short time, for an offence that is unrelated to his or her work, it may be reasonable for the employer to hold the employee’s job open until he or she returns. You must still act reasonably in concluding that the employment is ended for that reason.  The doctrine of frustration is normally accepted by the courts only where the frustrating event renders all performance of the employment contract clearly impossible. Our advice would be that it should only be actively considered for longer periods of imprisonment.

ACAS recommend taking disciplinary action if you want to terminate employment.

If an employee is sentenced to prison for a short period, (which 2 months is) the best thing to do is treat it as an absence issue and deal with as well as you can with someone with limited ability to communicate. Investigate the circumstances before making a decision and try to give some opportunity for them to have their say even if it is through an exchange of letters.

Alternatively, if the offence relates to your business or the employee’s actions have adversely affected the reputation of the business you may be able to dismiss him for some other substantial reason (SOSR) but this would still require following a proper procedure and applying sound judgment.

Doing nothing is not an option in practical terms, if you do not want him back. It may well be wiser and safer to do nothing other than to keep in contact and welcome him back to work after his sentence. Finally you do not have to continue to pay him whilst you are sorting out the situation, as for the moment he is currently not able to fulfil his work duties.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Dismissal for Some Other Substantial Reason

We want to get rid of a sales employee who has been with us for about 3 years but it is not really for a performance or even a conduct issue.  The employee meets his targets but is not liked by some of our key customers and we are worried that if this dislike continues we could start to lose business.  We have nothing in writing but some of the customers have spoken to our Sales Director about this issue.  The issue is simply down to the fact that our customers like to have a bit of a laugh and joke with the people they do business with.  He is not perceived as having much of a sense of humour and on our corporate hospitality days with our customers he has failed to build up any rapport. He tends to keep himself distant from the rest of the sales team but no one is complaining about him in-house.  We believe it would be better to dismiss due to conduct but with the fall back of capability.

Peter replies:

As you have identified this is not really a capability or conduct issue. Dismissal for Some Other Substantial Reason (SOSR) is a potentially fair reason for dismissal. It is widely seen as an important residual or “catch-all” category of dismissal, intended as a safety net — enabling employers to sweep up reasons for dismissal that do not fall conveniently within other categories. The label has been held to apply to dismissal in a variety of situations, including:

  • Re-organisations leading to dismissals arising out of (usually changes to terms and conditions), which fall short of constituting a redundancy.
  • Dismissal of temporary employees who are replacing employees medically suspended or pregnant. Individuals should always be advised of the temporary nature of the job.
  • TUPE dismissals for a genuine economic, technical or organisational reason entailing changes in the workforce.
  • Dismissals at the behest of third parties and to situations where an employer takes action to protect its legitimate business interest.

It is often regarded as a useful category of dismissal for senior employees whose leadership failings do not fall neatly into either the “conduct” or “capability” boxes. It has also been a useful category for dealing with particularly troublesome employees who are unable to get along with their colleagues. The clue is in the term, it has to be substantial and not just whimsical, trivial or capricious. Dismissal still has to be reasonable which means that some effort ought to be taken to effect an improvement and to consider alternatives to dismissal.

As always, the employer must follow a fair procedure in dismissing the employee under the SOSR label. There is case law where dismissal of a Finance Director for having an ‘awkward personality’ was held to be fair despite a lack of warnings.  In this case, however it would be wise to raise the issue with the employee to see if he is prepared to commit to changing his approach to customers. If he is not prepared to acknowledge the problem, then having a structured protected conversation and offering a settlement agreement might well be the best approach. If he does not accept that proposal, then follow a fair procedure and give him his full entitlement to notice or payment in lieu of notice assuming that the problem does not go away.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Fixed Term Contract Termination

We took on a person to do a fixed term contract for a four month period. We reached three months and it was clear that there will be no work for them after the 4 month limit. We thought about just telling them on the final day that they would not be extended but decided that we ought to treat this as a redundancy so have put all the people in that section at risk whilst we conduct a formal redundancy selection criteria exercise. Our other staff are now complaining about this.

Peter replies:

You really have gone from one extreme to another. You were right to avoid just letting the person go because ‘their notice period started on day one’ but this is not a situation which calls for the formality/stress of a redundancy procedure.

The fair steps for employers to take when dealing with the end of  a number of long term fixed-term contracts might include  the following stages as part of a redundancy or dismissal procedure, although the procedure would be adapted to different circumstances:

  • A reminder. A reasonable period before a fixed-term contract is due to end it is advisable to remind the employee in writing of the potential end date.
  • A meeting. Before the end date a meeting should take place with the employee in which they are reminded that the contract is due to end on the given date. This meeting should be followed up by a letter which confirms the risk of dismissal at the end of the fixed term.
  • Suitable alternative work. Any vacancies should be considered and offered to the employee before the end of their current employment if they are suitable.
  • Dismissal. A reasonable time before the scheduled end of a fixed-term contract, a dismissal notice should be sent confirming the expiry of the fixed term and including information and the right to appeal.
  • Appeal. Fixed-term employees can appeal against notice of dismissal on grounds of redundancy.

Employees on fixed-term contracts which end are entitled to a statutory redundancy payment if they have worked continuously for the employer for the qualifying period of two years.

It is not necessary to follow the structure contained in the Acas Code of Practice on disciplinary and grievance procedures, but in some circumstances it is good practice, even though the Code does not specifically apply to non-renewals of fixed-term contracts (or to redundancy dismissals). Following the Acas procedure when a fixed-term contract expires has some benefits. Employers need to be careful; and the prudent employer will continue to follow a procedure which encompasses at least the three main steps applicable under most procedures (that is letter, meeting, appeal) to try to reduce the risk of any claims. In many cases, the employee will be aware that the employment may not be renewed and may waive their right to a formal meeting under the procedure offered by the employer.

You should therefore withdraw the redundancy consultation process with as much grace and dignity as you can manage, or conclude it quickly and do what you can to restore trust and morale.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Maternity Leave and Keep in Touch Days

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We are really displeased that a key employee is wanting to take her full 12 months maternity leave, so we have told her we expect her to come in to do the payroll for us one day each month, and we will call them KIT days.

Peter replies:

The law does encourage employers and employees to stay in contact with each other during maternity leave. Prior to the introduction of Keeping in Touch (KIT) days in the Work and Families Act 2006, it had not been possible to do so without bringing the leave to an end, or losing maternity pay.

An employee who is on maternity leave can work for her employer for up to 10 days by mutual agreement. Important points to note include the following:

  • The employee can go in for one hour or a whole day – this will still be a Keeping in Touch day.
  • The decision to undertake a KIT day must be made by agreement between the employee and the employer.
  • The days can be taken singly or in blocks
  • The employer has no right to demand that any such KIT work is undertaken, and the employee has no right to undertake such work.

So there is no obligation on either party to agree to the days, which means that neither party can insist on work being carried out. Furthermore if a woman is dismissed or otherwise penalised for refusing to do such work, she can claim automatic unfair dismissal or unlawful detriment.

It is all a matter of agreement, neither party can demand or insist. Reasonable contact can be made from time to time by the woman, or the employer to discuss arrangements for her return by asking about KIT days. By maintaining a minimal, but regular, presence during maternity leave – again bearing in mind there is no obligation for the employee to do so – staff can stay abreast of important workplace issues. This provision can make things easier for both the organisation, and the employee. It will allow a smoother reintroduction to the team, without employees having to hit the ground running after a long period of absence. The rate of pay is always a matter for agreement between the employer and employee, and may be provided for in the employment contract, or as agreed on a case-by-case basis.

Your actions are close to amounting to a detriment, and could even result in a claim for constructive dismissal, or discrimination on the grounds of sex or pregnancy/ maternity. You therefore need to apologise for your ‘expectation’ and seek to persuade her that it would be good for her to keep in proper contact with the world of work. This should be done in a much more friendly and constructive way than your first attempt.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Long Term Sickness – Automatic Dismissal

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We have a policy and it is also in our contracts of employment which say that we can dismiss after 26 weeks of continuous absence from work.  We are considering dismissing someone and they have said that this would be no defence to a claim for unfair dismissal and disability discrimination. Our wording is very clear and it has never been challenged before.

Peter replies:

Such a policy or contract term will mean there is no breach of an express term of the contract should dismissal occur, but it will not necessarily mean that the dismissal is fair or otherwise safe. As well as contractual terms, employers should also be wary of the implied duty of trust and confidence. Relying on out of date documentation, just because it is in the contract, is invariably a very unwise approach.

In considering the issue of fairness, a tribunal will consider the process followed by an employer. In managing long term sickness absence, it is always prudent for an employer to seek medical advice, and to consult with the individual.  Doing neither is a recipe for a successful unfair dismissal claim. If you have not been communicating with them regularly, you are already on the back foot and you should have been focussing on what might be done to get them back to work.

Getting good medical advice will also help with your efforts to assess whether the employee’s condition amounts to a disability, in accordance with the disability discrimination provisions of the Equality Act 2010. If a medical report identifies a disability, employers have a duty to make reasonable adjustments. This duty is broad and could cover physical adjustments to premises, or the provision of equipment to assist them in carrying out their duties. It can also mean adjustments to the role itself, by removing certain duties and reallocating them, changes in hours or place of work, or providing further training and supervision. It might also involve transferring to another vacant post. Losing a discrimination claim is usually very expensive.

Good managers will be aware of their legal responsibilities to make reasonable adjustments for disabled people, and that the duty does not stop with the return to work but continues as the situation changes. Very good managers will do this regardless of whether or not the employee fits the convoluted legal definition of ‘disabled’, just because they want to do the right thing i.e. good people management.

You need to get early advice, preferably from an Occupational Health professional rather than their GP; keep talking to them, and considering their wishes and realistic expectations. You may ultimately decide to dismiss (with notice), but it will be on a much safer basis than you are currently working from. You should also review all your contracts and policies for similar outdated wording.

 

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

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