We have been recruiting catering staff and I saw a chef who was ok, but was a bit overweight and in his late 50s. I emailed his CV to my boss who emailed me back to say that “he is a bit long in the tooth for us”. Unfortunately he managed to also copy him in on the email. When that person emailed my boss back, to express his resentment, she replied that it was nothing personal, but we are quite a young and dynamic business and they would probably not fit in with the team.
Is there a way out of this?
Legally you are up a proverbial creek without a paddle. It is rare to find direct evidence of age discrimination, and the first email was probably sufficient to get you into trouble at a Tribunal, assuming this leads to an age discrimination claim. The second email just drove a further big nail into the coffin lid.
Since 1 October 2006, age discrimination legislation (now contained in the Equality Act 2010) has made it unlawful for employers to discriminate on grounds of age in the opportunities that are afforded to employees for promotion, transfer and training, and for the receipt of any other benefit in their employment. Most employment tribunal claims are from ex-employees, some are from people remaining in employment, and a few are from people denied the chance to get a job, who believe that they have been unlawfully discriminated against, as this case relates to.
Managers need to be aware of the fact that they should not discriminate when it comes to offering employment, training, or promotion, on the grounds of age. Managers and anyone involved in the recruitment process need to be aware of age discrimination legislation and be trained in and follow good recruitment practices. The process of shortlisting and interviewing is to identify individuals that have the skills to do the job without regard to their age.
The law not only makes it unlawful to discriminate on grounds of age, directly and indirectly, but also to harass anyone intentionally or unintentionally (by subjecting them to behaviour which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment), Mocking or bullying individuals because of their age, will be considered as harassment. The Manager’s actions in seeking to explain her discrimination just dug a bigger hole, which could also be seen as harassment. It is stupid to assume that people of all ages cannot get along at work or outside of work, so trying to justify this comment will just keep digging a bigger hole. Both comments indicate a negative attitude to age, which can be construed as influencing the ‘decision’ not to pursue the application.
You have three approaches you can take:
- Write to apologise profusely and hope that does the trick.
- Apologise and ask them in for a further interview. They will either get the job or at the very least give you ammunition to justify why they would not have got the job anyway.
- Contact them or ACAS to sort out a deal i.e. a Settlement Agreement or a COT3 which includes a confidentiality clause to cover your embarrassment.
I would go for option 2, but if the candidate turns out to be ‘ok’ or even “quite good but not exciting” then I would give him a second chance. If he is no good then take care to give some constructive feedback that does not relate at all to his age and is totally job specific in what he is lacking. Whatever happens organise some form of Equal Opportunities and Dignity at Work training for all of your Managers as soon as possible.
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.
A long serving manager went on a pre-booked holiday to attend his daughter’s wedding. He had not made proper arrangements for cover so we were embarrassed by a potentially major customer service failure. A decision was taken to issue him with a written warning upon his return, in relation to the failure to arrange cover. He was handed the letter which started by saying “This is a written warning…”. He argued this warning twice, firstly in a row on the day he read the letter and again a fortnight or so later when he expressed dissatisfaction that the warning would stand. As part of his arguments, the Claimant stated he had acted in accordance with usual practice when arranging cover, and no process had been followed when issuing the warning. A week later he spoke to this boss to say he was resigning, collected his pay packet, returned his keys and left. He then sent an email to the boss, repeating his explanation about cover, complaining that he had been given a warning without any process being followed and explaining that he felt he had no choice to resign as he felt he had been constructively dismissed.
We emailed him to say, he should withdraw his resignation and attend a grievance meeting (if it was his wish to raise a grievance). Following advice, we suggested that the previous letter (the one which started “This is a written warning…”) was not intended to be a formal warning and was not part of the disciplinary process.
Are we now safe from a Tribunal claim?
The letter sounds like a written warning to me. On that basis such a penalty looks wholly disproportionate to the misconduct or performance he may have been guilty of, had a proper procedure been followed. The bigger problem is that no process has been followed at all. This failure to follow any process (either your own process or the ACAS Code) is likely to be held to be a breach of the implied term of trust and confidence, entitling him to resign in response to that breach.
It is a well established principle that a Claimant should not delay in accepting a breach and resigning in response to it. You can try to argue that his delay of 3 weeks between the warning and his resignation was too long, and so he had waived his right to accept the breach and make a claim. A Tribunal may well not accept this and find that he had not waited too long. He complained quickly about your conduct, which took you around a fortnight to respond to, and had walked out and sent an email which expressly stated he considered he had been constructively dismissed.
You might be able to get a reduction to the compensatory award, on the basis that he was guilty of some contributory conduct towards his dismissal, however he might get an uplift of up to 25% on the basis that the Club failed to comply with the ACAS Code of Practice.
A proper procedure must be followed with all disciplinary sanctions (not just dismissal) and that procedure must include a meeting and offering a right of appeal. Appeals can be used as, either a review of the original decision, or a complete rehearing, which is beneficial if there have been any flaws in the disciplinary process. This is the way you should have gone, instead of trying to simply back-track on the previous letter.
You can have several options:
- Pray that he gets another job and forgets about it, which is unlikely
- Wait for the Early Conciliation approach from ACAS and offer to settle quickly
- Approach ACAS to let them arrange conciliation and facilitate a deal
- Approach him on a without prejudice basis, to seek to arrange a Settlement Agreement
I would not rely on the first option. I would suggest seeking professional employment law advice in future as unfortunately, your actions over this matter are likely to be costly.
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.
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.
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:
- 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.
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.
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:
- A perception that the MD is wrongly taking advantage of his seniority and is guilty of unjustifiable favouritism.
- A lack of trust with the senior team as the MD is not capable of making rational judgments especially if it involves his ‘partner’.
- 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.
- 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:
- Whether the promotion/pay increase was properly approved.
- 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.
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.
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.
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.
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.
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.
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:
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- 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.
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?
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.
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.
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.
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.
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.