Supreme Court Asked to Review Fifth Circuit Decision Shutting Down President Obama’s Immigration Plan

On November 20, 2015, attorneys for the Obama administration appealed a November 9, 2015 decision from the Fifth Circuit Court of Appeals which upheld an injunction against the implementation of President Obama’s executive immigration policy known as the Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA.  The injunction, sought by 26 states, prevents implementation of the president’s plan on a nationwide level.

According to the Fifth Circuit’s opinion, DAPA would have deferred immigration proceedings, granted work authorizations, removed certain Social Security and Medicare restrictions against over four million undocumented individuals currently in the United States, and grant those individuals additional state benefits.  In a 2-1 decision, the appellate panel upheld the district court’s injunction against DAPA, holding that the plaintiff states were likely to succeed in showing that President Obama’s policy constituted a “substantive” rule that must go through notice and comment rulemaking pursuant to the Administrative Procedures Act.  However, the Fifth Circuit went beyond the district court’s holding by also concluding that DAPA is “manifestly contrary” to the Immigration and Nationality Act.  In other words, the Fifth Circuit found both a procedural and a substantive defect in DAPA, curtailing the Obama administration’s ability to implement DAPA through the normal notice and comment rulemaking process.

Due to the timing of the federal government’s appeal, it is possible that the Supreme Court will hear this case during its current term, which ends in late June or early July 2016.  According to SCOTUSblog, the Solicitor General asked the Court to grant “immediate review” of the Obama administration’s petition.  However, many speculate that the 26 states will request additional time to respond to the federal government’s petition in an effort to push the decision to the next Supreme Court term.

While the Fifth Circuit’s decision does not directly impact employer-sponsored immigration issues, it does significantly reduce the pool of potential authorized workers in the United States.  The ruling also sends a message to President Obama that similar executive actions, whether dealing with immigration or another subject matter, may be met with successful court challenges notwithstanding congressional gridlock.

US Supreme Court Hears ERISA Case With Implications for Self-Funded Employer Health Plans

Last week, the US Supreme Court heard arguments in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan.  At issue in that case is whether a beneficiary of a benefit plan governed by ERISA can defeat enforcement of the plan’s right of subrogation (its lien) by dissipating the funds received by that beneficiary.  A ruling against the plan could have far-reaching practical considerations, particularly to employers with self-insured health plans.  At the minimum, a ruling in favor of the beneficiary would serve as a cautionary tale for plan administrators: do not allow a significant amount of time to elapse during negotiations of an equitable lien prior to bringing a lawsuit for enforcement of the lien.

A detailed discussion of Montanile is on Squire Patton Boggs’ Compensation and Benefits Global Insights blog.

How do you like them Apples?  Apple, Inc. wins dismissal of class action brought by its employees at retail stores in California

“iPhone.”  “Technological innovation.”  “Jobs.”  These are the words that come to mind when you think of technology giant Apple, Inc.  You can now add “employee theft screening” to this list.  On November 7, the Honorable William Alsup of the United States District Court for the Northern District of California issued an order granting Apple’s Motion for Summary Judgment  as to each and every remaining claim brought against Apple by a class of approximately 12,400 former and current Apple employees employed in California.

The class action lawsuit came about as a result of Apple’s implementation and enforcement of its “Employee Package and Bag Searches” policy.  Growing concerns in 2009 with employee theft of its products from Apple’s retail stores led the company to institute the written policy, which imposed mandatory searches of employees’ bags, purses, backpacks or briefcase, whenever they left the store.  The searches were conducted across all 52 Apple retail stores in California.  The policy requires employees finishing their work shift to find a manager or member of the store’s security team to search their bags and packages before leaving the store.  Employees who fail to do so and simply leave the store at the end of their shift are subject to disciplinary action, up to and including termination.

According to the employees, the security checks were not quite as efficient as some of your favorite iPad applications.  Employees claimed managers and security guards were not always available to conduct the searches for various reasons, resulting in lengthy delays to begin and complete the search.  Although some employees claimed that bag searches in front of customers were “demoralizing,” it is highly unlikely this practice would have resulted in a lawsuit if Apple paid employees for the time it took to check their bags after the end of their shift.  However, as Judge Alsup’s decision explains, Apple’s “[e]mployee time-keeping systems were generally kept within the store, so employees had to clock out prior to undergoing a search, and their recorded hours worked did not account for the time waiting for a search to be completed.”

So that’s how 12,400 Apple employees working for 52 different Apple stores across the state of California came to sue their former and/or current employer.  The lawsuit included claims under both the Fair Labor Standards Act (“FLSA”), as well as various California wage and hour laws.  According to Bloomberg, a law professor familiar with the case estimated Apple could have been slapped with a $60 million tab for unpaid wages and penalties, had things gone the employees’ way.

Judge Alsup, however, ruled against the employees.  Most significantly, after the Apple employees initiated their lawsuit, the United States Supreme Court determined in the nearly identical matter of Integrity Staffing Solutions, Inc. v. Busk et al. that the time warehouse workers spent undergoing antitheft security screening after clocking out but before leaving the workplace each day is not compensable under the FLSA.  In its unanimous decision, the Justices reasoned that the required security screenings were not “closely related activities… ‘integral and indispensable’ to another principal activity the employees were employed to perform” and were therefore not compensable “principal” activities within the FLSA.  They explained that “an activity is integral and indispensable to the principal activities that an employee is employed to perform – and thus compensable under the FLSA – if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  Thus, although the screenings may have been in some way related to the work that the employees performed at the warehouse, time spent waiting for screenings was not compensable because “the employees could skip the screenings altogether without the safety or effectiveness of their principal activities being substantially impaired.”  The Court additionally made clear that its decision applies regardless of whether the security screening is only for the employer’s benefit.

The Integrity Staffing decision resulted in the immediate dismissal of the Apple plaintiffs’ FLSA claims, leaving only their California wage and hour claims.  To resolve the remaining state claims, Judge Alsup was required to consider whether under California law the employees were subject to the control of their employer during the time the searches were conducted.  Judge Alsup found the dispositive issue to be whether the employee could avoid the search by choosing not to bring to work a bag or other items that would subject the employee to the search rule.  After finding that “plaintiffs could all freely choose not to bring bags to work, thereby avoiding Apple’s restrictions during exit searches,” he concluded that this “free choice is fatal to their claims.”

So what are the takeaways from the Integrity Staffing and Apple decisions?  For one thing, “free choice” is never truly “free.”  For another, this is a win for employers who seek to implement antitheft post- and/or pre-shift security screening, even if the screening is entirely for the employer’s own benefit.  Employers are not required to compensate employees under the FLSA so long as the screening can be adequately differentiated from the principal activities for which the employee is hired to perform.  California employers must take the additional step of determining whether their employee can avoid subjecting himself or herself to the search by making a different decision.  While most other states outside of California will likely follow the FLSA, employers should screen their state and local laws to ensure compliance.

Dismissed employee in party fail cannot rely on leniency shown to colleague

And so off to Wrexham for the sort of day trip to the Employment Tribunal which every A-Level Law teacher just dreads.  Just remember, boys and girls, don’t try this at home.

MBNA Limited held a 20th anniversary event at Chester Racecourse in November 2013.  Staff were told that it was a work event and that they should behave appropriately.  Among the revelling masses at the event were Mr Jones (the Claimant) and a Mr Battersby, both MBNA employees, and Mr Battersby’s sister.  Perhaps misunderstanding the message behind the injunction to behave appropriately, both Battersby and the Claimant had started drinking some hours (in Battersby’s case, many hours) before the event kicked off, a phrase I use advisedly.  Picking up from the Tribunal’s judgment:  “there was some form of incident between them early during the event: Mr Battersby kneeing the Claimant in the back of his leg; the Claimant licking Mr Battersby’s face… later in the evening the Claimant had his arms around Mr Battersby’s sister.  Mr Battersby came over.  He kneed the Claimant in his leg again.  The Claimant punched Mr Battersby in the face .… Mr Battersby waited outside.  He texted the Claimant 7 times in all, threatening to “rip your f*****g b*****d head off”.  Both are assets at any dinner party, clearly.

Disciplinary proceedings were started against both men.  The disciplining manager considered that the Claimant had been guilty of actual violence while Battersby had merely threatened it, and that the threats had in any case been an immediate and so partially understandable response to the punch.  The repeated kneeing of the Claimant and his then licking Mr Battersby’s face had been essentially conversational in nature, he found.  Battersby was given a final written warning and the Claimant was sacked summarily.  The MBNA appeal manager would have wished to dismiss both but was hamstrung by the decision already taken on Battersby, so contented himself with upholding the Claimant’s exit.

In Tribunal Mr Jones’ unfair dismissal claim succeeded, but only because of the discrepancy in treatment between Battersby and himself.  The Judge in Wrexham made it clear that if Battersby had been dismissed also, the Claimant would have lost.  MBNA appealed – could the otherwise clearly fair dismissal of the Claimant be found unfair just because someone else had been treated differently?

The Employment Appeal Tribunal considered the law in relation to consistent treatment – one of those things you know you should look out for in party-cases of this sort – and gave some useful guidance for employers:

(i)         The main question in determining fairness is the statutory test in section 98(4) Employment Rights Act – was it reasonable in the circumstances for the employer to treat the reason it relied upon as sufficient basis for dismissing the employee?  Almost everything else is just noise.

(ii)        “If it is reasonable for the employer to dismiss the employee whose case the ET is considering, the mere fact that the employer was unduly lenient to another employee is neither here nor there”, said the EAT.

(iii)       There are three sets of circumstances where inequitable treatment can raise a question mark over fairness: (a) where the treatment of one employee leads another to believe that a certain act or course of conduct will not lead to his dismissal but then it does; or (b) where evidence of treatment in other cases suggests that the purported reason stated by the employer is not the real one; or (c) as here, where evidence of decisions in “truly parallel circumstances” may support an argument that it was not reasonable to dismiss in the circumstances.

(iv)       however, truly parallel means truly parallel, in that small distinctions can easily be relied on to tip the balance – an expression of contrition by one employee and not the other, for example, or relative inexperience or some element of provocation, as here.  The EAT did not agree with the Employment Judge that the facts for Jones and Battersby had been so similar, essentially for the reasons used by the dismissing manager in the first place.  Given that conclusion, none of the three circumstances in (iii) above were applicable, and hence the fairness of Jones’ dismissal could not be tainted by the different approach taken to Battersby.

(v)        Findings of fact made by the employer (here, as to some degree of provocation, the faintly dubious “immediacy” of Battersby’s response, etc.) should not be re-opened by the Employment Tribunal – that would be an impermissible substitution of the Judge’s view for that of the employer and could not stand.

(vi)       So if you want to treat employees differently in disciplinary terms, then for the most part you can safely do that.  The more “truly parallel” their circumstances the greater the burden to evidence why, but that hurdle is perhaps lower now than had previously been thought.

Lawrence of Arabia makes surprise contribution to UK holiday pay debate

There is a line in, I think, Lawrence of Arabia where a terrified young soldier trapped under fire with a small group of his colleagues asks Peter O’Toole as Lawrence what they  are going to do.  “Nothing”, drawls O’Toole languidly, “After all, it’s generally best”.

And so by a tenuous little link to the question of amending your holiday pay calculations to reflect the new jurisprudence around including an allowance for overtime and/or commission.  Have you been sitting in your office wondering why no one seems able to tell you exactly what you need to do?  Have you been approached for a deal by your union on the basis that everyone else has sorted it out and only your company still has its head over the parapet?

You are not as alone as you may feel.  Our Labour & Employment Team has commissioned a survey of over 1,000 companies of a wide variety of sizes, sectors and employee representation structures.  The answers are just in and provide a number of interesting statistics:-

  • Of all our respondents, a full 73% have yet to take any steps to amend their holiday pay calculations. Those union claims may perhaps be taken with a pinch of salt.
  • Of the 27% who have changed their holiday pay arrangements, only a small majority (less than 60%) have unionised workforces.
  • Where changes to holiday pay include use of a reference period, the period invariably picked has been twelve weeks. That is even though that period has yet to be enshrined in law and even though those responses came from sectors as diverse as construction, aviation, retail and banking.  Employee numbers in those businesses ranged from less than 100 to over 45,000.  It therefore appears that for all the uncertainties and injustices both ways which such a reference period can generate (and despite the enormous spread of overtime and commission schemes in use over that population) twelve weeks will likely be the default position for voluntary holiday pay agreements.
  • Where our respondents have reached agreements with their workforces about alterations to holiday pay calculations, these have all been forward-looking. None of our respondents refer to any accommodation being reached in relation to any notional arrears.
  • The principal factors leading to changes in those 27% of employers were (i) awareness of the case law (i.e. the perceived inevitability of having to do something at some stage) followed by (ii) union/employee pressure (though of the 73% who had made no change, only one admitted to receipt of a Tribunal claim), and (iii) brand/reputational factors.
  • Where changes have been made, half had applied them to the full UK 5.6 week holiday entitlement. About a quarter of respondents had limited the changes to the Working Time Directive four week minimum and a further quarter did not specify which.
  • Of those cases where changes had not been made, nearly 85% of employers had also taken no steps to amend their commission/overtime structures to minimise the scope for employee claims.

So in other words, whether or not it is generally best, doing nothing does seem thus far to be the principal employer response to the holiday pay question.  There are good objective reasons to support such a stance at this point, including in particular the absence of Government guidance, the uncertain direction (in matters of detail, at any rate) of the case law, and the relatively limited number of unions willing to undertake the colossal logistical exercise of collective Tribunal claims.  There is no reason to expect much change in the first two factors in the near future, but whether that last point will remain valid if employer indifference persists at such a high rate is an open question.

When elevenses go bad – fighting workplace stress through coffee and cake

Today is National Stress Awareness Day in the United Kingdom.  This is not to be confused with National Stress Awareness Day in the United States (16th April), or indeed National Stress Awareness Month (also in the US and also April).  Quite why April is more stressful in the US and November is more stressful in the UK is unclear, but we can only hope for an eventual treaty confirming a “Global Stress Awareness Day” to ease the confusion felt by concerned citizens everywhere.

Joking aside, stress is a serious issue.  The overworked adage is that “pressure is good for you, stress is bad for you“.  But where does pressure stop and stress begin?  More importantly, in a workplace context, what might be viewed as gentle pressure in the mind of a line-manager could well be viewed as a stressful experience by an employee.  Indeed, it seems trite to say that too much pressure can itself be stressful.

So how can employees cope with pressure and reduce their stress?

The most common, and very sensible advice, is along the following lines:

  • eat a healthy diet – a full nourished body is better prepared to cope with stress;
  • reduce caffeine and sugar – although these produce a temporary high, they often result in a crash in mood and energy;
  • avoid alcohol, cigarettes and drugs;
  • get enough sleep.

As you read this list, take a look around your own working environment. Taking my own office floor as an example:

  • healthy meals are theoretically available from our canteen, but somehow the moment never seems quite right;
  • tea, coffee, pastries and sweets are often liberally supplied (birthdays, holidays, Mondays, Fridays etc.);
  • alcohol and cigarettes are not uncommon; and
  • few of us ever seem to get enough sleep, due to demands of work or alternatively small children.

With this in mind, it’s no wonder that the average workplace is a common breeding ground for stress and not great at reducing it either.

What are the alternatives?

As much as we would all like to persuade our bosses that it would be much better for our health, and so productivity, if we worked from a beach in Bali, this is not practicable or realistic.

You can however:

  • relax your body – this could be through exercise: not just being gym-conscious or body-beautiful, but simply walking into a colleague’s room when you need to speak to them rather than phoning or emailing them or taking the stairs rather than the lift. Alternatively, you could just take a moment to inhale and exhale a few deep breaths, perhaps with your eyes closed, to just calm the heartbeat and relax your muscles.
  • eat as well as possible – most office canteens now offer salads, soups and other healthy options and, with the proliferation of healthy-eating fast food outlets, there is less and less excuse for the grease-burger and chips at your desk (as tempting as it might be on occasion), or for that lunch-time beer.
  • listen to your body and your mind – if you feel tired, anxious or tense, this is probably a sign that you need to try and relax yourself in some way. For example, use those moments on the Underground to read something other than a work email, or find a moment in the office to discuss something funny with one of your colleagues – after all, laughter is the best medicine, so they say, and save where actively hysterical, a great defuser of stress.
  • finally, if you do find yourself stressed, talk to one of your colleagues or friends – a problem shared is a problem halved. In addition, if one of your colleagues is causing you stress, don’t leave the issue to build up, but address it head on. Talk to them in a calm and reasonable manner and look for non-homicidal solutions that will help reduce that stress.

Can your colleagues help you?

Some might say that we are all stressed enough already and have our own issues to deal with. However, it is often possible to see when a co-worker is starting to feel stressed – they might be irritable, look tired, have bags under their eyes, have difficulty making decisions, start to drink or smoke more, or seem to have lost their enjoyment in life. If this happens, talk to them. Ask them if there is anything you can do to help.

So what should we take away from today?

Other than the fact that there are now so many ‘awareness days’ that a website has been created to specifically keep track of them ( – a particular favourite is 24 January 2016, Global Belly Laugh Day), it is that stress comes in many shapes and sizes. What is normal pressure or not even an issue to one person can be damagingly stressful to another. In the workplace, we therefore need not just to look after our own health and resilience but also to keep an eye out for our colleagues.



Speak now, don’t forever hold your peace – getting the best out of National Stress Day

Today is National Stress Awareness Day, though another long and difficult journey on Thameslink this morning means that actually I am quite stress–aware enough already, thank you for asking.

This is not another of those pieces about the business case for countering sources of stress in your workplace.  That is too obvious to bear repetition.  Nor is it one of those posts about the importance of taking time out of your hectic working day for a little me-time sitting cross-legged in your socks with a blissful smile and eyes closed serenely against the baleful stares and increasing agitation of your colleagues.

This is instead a reiteration of advice touched upon a number of times in the past in these pages – the importance of simply asking your subordinates and colleagues from time to time “How are you?

Courtesy dictates, and all that, but in the end most exchanges of this sort are perfunctory at best – the manager is not really interested and the employee knows it – but nonetheless they are still just about enough to grease the wheels of the working day and let everyone get back to their desks with no harm done.  Equally, however, with nothing positive really achieved either.  Both parties can take some blame for this, but perhaps mostly the stressed employee who does not take advantage of that manager’s brief and even perhaps unintentional opening of the door to a proper conversation.

The traditional problem with asking your colleagues how they are doing is of course that they might tell you, but actually the bigger issue where stress is concerned is that they might not.  Unlike a physical or serious mental health condition, the manager may simply not see signs of anything going materially wrong, or at least not until too late to prevent it.  In many workplaces there are degrees of pressure from time to time which could easily explain someone appearing a little flustered or distracted without that signifying any cause for managerial concern at all.  The Equality and Human Rights Commission Code of Practice tries gamely to compensate for the lack of any statutory direction as to when the employer should make enquiries of employees who appear to be suffering at work.  It gives the example of an employee in a telephone call-centre who is seen sitting staring out of the window in tears.  I mean, we’ve all been there, but is that enough to put the employer on notice of a problem?  On those simple facts, yes, says the Code, even though there is every possibility that on its enquiry, the employee may blame a domestic issue, the brutal dashing of her hopes no longer to be working in a telephone call-centre, or something, anything, else which doesn’t involve admitting that she is stressed to breaking-point.

A reluctance to admit to suffering from stress is very understandable.  You may fear that others won’t care or that they will see you as not up to the job or, at best, that it just won’t make any difference.  You might be right. But you might not be, and it may turn out instead that your employer is indeed willing to have a proper discussion with you about short or longer-term adjustments to your role or working conditions.  Legally, medically and professionally, it pays no-one to work on under intolerably stressful conditions.  If you try to be the brave soldier for too long, no good can come of it for either you or your employer as this case showed earlier this year.

And as the employer, why get yourself tied up in exactly how far an employee has to come visibly unravelled before you are under a duty to ask how he is?  Why not just take the risk and ask him anyway?  Even the mere gesture of your doing so may mean something and you might well find that you have done your stressed employee a great service by showing him that there is a listening ear when he most needs it.

One small step for man in UK Tribunal fee debate – but was it worth going there at all?

Cast your mind back to a time before July 2013 when the perception was that businesses were regularly on the receiving end of Employment Tribunal claims from disgruntled employees and ex-employees.

Times were good for lawyers and bad for employers, one might have said.  So sensing a win-win-win (bash lawyers, limit spurious claims against political allies – sorry, that should read employers – and cut the cost of running the Tribunal service), the Government seized the opportunity to introduce a system of fees for Tribunal claims.  In an endeavour to make this slightly less overt a political device than it really was, that system came with a fee remission mechanism for those in significant financial hardship.  In a less worthy endeavour to prevent that mechanism undermining the point of the changes in the first place, however, it was set at a very low level and made off-puttingly complicated to use.

It came as little surprise, therefore, that the introduction of the fees saw Tribunal case volumes fall off a very steep cliff.  Back in March 2014, we reported on a drop in claims which at that time was estimated at close to 79%. (    It was immediately apparent from the size of that drop that the fees had done more than weed out spurious claims.  That objective was never going to be achieved by fees alone unless you assumed that the majority of spurious claims were made by the needier members of society, a suggestion so loaded that even more rabid Conservatives were not prepared to make it in public.  What had been weeded out were the smaller claims and those of ex-employees unable to stomach either the investment of the fee or the complexities of the remission system.  It was clearly justice not being done or being seen to be done.

The trade union UNISON sought judicial review of the fees regime and the latest round of that case has now been rejected by the Court of Appeal.  Despite rejecting the application, however, Underhill LJ passed pointed comment in the Judgment that:

“The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by Claimants being realistically unable to afford to bring proceedings, the level of fees and/or the remission criteria will need to be revisited”   

Most recently there has been formal recognition of the problem in the form of the Ministry of Justice undertaking a review of the fees regime.  As part of that process, a submission has been prepared by the President and the Regional Employment Judges themselves.   The points to note are that:

  1. the Judges consider that the imposition of fees has had an adverse effect upon access to justice and acts as a clear disincentive to bringing claims;
  2. the income produced by the fees does not cover the target proportion of the running costs of the Tribunal system that the Government set itself;
  3. around 60% of potential claimants who entered early conciliation neither settled their claim through Acas nor then brought a Tribunal claim, which might demonstrate the size of the mismatch between those who feel aggrieved enough to go through conciliation and those who are able to pursue it any further;
  4. the remission requirements are fixed at too low a level to be effective;
  5. the Judges make a number of recommendations, including:
    1. A reclassification and recalibration of the issue and hearing fees (although they stop short of suggesting what that might be). The obvious problem for the Government is that a drop in the fees big enough to prevent their acting as a disincentive to claims would (a) prevent their acting as a disincentive to claims; and (b) torpedo amidships the financial case for having them at all. On the other hand, a small drop might alleviate some of the political and judicial heat but wouldn’t actually make the necessary difference and would cost a small fortune to implement.
    2. Controversially (as recognised by the Judges) – a suggestion of charging for each application made to the Tribunal during the conduct of the proceedings. The idea behind this is to encourage the parties to prepare for final hearing under their own steam, the only caveat to this being scope for not charging a party where the application is due to an act or omission by the other side. I would question whether this will result in money being made or saved by the Tribunal or rather end up in further costs incurred by dealing with arguments over whose fault it was that the application had to be made in the first place. I would also query to whose benefit this would be, bearing in mind the number of unrepresented individuals bringing claims who (even acting entirely in good faith) can often fail to understand their obligations when complying with Tribunal Orders.
    3. Perhaps even more controversially – a suggestion that Respondents should be made to pay Response and Hearing fees, the idea being of course that parties should be encouraged to settle and that because both parties are incurring the cost of the Tribunal system, both parties should contribute to it. This seems somewhat harsh when one considers that a Respondent employer is not “enjoying” the benefits of the Tribunal system and is merely responding to a claim that it did not want and which the employee may well go on to lose. The Tribunal suggests that this fee should be automatically repayable as part of any award but this does not give any consideration to how difficult it can be for employers to recover tiny sums of money through a civil process where the losing Claimant does not pay.

Most recently, starting last week, steps have finally been taken to reduce the deterrent effect of the remission scheme.  A new form “Help with Fees” has been introduced.  This is generic to both Courts and Tribunals (not limited to the ET).  It asks applicants to self-assess their eligibility for a fee remission and no longer requires them to submit supporting evidence like payslips and bank statements.  It gives up-front guidance to wannabe claimants that savings over £16,000 or a net monthly income over about £1,245 will limit or prevent access to any fee remission.   The Tribunal Service will now check direct with the Department of Work and Pensions to see if the remission claimant is on the relevant state benefits and not rely on the claimant to prove it.

This does make the Tribunal fee remission system much more accessible.  On the other hand, it will also (if successful in lifting the deterrent element) greatly increase the cost to the Service of running it in the first place.  Hang on, lads, I’ve got an idea…..

No race discrimination in employer not investigating dishonest grievance

A finding of race discrimination in the UK requires the employee to show both (a) that he was less favourably treated on grounds of race; and (b) that he suffered a detriment.  The need to establish (b) separately is often overlooked, in that less favourable treatment is, by itself, pretty invariably a detriment.  However, the Employment Appeal Tribunal in Cordant Security -v- Singh has this week ruled on whether less favourable treatment is necessarily also a detriment.

You may think that this sounds all a bit academic, but in fact the case contains some useful pointers for employers in grievance and disciplinary matters, so read on.

In broad terms, the facts were these: Mr Singh’s supervisor (who was, and indeed still is, white) made an allegation that Mr Singh smelt of alcohol at work and so was guilty of serious misconduct.  Singh in turn made allegations that the supervisor had made racist remarks towards him.  The complaint against Singh was investigated, but no disciplinary action was ultimately taken.  The complaint by Singh was broadly ignored.  Cordant was unable to show a credible alternative reason for the difference in approach, and therefore the Employment Tribunal found that this was less favourable treatment on grounds of race, and hence discrimination.  However, it also found as a fact that while the supervisor genuinely (though wrongly) believed that Singh had been drunk at work, Singh’s reciprocal allegations of racial abuse against the supervisor were wholly invented.

As a result, the Tribunal concluded that Singh could not reasonably claim any compensation for that discrimination.  If his allegation had been investigated, it would have been found to be untrue.  Moreover, it was hard to credit him with any legitimate injury to feelings arising from Cordant’s failure to investigate what he knew to be an entirely spurious complaint.  Nonetheless, while Cordant had no compensation award made against it, it did come out of the proceedings saddled with a declaration that it was guilty of unlawful race discrimination.

Cordant appealed, primarily on the question of whether Singh had in fact been subjected to a detriment as required for a finding of discrimination.  The EAT took little time to deal with the matter.  Even though Cordant had not been able to show why it had treated the two complaints so differently, Singh had suffered no detriment – neither any financial loss nor any credible injury to feelings -from that less favourable treatment.  Therefore, the declaration of discrimination against Cordant was set aside.

Lessons for employers

This sounds like a big plus – no discrimination in a failure to investigate an untrue grievance.  But do be careful, since it is necessary to bear in mind the wide range of circumstances in which complaints can be made.  These may turn out to be unsubstantiated even though they are genuinely believed in.  Alternatively, complaints may be partially true or exaggerated out of anxiety without any dishonest or malicious intention.  And at the Singh end of the spectrum, a grievance could be entirely and deliberately fabricated.

So Cordant was, in a sense, lucky – if Singh’s allegation had later turned out to be true in whole or any part, however small, or if it had been found to be completely untrue but the product of a genuine misunderstanding on his part (none of which Cordant knew, since of course it had not investigated the thing in the first place), the outcome would have been very different.  This case is absolutely not a licence to ignore bits of complaints which you believe, or even know, to be false.   There are always certain conclusions an employer can jump to when an allegation of discrimination first surfaces immediately after a disciplinary charge but acting on those assumptions by ignoring the complaint altogether could itself be found discriminatory very easily.

Cordant also reminds employers to make sure that complaints do not drop between the cracks.  Singh’s manager told him to make the allegations the subject of a formal grievance if he wanted them looked at (even though he already had), but none of the other Cordant management who knew of the complaint did anything about it at all, seemingly as the product of inertia rather than any conscious decision.  It was that which created the vacuum in Cordant’s reasoning which the Tribunal filled with race.  Someone in management or HR needs to keep an eye on complaints of this sort and make sure that they are progressed at a reasonable rate or, if ignored, that there is a conscious reason why.

Second Circuit “Likes” NLRB Decision on Facebook Activity

On October 21, 2015, the US Court of Appeals for the Second Circuit upheld the National Labor Relations Board’s (NLRB) ruling that a Facebook “like” can be protected concerted activity under the National Labor Relations Act (NLRA)—this underlying NLRB decision was reviewed in detail in our previous post regarding Triple Play v. Sazone and Triple Play v. Spinella.

In short, the recent judicial endorsement of the NLRB decision reinforces that not only written social media activity can be protected, a simple Facebook “like” may be as well—in this particular case, the protected act was the “liking” of a negative post related to employer tax withholdings and the alleged failure to pay a former employee’s wages.  Because the post/conversation at issue was work-related, an employee’s support/“like” of the post was found to be protected.  The Court did note that there are limits to the NLRA’s protections, including instances in which a post or comment is both defamatory and maliciously untrue—no doubt we will be seeing cases delving into this issue in the coming years.

In the meantime, an employer should think twice before terminating an employee for a Jerry Maguire-worthy post decrying the conditions of the workplace—or “liking” something similar.