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Employment Law Worldview

Attention, please – drooling Employment Tribunal member not a “material irregularity”

Posted in Recent Cases

Do you ever feel that you do not have your audience’s undivided attention?  Perhaps it is the body language which gives it away, the distracted glances at the clock, a stifled yawn or the not quite sufficiently surreptitious cleaning of the finger nails.  But surely no one has a right to the exclusive focus of the person they are talking to, regardless of the dreariness, irrelevance, inaccuracy or sheer interminable length of what they are saying?   

Yes and no, said the UK’s Employment Appeal Tribunal recently.  It was considering the appeal of a Mrs Elys against an Employment Tribunal decision in her claim against Marks & Spencer.  The grounds for her appeal were that one of the Tribunal panel members had been asleep through parts of the evidence and/or staring out of the window with his back to her.  While the member had continued to hold his pen, said Mrs Elys, it had stopped moving, and so had he.  Was this a material procedural irregularity such as to amount to grounds for requiring the case to be reheard?   

Much of the EAT’s reasoning dealt with the technical issue of whether a Tribunal could be allowed to form a binding view as to the materiality of its own failings (no), plus the very fact-specific medical issue of why the panel member might have been or appeared to be asleep.  He suffered from an eye complaint which led him to close his eyes for comfort from time to time but without his concentration actually wavering, said the EAT, and this explained most of the periods of apparent inattention.  Looked at afterwards, the member’s notes were reasonably comprehensive and continuous, so Mrs Elys’ views on the movement of his pen were clearly mistaken.  In any case (though the EAT did not say this), most Tribunal advocates recognise a pause in note-taking by the panel as evidence that they have strayed into areas in which it is just not interested, and will take that as a tip to move on.  The EAT also found that the member had moved his chair towards the window to escape the air conditioning, not to blank Mrs Elys.   

However, there was a brief period when the wing-member was indeed genuinely incapacitated during the hearing as a result of mixing up his pills for certain other medical conditions he suffered.  He began to drool and had to be nudged back to alertness by the Employment Judge.  While clearly more than a little off-putting for Mrs Elys, who was in full flow at the time, was this a material procedural irregularity?   

Mrs Elys argued that any inattention by the Tribunal, almost however momentary, was a material defect.  Justice must not only be done but be seen to be done, etc.  Up to a point the EAT agreed – a litigant is entitled to the full attention of the Court all the time, it said, with a degree of concentration at least as great as that required while driving.  There was discussion as to the possibility that like “many a schoolchild and perhaps a number of junior counsel” (M&S was using a QC) the member “had learned over the years the knee-jerk reaction of appearing to turn to the correct page though having a snooze”.  It was also made clear by the EAT that a professional representative, seeing signs that an ET member may now be with them only in body, should “drop a book, make a noise [like what? – the mind boggles] or do something to cause the member to waken”.   

However, when the other eye-closing incidents and the seeming back-turning were taken out of account, the actual inattention was a matter of some twenty seconds at most.  This was in the context of Mrs Elys’ cross-examination of nineteen witnesses over three weeks (though the member very sensibly did not argue this as mitigation).  In the circumstances, although the incident was regrettable, it was mercifully not regarded as material.

Twitter sinks teeth into dentist over cancer dismissal

Posted in Discrimination, Duty to make reasonable adjustments, Unfair Dismissal

The latest Employment nightmare doing the rounds on Twitter courtesy of the Huffington Post is what can only be described as a gob-smackingly insensitive letter from one Dr V., an “oral surgeon” from Pennsylvania.

On being informed by one of his employees of 12 years’ loyal service that she had been diagnosed with cancer of the pancreas, liver and ovaries, he did what any self-respecting medical professional would do, i.e. assessed the impact of this news on himself and fired her.

Then to add insult to injury, he set out his reasoning in a letter which was duly photographed and is now forever enshrined on the internet.  The letter starts promisingly: “You are currently engaged in a battle against cancer that will be demanding physically, mentally and emotionally” – so far so sympathetic. “The symptoms of the disease, the pain medications you will need and the side effects of the chemotherapy will be significant and distracting….  You will not be able to function in my office at the level required because you will be battling for your life” it continues reassuringly, ending the paragraph with “Because of this, I am laying you off without pay as of August 11, 2014.“

In a clearly doomed attempt to lighten the mood, Dr V. then concludes the letter by informing the no doubt now distraught employee that “Our thoughts and prayers are with you as you fight this horrible disease. Thanks for your time at V. Oral Surgery. I hope your battle is swift, smooth and successful.“  Nice.  You wonder faintly if he went for flowers or just a leaving card.

Laying aside the sheer clunkiness of the letter, I certainly won’t be advising my clients to take a leaf from the Dr V. Big Book of Employment Relations.  Under the UK Equality Act 2010, employees with cancer are automatically classed as disabled and therefore have a full range of protections including the right not to be subjected to direct or indirect discrimination, the right to have reasonable adjustments made to accommodate their disability, and also the ability to bring a claim that they have been subjected to a discriminatory dismissal.   It is hard to see a basis upon which a UK Employment Tribunal would ever find such a knee-jerk dismissal to be fair or non-discriminatory, or that the Dr V. had complied with his duty to consider or make reasonable adjustments. I certainly would not want to be defending Dr V., given the roasting that both client and advocate would likely get from a no-doubt highly unimpressed Employment Judge.

That’s not to say that an employer of an employee suffering from cancer could never get to the point of fairly dismissing him.  In fairness to Dr V., it is certainly possible that his employee’s illness and/or the side-effects of her treatment could in time make it harder or impossible for her to do her job effectively.  That could, also in time, make a dismissal legally (morally is a tougher question) justifiable.  However, before any such decision was taken, the employer would be expected to have obtained an up- to-date medical opinion as to the employee’s prognosis, and have consulted with him about the situation, the stage of the disease, intended treatment and timescales, prognosis, likely limitations on working hours and capabilities, etc.  It is evidence of that consultation which we would hope to see in writing, not a glaring example of dentopedology, that little-known branch of dentistry defined by HRH Prince Philip as “the science of opening your mouth and then putting your foot in it”.  The employer would also need to make sure that dismissing the employee would not deprive him of the ability to apply for benefits under any permanent health insurance scheme, as to do so could lead to a very costly breach of contract claim.

Even if all of those boxes were ticked, however, it doesn’t take an experienced Employment lawyer to realise that at no point will it ever (I repeat, ever) be sensible (or indeed decent) to write this kind of letter.

Paid Sick Leave Comes to California Next Year….Get Your Polices Ready Now

Posted in Employment Policies, Health & Wellbeing, Legislation, Sickness

California Governor Brown signed the Healthy Workplaces, Healthy Families Act of 2014 (the “Act”) which will provide qualifying California employees with paid sick leave beginning July 1, 2015. Modeled on a Connecticut law and the San Francisco Paid Sick Leave ordinance, this Act will generally provide employees who work at least 30 days per year in California with one hour of paid sick leave for every 30 hours worked. This will be a dramatic change for many employers who have not extended paid sick leave benefits to part time or temporary employees.

The accrual begins at hire or July 1, 2015, whichever is later. Employees become eligible to use their accrued sick hours after 90 days.

The sick time may be used:

  1. for diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
  2. in the event an employee who is a victim of domestic violence, sexual assault, or stalking needs time off to seek medical attention, to obtain services from a domestic violence program or psychological counseling, or to participate in safety planning and/or to obtain relief in court such as a restraining order or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child

“Family member” includes the employee’s children (biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis) regardless of age or dependency status; parents (biological, adoptive, or foster parents, stepparents, or legal guardians of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child); spouse; registered domestic partner; grandparents; grandchildren; and siblings.

Employees may request to use sick time orally or in writing. Employers may require employees use a minimum amount of paid sick leave per request but that minimum increment shall not be greater than 2 hours. Paid sick days will carry over from year to year but may be subject to a 48-hour or 6-day accrual cap. Employers may also limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. Alternatively, employers may “front load” paid sick leave annually in at least the statutory amount (3 days or 24 hours) provided the other requirements of the law are satisfied.

As is currently the case, accumulated sick leave need not be paid out upon termination. However, employees who terminate and are rehired within one year will be entitled to have their former accrued balance restored and available for immediate use. Employers may also advance or “lend” paid sick days to an employee in advance of accrual at their discretion.

The Act permits employers to use their existing paid time off, vacation and sick leave policies in lieu of creating separate sick leave entitlements to comply with this law but they must offer at least the same amount of paid leave and allow it to be used for the same purposes and under the same conditions. In short, employers seeking to use existing policies will need to review them closely to confirm that they will comply with the Act.

Other noteworthy requirements of the Act include:

  • Available paid sick leave balances must be reported on paystubs or in a separate writing provided on the designated pay date with the employee’s pay
  • There will be a workplace poster issued by the Labor Commissioner prior to the effective date of the Act
  • There will be an updated Labor Code 2810.5 wage notice that specifically references the paid sick leave entitlement
  • The rate of pay for the leave is the employee’s hourly wage but it is a blended rate for those employees with multiple rates of pay (calculated by dividing the employee’s wages for the prior 90 days by the hours worked during that period); exempt employees’ pay rate for paid sick leave is based on a 40 hour workweek.
  • There is no mandatory amount of notice employees must provide prior to using their leave but they should give “reasonable advance notice” when leave is foreseeable
  • Employers may not require an employee to obtain coverage or a replacement for his/her absence prior to approving use of the sick leave
  • Records demonstrating compliance with the Act (employees’ accrual and use of paid sick leave) must be retained for at least three years

Failure to comply with this law or an employer’s denial of the right to use accrued sick leave, adverse action resulting from use or attempted use of the sick leave and/or discrimination or retaliation related to use of sick leave or any policy/practice prohibited by the Act may result in employee complaints to the Labor Commissioner for penalties, fines, liquidated damages of up to $4,000, attorneys’ fees costs and interest. The Act also empowers the Labor Commissioner and/or Attorney General to take action, including filing a civil lawsuit in court, to enforce compliance with the Act which opens the door to additional Private Attorney General Act complaints seeking to pursue legal or equitable relief on a representative basis for all potentially aggrieved current and former employees including reinstatement, back pay, the payment of sick days unlawfully withheld, and reasonable attorney’s fees and costs as well as interest.

There are some narrow exclusions from the Act. The employees not covered by this law are:

  • those who are covered by a collective bargaining agreement that “expressly provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days for those employees, final and binding arbitration of disputes concerning the application of its paid sick days provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.”
  • those in the construction industry who are covered by a collective bargaining agreement that “expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement either (A) was entered into before January 1, 2015, or (B) expressly waives the requirements of this article in clear and unambiguous terms.
  • Certain in-home caregivers
  • Flight deck or cabin crew employees of air carriers who are covered by the federal Railway Labor Act provided the employees are provided compensated time off at least equal to one hour of paid time off for every 30 hours worked.

One silver lining in the Act comes in the form of an affirmative defense to the imposition of penalties. The Act says that if an employer makes an “unintentional” and “isolated” payroll error or written notice error that is clerical or inadvertent, no penalty or liquidated damages shall be assessed. In addition, any factfinder reviewing that employer’s compliance with the Act may consider the employer’s adopted policies, procedures and practices compliant with the law as a relevant factor that may mitigate possible penalties as well.

Squire Patton Boggs will be monitoring this new law closely in the coming months and will alert you to the publication of the poster, updated wage notice and any further guidance from the Labor Commissioner as they are available. Please feel free to reach out to your SPB counsel should you like assistance with updating your policies before next summer.

Landmark High Court decision! Implied term of mutual trust and confidence rejected in Australia

Posted in Employment Contracts, Recent Cases

What’s the verdict?

Australian employers awaiting the High Court decision on CBA v Barker [2014] HCA 32 have not been disappointed.  Yes, employers can finally breathe a sigh of relief, with the High Court effectively overturning the decision of the Full Court of the Federal Court on this issue. The High Court has determined that there is NO term of mutual trust and confidence implied into Australian employment contracts at common law. 

Why was the Full Court’s decision overturned?

The High Court found that implying such a term went beyond the legitimate law-making functions of the Australian courts and, given the complex policy considerations involved, it was more appropriate for the Australian legislature to assume that responsibility. 

While the Full Court’s decision had relied heavily on the UK decision of the House of Lords in Malik and the well-established implied term of trust and confidence it referred to, the High Court was not impressed with this approach, finding that the history of the development of the term in the UK was not applicable to Australia.  The Court advised that to find such a term to exist, regard must first be had to the principles governing implied terms in that class of contract, which include considering whether the implication of the term is necessary. 

In doing so, the Court considered whether the implication of the term was ‘necessary’, in the sense of being implicitly required by the nature of the contract or of the contractual relationship being rendered futile without it.  It also considered in a broader context whether it was ‘necessary’ to justify a decision which would significantly impact on employment relationships and employment law in Australia.  

The Court noted that the implication of such a mutual term would impose obligations on employees as well as employers and the mutual aspect of the obligation could not simply be characterised as a restatement of an employee’s existing duty of fidelity. Implementing such a duty would go beyond the material conditions of employment. The implied duty of trust and confidence in Malik was said to be directed towards the employment relationship, which is dependent on social conditions and desirable social policy, rather than the performance of the actual employment contract.

What does this mean for employers?

While the existence of an implied term of mutual trust and confidence in Australia has finally been laid to rest, the High Court said this conclusion should not be taken to mean that there is no general obligation to act in good faith in the performance of contracts.  The High Court also referred on occasion to the implied duty to co-operate, which requires a party to do all things necessary to enable the other party to have the benefit of the contract.  Accordingly, while this is superficially good news for employers in that it reduces the notional obligations upon them, they should nonetheless still ensure they are seen to act co-operatively and in good faith in their performance of employment contracts to minimise any employee claims.  It remains to be seen where the boundaries lie between good faith and co-operation on the one hand and trust and confidence on the other, and so we do not yet know what previous obligations of either party by way of trust and confidence will now be treated as falling away.  In practical terms there may well be little in it.

Antenatal guidance for men leaves UK employers unmoved

Posted in Equal treatment, Health & Wellbeing, Legislation

The right for women to take time off work for antenatal appointments has been around for decades.  In all that time, so far as I can tell, no one has felt it necessary to issue any clarification on how that right is exercised.  From 1st October this year, however, fathers and other partners gain limited rights to go to antenatal appointments too, and the Department for Business Innovation & Skills has leapt into the breach with four well-spaced pages of Q&A Guidance for employers https://www.gov.uk/search?q=Antenatal+appointments.   

Perhaps this is a genuine attempt to clarify real questions, or maybe it is just a cosmetic parasol against the Niagara of incomprehension and frustration which will accompany most employers’ first attempts to get to grips with the new shared parenting regime when it arrives in earnest in April next year.  Either way, it is sadly not terribly good.   

First, it poses questions which surely no one ever asked, such as the rights of a man who is simultaneously expecting with two different women.  What is his position?  Well, tenuous, obviously, especially if they have yet to learn of each other.  Oh, and he does have the right to accompany each woman to the standard two antenatal appointments of up to 6.5 hours each. Separately, who gets the right to go to the antenatal session with the woman if the husband and the father are different people?  Disconcertingly, both do, though as the Guidance says primly, “Where such circumstances arise the woman is unlikely to want both to accompany her”.  You think?   

Second, it is confused.  The partner’s employer cannot insist on seeing a copy of the appointment letter, since that belongs to the expectant mother.  This leaves unaddressed the question of why she would refuse to provide a copy to someone she intends to accompany her to the appointment.  Instead, the employer can require a written declaration from the partner stating his or her relationship to the mother and that the purpose of the time off is to attend the antenatal appointment with her (page 3).  Page 4 also refers repeatedly to the partner attending the appointment, but then page 5 asks possibly the most facile question of any statutory guidance I can recall – “Does this mean a father has a right to attend ante-natal appointments?” – and answers it no.  This is a right to accompany the woman carrying the child to the appointment, it continues, but not actually to attend it.  This is clearly inconsistent with the numerous earlier references to the employee being in attendance and indeed to his having to make a written declaration to that express effect (though this is itself contradicted earlier on page 5).  

Unfortunately we are left not much the wiser for this Guidance.  Bearing in mind that it is primarily written for businesses without dedicated HR teams or external legal support, we could legitimately have hoped for something which is at least internally consistent from one page to the next, and which answers questions that employers may actually have – what if the timing of the appointment means that the employee’s absence at that point will unduly harm my business?  Most pregnant women attend about ten antenatal appointments – can I decide which two the partner will go to?  Given that the time allowed per appointment is up to 6.5 hours, am I allowed to treat that as a whole day unpaid if the employee’s attendance for the residue of his working day is of no value to me?  If the employee’s absence causes him to miss out on, say, a lucrative sales opportunity, is that an actionable detriment?

Love triangle leads to Police harassment claim

Posted in Harassment, Recent Cases

If your relationship were on the rocks, if you saw the object of your affections drifting away from you, what would you do? One would imagine, possibly even expect, that you would take urgent steps to get things back on track and that you would try desperately to see your other half so that you could explain why you were meant for each other. You might succeed and both live happily ever after, but even if you do not, surely you cannot be criticised for trying? Well, yes and no, as it turns out. Normally the worst you can do is make yourself look just terribly foolish, but where you and the person you had imagined as your intended both work for the same employer, bigger issues can arise. You may find that you play out the dying twitches of your relationship in the Employment Tribunal instead.

How about this sad tale of Cupid’s dart going badly astray, as recently reported in the Birmingham Mail? Ms A was a Police Constable with the West Midlands Force who worked with a male Sergeant, B, for some two years up to October 2011. Over that time they were involved in a close and intimate relationship. Comprehensively smitten and his affections seemingly reciprocated, B ended his prior long-term relationship to be with A and on 22 October asked her to marry him.

Two obstacles arose. The first, a relatively minor point, was that the proposal was made by text message, which in my view more or less requires its rejection on principle in any event. Text? Really? Second, it transpired that A was in fact already engaged in another equally intimate relationship with a different colleague, C, and on the verge of moving in with him. Not put off by this unpromising development, there were “ten attempts by the desperate [B] to contact [A] by phone and text between 23 and 24 October” said the Employment Tribunal to which A somewhat uncharitably referred her former lover’s attempts to talk her round. Who said romance is dead? We have not seen the Tribunal’s full Judgment in this case and so the content of those calls and texts remains unclear. The Tribunal found that they amounted to sexual harassment by B and adjourned the matter for a remedies hearing at a later date.

What compensation should A be awarded, if anything? No financial loss is alleged, so this appears to be an injury to feelings question only. The Employment Tribunal finds itself in a bit of a bind. On the one hand, it has found that these messages did fall within the Equality Act definition of harassment and therefore that they caused A some level of distress. On the other hand, it was clearly deeply unimpressed with A’s conduct in the matter: “The Claimant cannot be blameless in the catalogue of events. Put starkly, she decided unilaterally to cast aside what has been a mutually flirtatious intimate personal relationship with B, and perceive it as harassment”, it said, and she “had done nothing …to disabuse B of the notion that they were de facto a couple …. But we believe that she always knew that would never happen and that was not her intention”. Of B the Tribunal said: “We do not find that B is a bad person ….the balance of his mind was disturbed by his realisation of the truth … he is not, we think, by instinct or demeanour the sort of man who routinely sexually harasses a woman in or out of the workplace”.

So the Tribunal clearly feels for B. But it cannot legally, let alone politically, reach a decision that A somehow brought unlawful sexual harassment on herself. Equally, it cannot find that the gravity of B’s actions (and hence the compensation award) is reduced because he is basically a decent bloke without any “form” who was tragically misled and dreadfully upset at the time. Clearly B can be blamed for what he said on 23-24 October (the Force gave him a disciplinary rocket for it too). However, if the limited press reports thus far are true, the romantic in me rather hopes that the compensation awarded is entirely nominal. Do please let me know what you think.

Stress-induced racism – really?

Posted in Discrimination, Stress

When George Orwell wrote perhaps his best-known book, 1984 was still thirty-five years in the future and thoughtcrime merely a dramatic device to highlight the prospective horrors of a society which would punish for what you thought as quickly as for what you did.  Now 1984 is thirty years in the past, and thoughtcrime surely still just a literary concept.  

Or is it?  Take the example of Malky Mackay, former manager of Cardiff City Football Club and would-be boss at Crystal Palace until certain old text messages between him and a colleague came to light last month.  Mackay denies being racist, homophobic or sexist, all inferences which could readily be drawn from the wording of the texts in question.  He agrees fully that they should not have been sent (well, doh!) but offers two forms of mitigation – first, that there were only a handful of them sent among 10,000 texts over a number of years, and second that he was at the time “under immense pressure and stress in terms of the relationships that were not going too well at my football club at the time”.   

Letting off steam privately to a friend, I get.  Stress-induced rudeness, I absolutely get (an occupational hazard).  But stress-induced homophobia or racism, I do not.  What that would imply is not that the maker of such a comment did not hold those views but instead that for the vast majority of the time he or she could control or suppress them so that they did not become evident to third parties.  Nonetheless, those views must surely be in there in some form or other for phrases like “gay snake”, “fkn chinkys” and “bounce on her falsies” to be what floats to the surface when the pressure is on.  

So this is a recurrence of the old question – are those howling for Mackay’s head really doing so because of a tiny handful of inappropriate texts, or because of what those texts could be argued to say about the conscious or unconscious attitudes beneath them?  Put differently, can we accept that unquestionably discriminatory and offensive texts would be sent without the driver of some underlying bias?  This is not a given: bear in mind that there was no suggestion at any time during Mackay’s troubled reign at Cardiff that any of his decisions or statements were in any way tainted by discrimination. If it is right, however, are we not then perilously close to Orwell’s thoughtcrime? – you are judged not by what you do, not by the quality of your work or your relationships with your colleagues, but by some inner, potentially even unconscious, bias.  

No one would condone those messages, but it could equally be said that this is a dangerous path.  I am sure that there is no one with any real experience of his fellow man who does not think uncharitably from time to time about certain sections of the community, whether in response to an unhappy personal encounter or something seen on the news.  Those biases may be innate and fixed or may shift from time to time, but deep down, possibly even unknowingly, we all have them.  Assorted worthy commentators and the Mail Online have claimed that the Mackay incident shows professional football still to be rotten to the core, etc.  While that makes good copy, though, I wonder which of them could genuinely and honestly claim to be exceptions to my assertion above.  Let he who casts the first stone, etc.  Perhaps the inevitable reality is simply this – you can go about your work thinking what thoughts you will, as bigoted, bonkers, prurient or ignorant as can be conceived, and no one can touch you for it until you are foolish, careless or naïve enough to commit it to writing, say it to an audience or join UKIP. http://www.employmentlawworldview.com/weather-man-causes-storm-through-religious-views-prospects-unsettled-heading-south-decreasing/ and http://www.employmentlawworldview.com/words-fail-me-im-a-manager/.  

It is therefore hard at one level to believe Mackay’s denials entirely but there is a valid and meaningful distinction between “I have not a discriminatory atom in my body” (which at some level will be true of almost nobody) and “I have never let my private views on [race/sex/religion, etc.] interfere with the way I treat others or the decisions I have sought to make in my employer’s best interests”, which it appears so far that he could say entirely legitimately.

Acas dresses up old guidance on personal appearance in the workplace

Posted in Discrimination, Employment Policies

Clearly a quiet Summer over at Acas, to judge by the latest guidance issued this week, this time on Dress Codes.  

This is a one-page summary of some of the main considerations for an employer in drawing up such a Code – essentially that you ought to have a decent business reason for any restrictions in it and that it should not be discriminatory.  Avoiding direct discrimination is relatively easy – a similar level of restrictions between the sexes will be fine even if there are differences of detail, for example.  If your Code is going to exclude aspects of appearance, (dress, tattoos, hair, piercings) of a religious nature, however, the onus is on you to show why – otherwise you may face indirect discrimination claims.  The Code refers in particular to health and safety reasons to bar flowing clothes near machinery, loose hair near food or dangling jewellery (including but not limited to religious symbols) near anything or anyone who might catch in it.  Obvious stuff, none of it new and all already amply covered in the Acas Guidance “Religion or Belief and the Workplace” issued after the “Crucifix cases” in the European Court of Justice in 2013 http://www.employmentlawworldview.com/uks-equality-human-rights-commission-issues-guidance-on-religion-in-the-workplace/.  

If you were looking for detailed help on the religious dress front, moreover, this is not really the place to come.  How about this for leaving employers none the wiser: “Some recent legal decisions in this area suggest that people should be allowed to demonstrate their religious faith through their dress, for instance by wearing an unobtrusive cross symbol to denote Christianity or wearing a ….skull cap as part of the Jewish faith.  However, there have been other rulings based on different circumstances that may appear to conflict with this position”.   

In addition, what the Guidance regrettably does not offer is any steer on what (other than health and safety) constitutes a “sound business reason” for banning certain forms of appearance or dress. There are references to employers “communicating a corporate image” and “promoting a certain image through their workers which they believe reflects the ethos of their organisations”.  Both of these suggest that if you believe as employer that a certain image is beneficial to your business, you should have freer rein to require your staff to dress in a certain way or remove piercings or cover tattoos while at work.  However, the Guidance also requires the business reason to be “real”, and how is an employer to prove that?  Some sort of customer survey?  Or just its own delusions of professionalism, quite unsupported by empirical fact but as honestly and genuinely held as can be?  Does it matter, for example whether you are a leading merchant bank, a third-rate insurer or a high street tyre-fitter with aspirations to higher things?  A lawyer, a doctor, a Camden Market stallholder?  When are your corporate image reasons “real” for these purposes?  

At present, employers face the risk that a Tribunal determining whether a particular article of their dress code is reasonable in an unfair dismissal and/or discrimination claim is necessarily doing so retrospectively, after the disciplinary action or dismissal for breach has taken place.  If you find out only then that your Tribunal (for another could easily reach a different conclusion, equally unappealably) does not regard your particular business as warranting that restriction, you are already sunk.  Some help on what factors would inform that decision would therefore have been much more helpful than this re-hash of old material (although on the plus side, the numerous grammatical errors in the Guidance are all new – does no one read this stuff before it goes live?).

Unfair dismissal without a dismissal?

Posted in Dismissal, Recent Cases

In order to claim unfair dismissal you have to be dismissed. No, really. The EAT in Mr Clutch Auto Centres v Blakemore has overturned a Sheffield Tribunal decision that an employee’s employment was continuing, despite the fact that he had brought an unfair dismissal claim and there was no dispute between the parties that his employment had terminated.

In June 2013, Mr Blakemore brought claims for unfair dismissal, wrongful dismissal, holiday pay and outstanding wages. The key issue in dispute between the parties was whether Mr Blakemore had resigned on 18 October 2012 (as his employer, Mr Clutch contended) or whether he had been dismissed by his employer on 6 November (as Mr Blakemore contended). Mr Clutch compounded the confusion to some extent by arguing that had Mr Blakemore not resigned they would have sacked him anyway.  Both parties however accepted that Mr Blakemore’s contract of employment had terminated on or before 6 November 2012.

It must have therefore come as quite a surprise to everyone when the Tribunal rejected both parties’ contentions and instead declared that in its opinion neither party was right and Mr Blakemore in fact remained an employee of Mr Clutch.   The reasoning of the Tribunal is gloriously, though misleadingly, simple.  Mr Blakemore did not resign when the employer said he did and therefore its letter to him accepting that resignation was a nullity and not a dismissal.  Perhaps sensing deep down that this was skating on some legally quite thin ice, the Tribunal took the slightly unusual step of “urging the parties to resolve matters between them in order to avoid [Blakemore] needing to present a ….complaint…. in relation to monies owed”, which is broadly what he thought he had already done.  He had taken the advice of Acas and his household legal expenses insurer, he said, and as a self-described “spanner man rather than a lawyer” had claimed himself to have been dismissed.  Sadly, Mr Blakemore had claimed actual, not constructive dismissal.   There could have been a more than decent argument for the latter – it must be very damaging to the old trust and confidence thing to receive a letter telling you effectively out of the blue not only that you have resigned, but also that your resignation has been accepted and your employment is therefore at an end.  The employer appealed, bemused.

In the EAT the ever-reliable Judge Peter Clarke gave short shrift to the Tribunal’s judgment. On the Claimant’s own case he had been dismissed on 6 November 2012.  He was not then permitted to drop his current claims and bring a whole new set of proceedings on the totally inconsistent basis that his employment was actually continuing. The EAT also noted that his now working on a self-employed basis was also clearly inconsistent with his remaining employed by Mr Clutch. The EAT therefore set aside the Tribunal’s declaration that Mr Blakemore remained an employee of Mr Clutch Auto Centres.

This case therefore reiterates that an Employment Tribunal should not seek to determine issues which are not an issue between the parties (whether Mr Blakemore was still employed), but the EAT also went further than this and said that a Tribunal should not even offer an opinion on an issue which has not been raised by the parties, “particularly where, in my judgement”, said HH Judge Clarke rather tartly, “that opinion is wrong”.

Termination of US Employees for Posting “Sandwich Contamination” Posters was Illegal According to NLRB

Posted in NLRB

On August 21, 2014, the National Labor Relations Board (NLRB) issued a decision that broadens the line to which potentially disloyal actions by employees will be treated as protected activity.  In MikLin Enterprises, Inc. dba Jimmy John’s and Industrial Workers of the World [pdf], the NLRB ruled that posters and press releases alleging that Jimmy John’s was providing contaminated sandwiches to the public as a result of their failure to provide paid sick leave was protected activity.  Consequently, the termination of six Jimmy John’s employees, as well as written warnings provided to three others, was found to be in violation of the National Labor Relations Act (NLRA).

Employees of ten Jimmy John’s shops in the Minneapolis-St. Paul, Minnesota area formed a union in 2011, partially as a result of several work practices that the employees believed needed to change.  One of the primary concerns was the lack of paid sick leave, which the employees alleged resulted in sick employees returning to work and, subsequently, handling food served to the public.  When management refused to meet with them, the union began putting posters on bulletin boards in the restaurants as well as in public places that included a picture of two sandwiches and said “Can’t Tell the Difference?  That’s too bad because Jimmy John’s workers don’t get paid sick days.  Shoot, we can’t even call in sick.  We hope your immune system is ready because you are about to take the sandwich test . . . Help Jimmy John’s workers win sick days.”

The employees also alleged that they were not allowed to simply call in sick, which meant that they had to ensure that someone could work for them.  Employees who were unable to find replacements and missed work were penalized.  This was based on a Jimmy John’s rule that stated “We do not allow people to simply call in sick!  NO EXCEPTIONS!”  Jimmy John’s eventually fired six employees and issued written warnings to three other employees for their participation in the poster campaign.

In reaching its decision, the NLRB determined that the employees’ actions that led to the discharges and warnings qualified as protected activity.  The employees argued they had engaged in protected activity under the “mutual aid or protection clause” in Section 7 of the NLRA and that they sought to “improve their lot as employees through channels outside the immediate employee-employer relationship.”  Jimmy John’s contended that the actions of the employees were disloyal and therefore unprotected.  The NLRB determined that neither the posters nor the press release were shown to be disloyal, reckless or maliciously untrue to the point where the employees would lose protection under the NLRA.  The posters were clearly connected to issues involved in the labor dispute, namely the provision of paid sick leave, and the primary message of the posters was to seek support for the employees’ position in the dispute.

The NLRB held that concerted activity that is otherwise proper does not lose its protected status because it is prejudicial to the employer.  Further, communications that raise highly sensitive issues such as public safety have been found to be protected when it is sufficiently linked to a legitimate labor dispute and not maliciously motivated to harm the employer.  There was no indication that the intent of the employees was to inflict harm on Jimmy John’s, even though they have anticipated that the posters may cause some patrons to stop visiting the restaurants.  The employees’ purpose was a sincere desire to improve their terms and conditions of employment by obtaining a more flexible attendance policy that included paid sick leave.  The posters did not allege that people were getting sick or that the sandwiches were actually contaminated but suggested the realistic potential for illness resulting from employees who came to work and handled food while they were sick.

This decision shows that the NLRB is continuing to cast a wide net as to the type of actions that will be found to be protected activity.  Employers should be cautious when disciplining employees for activities that could be viewed as related to a labor dispute.  Actions that may seem disloyal or malicious to the employer may not be viewed the same way by the NLRB.