Sexual harassment seems to be becoming a common problem within the workplace. According to the figures, women who are employed as waitresses are most likely to be the victim of sexual harassment. This is due to the owners of these restaurants who will pressure the employees into wearing what some might say, inappropriate tighter clothing, this would then lead to sexual remarks being made against them from either customers or fellow colleagues whilst also being asked on a date.
In recent news an executive chef Alberico Penati, who does business with celebrities such as Madonna, Elton John and even Prince Charles at central London’s Harry’s bar. Is accused of aggressive sexual harassment against employee Ms Signoriello which lasted a period of 4 months. The abuse consisted of Mr Penati using offensive sexual terms towards the employee and then followed up by phone calls of abuse.
Mr Penati was later taken to a tribunal where the result was Ms Signoriello walked away with £124,000 for sexual harassment and unfair dismissal. Alberico Penati was then told he had a “bullying, arrogant” approach towards his staff, which was grounds for constructive dismissal.
Employment law tribunal cases like this take place all around the UK, it is important that the victim comes forward as soon as possible to stop the sexual harassment and prevent any further bullying. It is grounds for constructive dismissal. If you feel you are a victim of such abuse then we urge you to contact us.
See also our post on a similar case where a celebrity chef has been accused of sexual harassment.Read More
Whistle-blower unfairly dismissed
A West Midlands doctor won a complex employment tribunal claim, we read in a recent BBC news story. In 2010 heart consultant Dr Raj Mattu blew the whistle on two cases where patients died in an overcrowded ward at Walsgrave Hospital.
He said that a policy of putting five patients in four-bed bays in December 1999 meant that vital equipment could not be used to save the life of a 35-year-old man.
The legal term for blowing the whistle is ‘making a protected disclosure’. The specialist decided to “go public” in September 2001, after a hospital manager appeared in television news reports insisting that lives had not been lost because of overcrowding. An NHS review in 2004 cleared the hospital of responsibility for any deaths in relation to overcrowding. He attracted media coverage and public interest.
After he raised the alarm he was suspended over
bullying allegations (of which he was cleared by the GMC) and then sacked. He appealed against his dismissal but lost. The judge ruled that he had suffered detrimental treatment as a consequence of being a whistle-blower, but that this wasn’t the reason for the dismissal, which was an unfair dismissal on other grounds.
The employment tribunal said that his treatment was partly on the basis of disability discrimination but that his race was not a factor.The employer said it would consider appealing after reading the 400-page judgment.
Dr Mattu told BBC Radio 4’s Today programme that the trust had made false allegations as a plausible reason to dismiss him, when the real reason had been his whistle-blowing.
“Scores of false allegations, some of them quite heinous, were put forward,” he said.
The trust did not comment on the employment tribunal outcome.Read More
This is a story about restrictive covenants, an area that trips up more employers than perhaps any other – and it doesn’t usually involve the employment law tribunal.
In a recent case, a company developed very specific bespoke just-in-time software for the fresh produce industry. When its sales manager resigned to join a competitor they dusted off a copy of his contract, which contained a 12 month non-competition restrictive covenants banning him from selling “any products with which you were involved whilst employed by us in the last 12 months”.
What they meant of course was not “don’t sell our software with a competitor” but “don’t sell software in the fresh produce industry – feel free to sell software in other sectors, or point-of-sale software in the fresh produce sector – just stay away from competing with our program”.
The employee’s lawyers noticed that the wording “products with which you were involved” could only mean the employer’s own-brand software. He argued he was free to use his knowledge about the intricacies of how the program (that he by now knew inside-out) to let his new employer get a foothold in that market.
In a surprise decision, the judge was persuaded to read that restrictive covenant clause as if it said “products with which you were involved or similar products”, thus preventing him from joining his competitor.
The employer won by the skin of its teeth. But not before spending, no doubt, upwards of £15,000 on a trip to the High Court of Justice.
Case report: Prophet PLC v Hugget (2014)Read More
It is becoming more and more common for employees to use mobile devices to secretly record meetings with managers and even to leave the device recording during deliberations at disciplinary hearings. Smartphones and their recording apps are the reason for this.
Our advice to both parties is to have a note-taker present. Employers should get the employee to sign to confirm that the notes are accurate – since the employer’s notes are more likely to help its case and not the employee’s.
Thanks to recent Employment Appeal Tribunal decisions, generally the employee will be allowed to use their secretly-recorded evidence of a meeting at a later tribunal hearing.
Consequences of secret recordings at disciplinary hearings
In theory this shouldn’t pose a problem, since you will have acted above board in and around the meeting, however it can leave the employer with egg on your face if the recording shows that its notes contained significant mistakes or omissions.
But even worse, if the employee only confesses to the recording late in the employment tribunal process and it conflicts with anything your witnesses have remembered in good faith, it can wrongly casts doubt on the rest of their testimony before the tribunal.
And if managers voice opinions or ask questions which are ill-advised, a recording allows the employee to refer to these even if they helped to arrive at a legally sound decision in the end.
If a disciplinary hearing involves deliberations or taking HR advice, it is a good idea for the employer to make sure that the employee hasn’t left anything behind in the room or even to do this part of the process somewhere else.
On the bright side, secret recordings by staff can potentially help the employer as they may be a disciplinary offence and can show that the trust has gone from the relationship. Nevertheless, we recommend that where the trust and confidence has broken down, employees who distrust the employer’s note-taking and can’t find a suitable companion should probably make a recording.
But the reality is that for employers they are a worrying trend. The answer is to get your best note-taker to attend disciplinary hearing.
And the best note-taker isn’t necessarily the fastest typist, but someone who is has experience of reducing what they hear into shorter notes in real time.
Both sides should liaise with the other to try to produce a set of notes that is agreed, by merging the two. We find that this makes taking advice and pursuing employment tribunal claims a lot smoother.Read More
If you have staff who need to be available to deal with work as it arises (perhaps on an emergency basis), you may have grappled with the question of whether you need to pay them for being on-call.
Examples include key-holders, medical and caring staff, the emergency services, farm managers and certain employees in the catering and service industries. Sometimes, accommodation is provided for the specific purpose of being on call.
Where time on call has to be spent at the workplace, this counts as working time, whether or not the employee is actually working.
Hours spent on call away from the workplace, where the employee is free to pursue leisure activities, only count as working time for time actually spent working. But there are grey areas, for example when you require your staff to be contactable and to respond promptly if needed.
This was highlighted recently in a recent employment tribunal case brought by ambulance paramedics (Truslove and another v Scottish Ambulance Service). They were obliged to stay within a three mile radius of the ambulance station, ensuring that they could reach the station within three minutes if needed. Subject to that, they could do their own thing. No-one lived in that radius.
They were required to be on duty in case their services were needed. They weren’t given rest periods if there was nothing to do and they asked an employment tribunal whether being on call was the same as being at work. Was it working time? Rest time? Their own time?
Some definitions and principles:
- Time spent working, at your employer’s disposal and carrying out duties.
- Where a worker is obliged to stay in the workplace and be available for work if needed, this is working time and not a rest period, even if allowed to sleep – the EU case of SIMAP v Valencia.
- This is the case even if it’s not the workplace, but a place nominated by the employer – EU case of Jaeger and MacCartney.
- If they are merely obliged to be in a general radius from the workplace so as to respond promptly, this could be a rest period – Northern Irish Court of Appeal case of Blakley v South Eastern Health and Social Services Trust.
The Employment Appeals Tribunal found that the paramedics were working. Here are some pointers for deciding the likely outcome:
A requirement to be present at a place or on call but very near a place determined by the employer will be working time.
Lack of freedom to do their own thing is relevant. But merely requiring an employee not to go abroad in on-call time would not make it working time
A requirement to meet a target response time of three minutes is so short that it points towards working time.
Where the on call location is necessarily away from home, or necessarily at home, that time is more under the control of his employer and therefore working time.
If still in doubt look at the purpose of the Directive, which is to improve living conditions and health and safety.
The take-away from this case is that workers who are subject to significant geographical constraints in on-call time are likely to be considered to be working during it.Read More
We bring you news of a bullying manager at the BBC who was investigated for bullying after a grievance was raised by an employee. He was cleared of allegations relating to expenses and sexual harassment.
The manager was an editor and he is married to Radio 4’s Victoria Derbyshire.
He had worked for the BBC for 25 years.
Bullying managers cost the BBC £400k last year. The events are a reminder to employers that a properly-held disciplinary exercise is key to avoiding costly for tribunal claims. The issue of bullying managers has plagued the BBC in recent years and caused several employment tribunal hearings.
Employers can avoid this liability and employment tribunal hearings by following three steps:
- Having a robust policy in place
- Training managers on it
- Disciplining managers who breach it.
If you do those three things, then in the event of a claim you can advance the “cut-throat defence”, which is to blame the manager and avoid footing the bill.Read More
A supermarket customer lost an expensive personal injury case after being attacked by a Morrison’s garage forecourt attendant in Birmingham’s Small Heath.
Over five years ago (the wheels of justice can turn slowly) a Somali man was checking his tyre pressure at the petrol forecourt and asked a member of staff whether he would print off some documents he had on a USB stick.
The employee gave a racist reply, followed him to his car, punched him in the head, and kicked him while he was curled up on the petrol station forecourt.
The customer suffered bruising, epilepsy and mental trauma. He sued Morrison’s, claiming it was liable for the employee’s actions but after an appeal, he lost his case.
No doubt the employee was dismissed after a disciplinary hearing.
The court said that the employee had strayed so far from his job that he was doing his own thing, not acting in the course of his duties. If he had been a nightclub bouncer, assaulting a customer might be a small enough step from his duties to make the employer liable.
It helped the employer in this case that the manager had actually told the employee to go back inside and not to follow the customer outside.
The lesson for employers is that the ‘hands-on’ manager saved Morrison’s a lot of money in this case. We estimate that the legal fees alone would have been around £100,000.Read More
From July 2014 employees will have wider flexible working rights i.e. An employee with half a year’s service can make a flexible working request. You can do this for any reason – it’s no longer tied to childcare responsibilities.
The old, strict rules have not gone away. There is still a box-ticking exercise for both parties in order to stay within the law. But employers now have a duty to deal with the request in a reasonable manner. Acas has published a draft code of practice for employers, which includes case-studies.
Our view is that as long as employers follow the rules, they can reject a request that would damage the business, without incurring a tribunal risk.
But introducing home-working and other types of flexible working helps to retain good staff. It also shows that your workplace practices do not disadvantage those with disabilities and childcare responsibilities,. Wider flexible working rights can help to protect you from discrimination claims.Read More
At Hatton James, we act for both employees and employers.
We find employees often have a whistle-blowing angle because it is hard for an employer to follow every law perfectly; employees who are unhappy enough to bring a claim are often the same ones who complain about unlawful things in the workplace.
As to the employment tribunal awards, a whistle-blowing angle removes the limit of a year’s salary on an unfair dismissal claim and can bring its own compensation for unfavourable treatment after the whistle was blown. Sometimes, an employer feels they have to treat a whistle-blower with kid gloves for fear of these penalties. So it was interesting to read about the Rolls Royce employee who repeatedly raised engine design problems with superiors, refusing to accept internal reports finding that he was wrong. He said this was a conspiracy which went right to the top of the company.
The employer won, but this was only a tribunal decision, so it doesn’t set any precedent.
It does highlight how complex the law can be in this area. In the closely-related field of victimisation (dismissal, say, after a complaint of discrimination), there is confusion, as shown by the separate stories of Ms Martin and Mr Woodhouse.
They were different cases where employees repeatedly complained of discrimination and were eventually sacked after many many grievances (eight in her case, ten in his), appeals and (in the case of Mr Woodhouse) seven tribunal claims brought whilst still an employee(!).
In both cases the employers finally had enough of the unsubstantiated complaints, sacked them, and faced victimisation claims and employment tribunal awards.
Ms Martin (from London) lost her case at the EAT, while Leeds-based Mr Woodhouse won his. There was no truth in either employee’s complaints but the difference was that she was obsessive and fixated because she was mentally ill; he was just obsessive and fixated. This meant she was found to have been dismissed because of a personal characteristic (not victimisation), while he was dismissed because of his repeated unsubstantiated complaints (victimisation).
And to think the employment tribunals were originally supposed to be free from legal technicalities…Read More
A report on home-working by the Trades Unions Congress tells us that the number of people who normally work from home has increased by 62,000 to 4,000,000 over the past year, of whom 650,000 are disabled.
The TUC makes the point that offering home-working can attract employees who would otherwise be discouraged by high commuting costs and that almost all studies show that it is more productive.
However, despite the many advantages of home-working many employers don’t trust their employees to work from home. We think that the rise in super-fast broadband is likely to boost this trend still further.Read More