November 2016

Case study: Eva’s Solihull settlement agreement

From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Eva from Solihull. Settlement agreements are bread and butter to us and we deal with several every month.

Eva had a decent job working in middle management but fell out with her manager after a miscommunication by email that left egos bruised.

She was offered a settlement agreement under which she would leave quiety for her notice pay without having to work her notice, with the threat of “an HR process” if she didn’t accept it.

She looked for employment lawyers in Birmingham and found us.

We advised that, as she had more than two years’ service, she couldn’t be dismissed without a fair reason and there didn’t seem to be one here. She thought that she could find another job within three months but it wasn’t guaranteed. So she was looking for anything more than three months’ notice.

However, her employers weren’t actually threatening to dismiss her if she didn’t accept the deal.

We offered  her a deal under which we would negotiate with the employer and seek six months pay instead of three months and charge a percentage (35%) of the extra portion that we managed to negotiate, if any.

The negotiations were protracted. The employer threatened to invite Eva to a disciplinary. We advised her to hold her ground. She had been intemperate in her email but in our view it wasn’t a sackable offence. The employer also alleged that her colleagues were refusing to work with her. Their witnesses didn’t really back that up but they did suggest that Eva had been abusive to them, albeit a long time ago.

An employer is entitled to raise historic disciplinary allegations, if it is only hearing about them for the first time. But the longer that there has been since the events that took place, the less fair it is to punish the employee for them. We advised her to stand firm and ignore the threat.

She attended the disciplinary and once the evidence was out in the open, we put to the employer that they didn’t have enough to dismiss, so she wouldn’t be leaving. Eventually they increased their offer to five months pay but coupled it with a threat to dismiss.

By that stage, we felt that we could advise a deal, because the threat to dismiss made sure there was a legal dispute between the parties. That means that the money on the table could be called compensation (which isn’t taxed) rather than notice pay (which, in certain cases, including Eva’s), is taxed. So, with the additional sum of money that would have gone to the taxman, Eva was able to leave with well over 6 months’ pay, which was enough for her to take the deal.

We finalised the negotiations and tied up the agreement for her, leaving another satisfied customer with a successful Solihull settlement agreement.

Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.

By Jason Harbourne

Image courtesy of Michael Coghlan  used under CC

Case study: Dav’s DVLA dismissal

From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Dav.

Dav drove HGVs for 15 years with the same company. A few years ago he started suffering health problems and his employer re-assigned him temporarily to a different role.

He was diagnosed with sleep apnoea, a condition that interrupts breathing during sleep. Left untreated, this can cause the patient to fall asleep during the day.  Once the diagnosis was made, his doctors notified DVLA, who suspended his driving licence  until it could be treated. He was treated with a Continuous Positive Airway Pressure (CPAP) machine, to be used whilst he was sleeping. After his doctors signed off that it was working, he was allowed to resume driving by the DVLA.

A couple of years later, at a routine hospital review, he learned that he had been using the machine slightly wrongly and again the doctors told the DVLA.

However, this time, his employer had had enough. He was sacked on the spot.

Dav searched for employment solicitors in Birmingham. Employment law was on his side. It is unfair dismissal to sack someone with more than two years’ service without following a procedure. Sacking someone on the spot is no procedure at all and in his case that would lead to £5k in compensation.

But he could also expect to receive a large award / settlement if he could show that dismissal was also unfair in practice. This would be the case if the decision to dismiss would have been the same, even after a proper procedure.  In that case he could expect to obtain compensation for a reasonable period of lost income.

And because sleep apnoea is a medical condition that qualifies as a disability, the actions of the employer drove a coach and horses through the Equality Act’s employment law protections for the disabled, amounting to discrimination. The dismissal was discrimination for a reason relating to his disability, that reason being the suspension of his licence.

He came to us for employment law advice and we offered to take his case on a no-win, no-fee agreement, which would entitle him to legal advice all the way to trial at no cost if it was unsuccessful.

The employer’s only real argument was that without his licence, if Dav had no income if wasn’t because he was dismissed (the employer’s fault) but because couldn’t get a new job with his medical condition (not the employer’s fault). They would still have to pay compensation but not as much. So Dav worked very hard to chase the hospital and DVLA to get a clean bill of health and his licence back, which took away this argument.

We had to issue a claim to do it but we secured a settlement for just under £20k. The employer learned a valuable lesson that day.

Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.

By Jason Harbourne

Image courtesy of Sally Butcher, used under CC

Employment law and unpaid internships

Does employment law mean that interns should be paid whilst being trained?

In November 2016, the government refused to ban unpaid internships by blocking the National Minimum Wage (Workplace Internships) Bill. The refusal to pass the Bill was justified by the fact that paying interns would add financial pressure to firms.

Current employment law insists that interns be paid the national minimum wage if they fulfill the definition of a “worker”. That is, someone who performs work personally under a contract.

A contract requires that both sides make promises about the continuation of the working relationship.

Little case law exists on the matter, but in one a Ms Reilly was working for nothing in a big store, accused her employer of breaching  her human rights with regard to slavery. The Supreme Court (House of Lords) found for her, saying that Parliament had not given authority to the Department of Work and Pensions to create these back-to-work schemes.

True interns are volunteers; that is they enter into an arrangement which

• Does not entitle them to financial reward.
• Does not require them to turn up to work.
• They should not produce work that an employee would be paid for.

We and some of our clients use interns. We give them detailed feedback on their work, which makes the relationship more about them learning a skill and less about our firm using free labour. We don’t impose any expectation of them turning in any work.

To conclude, opinions on the subject are  diverse. While some people argue that unpaid internships are a form of modern day  exploitation, others say that they provide a chance for an intern to see in depth how paid employees work, gaining experience and skills. Twenty-two Members of Parliament are currently advertising for unpaid internships, which shows reluctance to ban them, even in Parliament.

The debate concerning the bill is definitely not over, as it will be re-considered by Parliament in February 2017.

By Lily Wilde

Image used under CC courtesy of Paul Inkles

Bisexual wage gap: the unseen sex discrimination

A much-talked-about type of sex discrimination is the fact that women earn about 20% less than men. We’ve written about a different wage gap recently but today we saw that Bloomberg has reported that there’s a wage gap for bisexuals, too.

According to an American study bisexual women earn between 7% and 28% less than straight women, and the figures for bisexual men are 11% to 19% less than their straight colleagues.

The gender pay gap results from factors like working fewer hours and needing a more flexible schedule because of childcare. But these reasons don’t apply to bisexual workers any more than they do for the general population.

The author says that when you take into account the effects of motherhood, fatherhood and marriage the wage gap between lesbian and heterosexual women falls away.

But these factors are less prevalent among bisexuals, meaning that the findings are suggestive of discrimination.

The author says he found in other research that bisexuals are more likely to be perceived as immature, dishonest, and incompetent than straight and gay counterparts.

That means that bisexual stereotyping may be having an effect on bisexuals’ pay.

Bisexual stereotyping includes phrases like “greedy”, “indecisive”, “uncommitted”, “undeveloped”, which bisexuals find naturally irritating. Even many people who champion gay equality will express these views, meaning that bisexuals can fear coming out.

This is an interesting study and though we have been involved in several cases to do with sexuality discrimination we have never seen a case involving bisexuality. Bisexuals should remember that being taunted for being straight or for being gay is just as much sexuality discrimination as harassment on the basis of being bisexual.

We would love to be able to help a client with a sexual orientation discrimination client; they are interesting cases and bringing them can make a real difference to those involved.

By Jason Harbourne

Image licensed under CC, used courtesy of HTorbak Hopper

Birmingham employment solicitors watch 911 case

Birmingham’s employment solicitors are watching the case of a teaching assistant who was sacked for complaining about her pupils being shown footage of the 9/11 New York tower attacks.

She felt her 11-12 year olds shouldn’t be watching footage of the towers’ occupants falling to their deaths, which was shown as part of a class on poetry. She was dismissed an hour after raising the issue with her managers.

She has been offered £11,000 to settle her claims for whistleblowing-related unfair dismissal and discrimination but is holding out for an apology at a December 2016 hearing, if the matter doesn’t settle at a November mediation.

After dismissing her, the school allegedly completed an internal safeguarding form that raised concerns about her suitability for a role in teaching. The form also suggested that she had been motivated by her faith when raising the concerns.

For her part, the former employee insists that she was motivated only by concern for the children and to have suggested that her religion was relevant was discriminatory.

The school is one of those named in the so-called trojan horse scandal, which was about Muslim agendas in the management of Birmingham schools.

Employment lawyers are interested in the case involving Heartlands Academy

Hatton James Legal advised two teachers from other trojan horse schools, which treated them badly in 2013-2015.  One was a disabled IT teacher who was left on the shelf and not permitted to return to work after an operation. The other was an English teacher treated similarly when she fell pregnant. We secured compensation payments for them substantially more than the  £11,000 reportedly offered to the teaching assistant in this case.

Because of its topicality, Birmingham employment solicitors are taking a keen interest in the case.

The school in this case, advised by employment solicitors in Birmingham County Councils legal department, refused to comment while the case was ongoing.

Reporting by Jason Harbourne

Is a judge protected by whistleblowing laws?

The Employment Appeal Tribunal has just given an important judgement on whistleblowing law in the UK. It decided that a judge (Judge Claire Gilham) was not an employee, but a “post holder”, which is a different concept in employment law. As she did not have a contract of employment with the Ministry of Justice she was not a “worker”. Therefore judges are not protected by whistleblowing laws.

District Judge Claire Gilham had tried to show that she was protected as a whistleblower, meaning she needed to show she was a “worker” as defined by the Employment Rights Act 1996.

She went public about the way she had been bullied, harassed and overworked during her tenure to Warrington County Court in 2009. This had led to her suffering a nervous breakdown.

The case had previously been dismissed by an employment tribunal hearing, which found that she was not a “worker”. This was upheld by the Employment Appeal Tribunal recently. It went on to state that when Judge Gilham was appointed to the bench and the correspondence letters she had with the then lord chancellor clearly did not amount to a contract of employment between herself and the Ministry of Justice.

The EAT went on to state that Judge Gilham’s right to freedom of expression under the European Convention of Human Rights was merely a fudged attempt to add an extra category of a worker for someone who did not need to have a contractual relationship but who could still benefit from the current legislation on whistleblowing.

This case is exactly the sort of territory occupied by the recent Uber and Deliveroo cases – when is someone an “employee” or a “worker”?

These cases show that there are categories of staff (such as self-employed) who may think that they are “workers” for the purpose of whistleblowing legislation but who are not afforded protection.

By Sanjeev Kumar

Case study: Charlie’s vaping disciplinary

From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Charlie, a hotel worker and his disciplinary for gross misconduct for vaping.

Almost all employers ban smoking in their buildings, though some provide a place outside where smokers can gather. The law prohibits smoking in buildings accessible to the public but vaping is down to the individual employer.

We are finding that employers generally don’t allow vaping, either for image reasons – it looks like smoking from a distance – or because some people may not like the smell.

It is sensible for an employer to have a handbook that sets out the position but this is not strictly necessary as long as staff know that it is considered a disciplinary offence.

Charlie works in a hotel chain and had been given a written warning for vaping at work, though this wasn’t prohibited by the handbook. This week he came to us complaining that he had been invited to a disciplinary misconduct meeting for setting off a smoke alarm in one of the rooms and managers believe that his vaping was to blame.

When the alarm sounded, his manager asked him where his vaping ‘mech’ was and Charlie answered that it was in his locker. His manager didn’t follow that up at the time, for example by checking his pockets or his locker.

So now, it is hard to get to the truth of what set off the alarm, which can be triggered by deodorant and opening a can of carbonated drink.

We are advising Charlie and if his disciplinary goes against him we will help him with a claim for unfair dismissal – he has 15 years’ service with the hotel chain and a lot to lose from this disciplinary process.

He can’t claim that he didn’t know vaping was against the rules – although the handbook is silent on the matter, he knew from his previous disciplinary. But his defence is that he wasn’t vaping, there is no evidence that he was vaping and the employer must not dismiss if no reasonable employer would dismiss where there is no evidence.

Sadly for Charlie, he expects to be dismissed – he thinks his employer is gunning for him. We’ll keep you updated by updating this blog post.

Our clients agree to the use of their stories but names are changed for anonymity

By Jason Harbourne

Images courtesy of Jonn Williams, used under CC

**Update November 2016: The result of the disciplinary was that Charlie was cleared and so not given any warning**

Employment tribunal cases in decline

Note: a subsequent legal change has affected the accuracy of this material.

Employment tribunal claims against employers are in decline and have been since the introduction of employment tribunal fees two years ago.

Under current legislation, the odds are still stacked up against any employee who wants to seek redress through the employment tribunals.

Since the introduction of employment tribunal fees, it costs up to £1,200 to see a claim through to the final hearing (£250 to issue an employment claim and £950 for a hearing fee).

Our other article explains the system for rebates.

According to a recent study the number of employees who are bringing claims for cases such as discrimination or unfair dismissal continues to dwindle. The TUC cits a fall of up to three-quarters of unfair dismissal claims being pursued. Also that discrimination cases on grounds of sex has fallen by 90%, race claims by 61% and disability by 63%.

They reported that the average figure of claims being pursued has fallen to less than 7,000 claims per month. In contrast, the figures for the 2012 to 2013 were more than twice this.

The TUC general secretary, Frances O’Grady, said: “These figures show a huge drop in workers seeking justice when they’ve been unfairly treated. Now bosses know they can get away with it, discrimination at work can flourish unchecked and people can be sacked without good reason. The evidence is there for all to see. These fees – of up to £1,200, even if you’re on the minimum wage – are pricing out thousands each month from pursuing cases”.

Since taking the reins of power our current PM Theresa May has pledged that employment rights will not be reduced, so she now has every opportunity to reverse the restrictive fees and allow every worker in the land to have full access to justice.

However it is Conservative policy to continue the fees regime – only the Labour party has pledged to remove employment tribunal fees from the statute books.

Employment solicitors take aim at Tesco

We read that multi-claimant employment solicitors Leigh Day are taking a class action against Tesco, who are cutting pay rates for night and weekend shift workers on hourly rates.

The complaint is by workers who are unhappy at pay rates decreasing for weekends, bank holidays and night shifts.

17 employees are involved in the test case to protest against the cut introduced in July. The employment solicitors involved in the case believe that 38,000 members of staff could be affected.

It often comes as a surprise to employees but employers are allowed to reduce pay and conditions as long as they introduce the changes in the right way, which includes proper consultation. Tesco agreed the changes after consultation with union in February. The move was accompanied by a 3% pay rise to staff and a lump sum to those affected. The employees concerned were given 18 months of the difference in their pay as compensation.

However, the main change has been that double time for Sunday and bank holiday shifts becomes time and a half instead.

The employment law issue is that the hourly-paid staff are mostly those over the age of 40 years old. Therefore this could be seen age-discrimination unless it is justified, which is a tough legal test for Tesco to beat.

In a trend that we anticipate will become even stronger after Brexit, retailers are making cuts to staff wages.

It is the longer-serving staff in these businesses who usually suffer the most, said the employment solicitors bringing the case.

The transition payment was equivalent to the loss in pay over the next 18 months. Tesco did not confirm how many workers were affected but said it was a small number.

We hear that Marks & Spencer may be facing similar issues. Recently they reduced the earnings of about 10% of its shop-floor workers by cutting anti-social hours payments.

Employment law, tattoos and piercings

Tattoos and piercings are more popular than ever. A 2015 study by the British Association of Dermatologists stated that one in five people are tattooed. But what are the employment law implications?

Only a few decades ago tattoos and piercings used to be associated with gangs and delinquencies. Even though the stereotype has now disappeared, discrimination against tattooed or pierced individuals is still present.

Tattoos and piercings are often viewed as a statement of identity. Is there protection from employment law against management decisions that are anti-tattoo or anti-piercing?

At work everyone usually must follow the company dress code. In some artistic fields, tattoos or piercings can increase someone’s chances of being hired, but individuality is not compatible with certain professions. Most companies have strict dress codes which often prohibit visible tattoos or piercings. These could be seen by a client as being unprofessional or even intimidating, which proves that the aforementioned stereotype has not been completely erased. By creating adequate legal protection, the preconceived idea of the aggressive tattooed and pierced criminal could probably disappear.

Canadian Prime Minister Justin Trudeau has a tattoo on his left arm. Even though he covers it up for conventional meetings, the Prime Minister does not hesitate to show his tattooed arm during less formal events. Many people view the politician’s tattoo as a new, youthful, and more modern manner of going about with politics.

In the UK the main employment laws protecting people against discrimination are discrimination law and unfair dismissal law.

Discrimination covers disability and religiosity, among other things. Disability includes those with disfigurements but it does not provide protection for tattooed or pierced workers.

Unfair dismissal and disciplinaries for reasons relating to appearance could fall within the ACAS guidelines on dress code. They state that dress codes should apply equally to men and women. Employers should consult their staff members and reach an agreement that can then be written down. Piercings are slightly different from tattoos as they can be removed more easily.  Thus, depending on the type of work, an employer could ask his employee to remove his piercings for safety or policy reasons.

If a tattoo has a religious or cultural significance it could be argued that there is a racial or religious angle. In that case, there is a balancing exercise to be carried out in order to satisfy the ‘indirect discrimination’ test, though this test is really quite employer-friendly. We are not aware of any caselaw on the subject, though.

Many companies have strict dress codes which often prohibit visible tattoos or piercings. These could be seen by the client as being unprofessional or even intimidating, which proves that the stereotype has not been completely erased.

On balance, it is quite hard to imagine a situation where someone would be within their employment law rights to complain about being asked to cover up a tattoo or piercing.

By Lily Wilde

Image used courtesy of Clara , licenced under CC