Author: Gareth

Are clowns allowed as meeting companions?

In the UK, no.

But that didn’t stop Australian marketing consultant Josh Thompson from hiring a clown to be his redundancy companion in a consultation meeting, in a news story that has gone viral.

Thompson’s employer invited him to a meeting to discuss his role . He foresaw that he would be sacked at the meeting. in the UK, an employee has the statutory right to bring a companion who is a colleague or union official to a grievance or disciplinary meeting. But (like in New Zealand), this does not include a redundancy consultation meeting. Still, the employer said he could bring a redundancy companion for support and it is good practice to allow that here too. So, as a joke he hired Joe the Clown for £100 to sit through the meeting making balloon animals and miming a tearful reaction to the news that his job would come to an end.

Thompson said: “There’s not much to it really. I thought it’d be funny, so I did it. There’s not much more to the story than that.“. 

In the UK, a meeting companion is not permitted (unless the employer agrees) to answer questions but may address the meeting and may advise the employee but must not disrupt proceedings, eg with the squeaking of balloon-rubber as Joe the Clown did. We have seen a surprising number of Employment Tribunal over the years about the right to be accompanied. An employer should permit a companion, even where there is no statutory right, in cases where communication disability or language barrier might apply. An employer should say no to a particular companion if that person is, for example, a co-accused in a gross misconduct disciplinary or a witness in a grievance. If the right applies, it is the right to a reasonable choice of companion.

The remedy for a failure to permit a reasonable choice of companion is compensation of up to two weeks’ gross pay but awards have been as low as £2, where there was no real prejudice caused to the employee.

The Government currently has no plans to permit redundancy companions or to add clowns to the list of permitted companions for disciplinaries and grievances.

Image used under CC courtesy of Sophie.

Paternity rights and premature babies

This unique birth has highlighted the inadequate paternity rights fathers of premature babies have. They have to return to work after just 2 weeks’ leave.  Their babies may be in hospital for long periods of time with many complications.  The current paternity leave laws make no provision for this scenario.

How do new dads cope?

Firstly, the employee should have discussions with their employer. The employee can check whether they have enhanced contractual paternity rights. The employer may also sign the employee off sick so they can support their partner and baby.  The employee could use parental leave but this is usually unpaid and unsuitable.

Current paternity rights 

Statutory paternity leave is limited to one or two weeks’ paid leave. It is taken after the birth and completed within 8 weeks from birth.  The medical definition of a premature baby is at 37 weeks or earlier.  Most are born between eight and three weeks early. Eight weeks is clearly insufficient time. Babies born prematurely are also more likely to have a disability.

Over 60,000 babies are premature in the UK, which is 7% of all births. A number that will affect many new fathers.  Lobby groups are urging the government to do more to support these families by improving paternity rights.

What can employers do?

Employers might consider offering better contractual paternity rights by way of:

• Additional paid leave
• Allow employees to take leave beyond the 56 days deadline
• Allowing temporary flexible working arrangements
• Varied start/finish time
• Home working

Alternatively, employers could introduce a compassionate leave provision. Or even paid parental leave for such circumstances.  Ensuring line managers understand the difficulties of this scenario will also help. This would result in better support for employees while balancing the needs of their business.

Employees who keep their employers informed of their situation will find most are supportive. Many problems arise through lack of communication.  At such a difficult time, they might even consider asking a relative to speak for them.

Employees are encouraged to talk openly about the difficulties they face. Both parties can then agree practical ways to cope with paternity issues.

Image courtesy of César Rincon

Will this Christmas job ad lead to employment claims?

We saw this job vacancy on the internet. You might ask what is wrong with seeking a bearded retiree to a deliver parcels by sleigh and be paid in mince pies and sherry – after all this has been the protocol for centuries!

Well, it’s bound to lead to employment claims for this recruiter. Let’s take it apart:

Discrimination

The Equality Act requires a recruiter to consider a wide enough pool of potential applicants to avoid discrimination.

This advertisement deters candidates who are young (“white hair” and “retired”) and female (“beard”). Age and sex are “protected characteristics” and cannot be used as a criterion for selection.  Why shouldn’t a young female applicant, who can drive a sleigh etc, perform the job?

Using the word “active” implies that only able-bodied candidates are suitable, which again deters those with disabilities.

If Santa is diabetic there is no reason why mince pies and sherry could not be substituted with gin and sugar free tonic and salted peanuts!  This may be an adjustment the employer should consider in order to avoid employment claims.

But wait! Muslims, Presbyterians and Quakers are unlikely to be open to being paid in alcoholic drinks. This is indirect discrimination (a one-size fits all policy that affects some religions more than others).

But this is Santa we’re talking about. Santa must be an older man, that’s what the role requires.

Or, in legal terms, could the direct discrimination be justified by the ‘genuine occupational requirement’ defence?

It depends on whether Santa is performing a role or playing a role. If only people with a particular protected characteristic can do the job (the usual example is a male or white actor needed for a white male role) then these requirements are needed. But there is no such requirement to perform the role of delivering parcels.

If Santa is playing a role, then the ad is fine from the discrimination angle. But as we all know, Santa is real and the ad falls foul and could lead to employment claims.

Excluding candidates based on protected characteristics can be costly – tribunal claims can be bought by anyone who sees a job ad. All this would lead to claims of a few thousand pounds in injury to feelings per applicant who brings a claim, plus some compensation for the chance of losing out on the job by otherwise qualified applicants.

National Minimum Wage and Working Time Reg claims

Payment in sherry rather than money is a real concern, because workers should receive the NMW in the form of cash, rather than benefits in kind (regulation 10(f) of the NMW Regulations 2015). Santa must get at least £187.92 for the 24 hour shift.

Obviously, deliveries must take place overnight, otherwise the world’s little boys and girls would see them take place and the magic of Christmas would be spoilt. However the employer must ensure that no night worker doing work involving special hazards or heavy physical strain works for more than eight hours in any day (reg 6(7) of the WTR). In our view, carrying loaded sacks onto slippery roofs counts under this regulation. Therefore the employer should be looking for several candidates to cover the shift.

Under reg 7(1) Santa is entitled to a free health assessment. If that shows that the cold conditions would be bad for him (or her) then deliveries would have to take place in the daytime, on Boxing Day (reg 7(6)).  Regardless of the health check results, Santa would have to get the deliveries done in 13 hours to get the 11 hours’ uninterrupted rest per day given by regulation 10.

Other WTR regulations allow Santa regular rest breaks because the work is ‘monotonous’. Santa should certainly take opportunities to sit down in armchairs by the fireside.

Holiday entitlement accrues, of course, as Santa rides around the world’s rooftops. Parents should put an extra 12.07% of sherry in the glass and leave a note to explain that the extra sherry represents rolled-up holiday pay.

There is no legal entitlement to extra pay for working on a bank holiday.

Could Santa be self-employed? This is an uncertain area for employment claims and we’re sure many Christmases will go by before this is area becomes clear. As there are no hours mentioned in the ad, we presume Santa will be on a zero-hours contract, which indicates they are likely to be a worker rather than an employee.

Neither the NMW nor WTR apply to self-employed people. If so, ignore everything in this section!

Health and safety

Anyone thinking of giving alcohol to staff needs to know that they may end up sharing liability for any alcohol-related sleighing accidents that take place.

In fact, Santa’s job is a health and safety nightmare from the employment claims perspective. Chimneys may look roomy at the top but the health and safety people don’t let children or grown-ups go up or down chimneys these days.And we’re not even going to discuss compliance with the Work at Height Regulations 2005!

Merry Christmas from Hatton James Legal!

Could settlement agreement confidentiality clauses be banned?

The latest target of the #MeToo movement could be settlement agreement confidentiality. It is currently being reported that the Government is to examine use of NDAs in employment disputes. An NDA is a ‘Non Disclosure Agreement’, a legally-enforceable promise by an employee not to reveal, eg that they have suffered from discrimination or other breaches of employment rights. These are a key feature of settlement agreements.

This news comes on the back of a report published recently by the House of Commons’ Women and Equalities Committee. The key finding from the report is under the heading “A chilling effect? The silencing of victims”:

We are concerned that NDAs are being widely used to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye for fear of bad publicity. However, the confidential nature of these agreements makes it difficult to estimate out how many there are out there and to gauge how ethically they are being used. The main risks from unethical use of NDAs in silencing victims [are] that individuals

1. will not report serious wrongdoing to the police;
2. will feel compelled not to assist with relevant law enforcement investigations or prosecutions; and
3. will feel unable to speak openly and in the public interest about serious wrongdoing

thus inhibiting public awareness and debate.

The report is the result of a six-month inquiry prompted by various incidents reported in the press including the reported sexual harassment by Hollywood film producer Harvey Weinstein.

It recommends:

• A new duty on employers to prevent harassment, supported by a code of practice.
• Regulatory intervention backed by fines.
• Making it easier to bring a tribunal claim. It proposes extending the time limit for bringing a claim and greater compensation for discrimination.
• Making it a crime to misuse confidentiality clauses in settlement agreements and letting employees who have signed them report wrongdoing to bodies such as the Equality and Human Rights Commission.
• Collecting data on the extent of sexual harassment in the workplace.

It is estimated that 40% of women half that number of men have experienced unwanted sexual conduct at work. Only 40% of employers mention at induction the behaviour expectation and how to report breaches.

Whilst the committee considered that settlement agreement confidentiality clauses are a widespread problem that is not being taken seriously. Our experience is that employers are not proactive in preventing it but that they don’t in fact condone sexual misconduct when they come across it.

it is interesting that MPs are mooting extending the three-month time limit for bringing claims for sexual harassment. We find that this limit is short but that it rarely  causes problems for employees, who very rarely leave it too long to do something about it.

We don’t anticipate that settlement agreements will be affected as the report proposes. While in theory it is possible to have a law that allows parties to settle claims and potential claims whilst allowing them to talk about the circumstances that led to the disagreement, it is hard to imagine that industry would allow this change without making a big fuss. We believe that paying ‘hush money’ to claimants is something that is too ingrained in the system.

Gay cake and sexuality discrimination

Sexuality discrimination is outlawed both in the workplace and when buying goods and services.

In order to prove direct discrimination, the employee or customer must show that the business treated them less favourably than they would have treated others because of one or more of what are known as the protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

This article looks into the recent Supreme Court case nicknamed the ‘gay cake case’. It centred around a customer who ordered a cake with a pro-gay marriage message to be iced onto it. The customer, Mr Lee, is a gay man who volunteers with an organisation that supports a campaign to allow same-sex couples to marry in Northern Ireland. In 2014 he asked the bakers to bake a cake showing the Sesame Street characters Bert and Ernie with the headline ‘Support Gay Marriage’. The bakers refused.

Sesame Street clarify that Ernie and Bert are puppets, with no sexuality. They share a bed because of friendship and convenience.

The reason for the refusal was that the bakers are Christians who believe that “The only form of marriage consistent with biblical teaching is that between a man and a woman’.

Mr Lee complained about this incident to the Equality Commission for Northern Ireland (ECNI),which supported Mr Lee’s claim for direct and indirect sexuality discrimination (though this decision is only relevant to direct sexuality discrimination).

The courts initially ruled in his favour.  The bakers appealed to the Court of Appeal, where they lost and appealed again to the Supreme Court, the highest court in the land.

The Supreme Court found for the bakers. It found that they had objected to Mr Lee’s cake order because of the message, not because Mr Lee is gay. They could show this because they had previously made other cakes for him.

Conclusion

Many commentators believe that the court relied on a technicality in framing the question in this way. The causal link between the conduct and the reason for it may have been weakened.

The case will no doubt help many employers faced with discrimination claims, not just claims for sexuality discrimination. For example, where an employer refuses to hire or promote someone because they don’t like their foreign accent, they might argue that they would have hired or promoted them if they softened their accent. Where an employer fires someone because they don’t agree with their activities outside work (eg attending Gay Pride), this used to be a sure-fire case of discrimination. But now, we are not so sure.

Ernie and Bert were unavailable for comment.

By Zahid Reza

Image used under CC courtesy of See-ming Lee.

Not all disability-related poor treatment is discrimination

Dr Dunn accused his employer, the prison service, of disability-related poor treatment. He had been suffering from depression and a heart condition, both of which are disabilities under the Equality Act. He had absence because of depression for just over a month and after an occupational health report he returned to work.

But a few months later he applied for early ill-health retirement because of his depression. This was a good job with a large employer and they have an insurance policy in place to cover staff who find themselves unable to work because of ill-health. The employer delayed dealing with his application (later acknowledging that the process could have been handled better).

The prison service obtained a medical opinion after a few more months. His application for ill-health retirement was progressed but the letter setting out his entitlement was full of errors such as his length of service and his financial entitlement. This caused further delay until eventually he left.

He claimed that the process was discriminatory on the grounds of his medical condition.

Decision

The tribunal found that he had been both directly discriminated against and subjected to unfavourable treatment for a reason arising from his disability. But the employer appealed and the case went all the way to the Court of Appeal, which rejected his case, stating that although the ill-health retirement process required improvement, it was not so deficient that it could be classed as discriminatory.

Discrimination is often more about conspiracy than ‘cock-up’. Not every instance of bad treatment that is tenuously linked to a disability or other protected characteristic will give an employee a finding of discrimination.

Conclusion

A finding of direct discrimination requires that the treatment complained about must be ‘because of’ the disability. Eg that a manager sat on paperwork because they perceived the disabled employee as a pain in the neck. A finding of discrimination arising from disability requires that the treatment must be ‘because of’ something (like absence) that is linked to disability.

This ‘because of’ link is fairly strict. It is not enough that the disability provided the context or the treatment or that it wouldn’t have happened without the disability – the tribunal needs to make a finding about the state of mind of the manager(s) involved in the decisions.

This is what the tribunal forgot in this case and why the Court of Appeal stepped in to find for the employer.

The judgement stressed that justified grievances about disability-related poor treatment don’t automatically lead to a finding of discrimination. In this case, the employer hadn’t discriminated against the employee, actually being very sympathetic towards the employee’s situation.

Case report:Dr Peter Dunn v Inspectorate of Prisons
Image used under CC courtesy of Marine Perez

Professor sues Oxford University after “forced retirement”

A row over forced retirement has hit Oxford University, one of the most famous universities in the world. Famed for their elite facilities and higher-than-high standards, the Oxford University name commands respect for its quality and age.

However, a recent breaking story has put the esteemed University into the  headlines with a claim that the University has not respected the age of one of its professors. John Pitcher, aged 67, was the leading authority at Oxford University on Shakespeare. However, now due to what the University have described as an act to ‘promote diversity’ the professor has been forced into retirement at the age of 67.

John Pitcher has been at St John’s College for over 36 years and is said to be deeply disappointed by the manner of his exit. The Professor alleges that the University stated they would only allow him to remain if he was able to prove himself to be “indispensable” . After 36 years of good service this left the Professor feeling degraded and unappreciated.

Has this happened before?

It has. In fact it has happened before at the very same university. In an almost identical situation Professor Denis Galligan, a law professor successfully challenged his enforced retirement at the age of 67 (the same as John Pitcher.) Also, Peter Edwards who was John Pitcher’s senior at the age of 69 was also allowed to keep his job after an internal appeal.

John Pitcher has claimed that the university is simply trying to maintain the status quo by enforcing the previous retirement age of 67 that existed in the mid-1980s.  The University have claimed that the retirement was to “safeguard the high standards of the university” as well as “inter-generational fairness” with them looking to “refresh the workforce.”

What is the likely outcome?

Despite the fact that forced retirement at 65 has been banned since 2011, employers still have the right to set a compulsory retirement age if they can make a strong business case that if is in the interests of the business. The university have previously argued that they need to retire older staff in order to make room for junior academics, who would otherwise give up waiting and seek employment elsewhere. It is a complex legal argument and the likely result is hard to predict.

It will  be interesting to see which way the tribunal decides on this case.

By Samuel Tahir

Image used under CC courtesy of summonedbyfells

Sexual harassment at work

Sexual harassment at work seems to have become an epidemic. According to a recent BBC survey, ‘a third of women are harassed at work.’  For all the progress that has been made on achieving equality, sexual harassment has the potential to undermine it all.

Is it really that common?

According to the TUC a huge 53% of women are said to have been subject to sexual harassment at work. Most of them have admitted to not reporting the harassment.  The guilty party themselves may not consider their actions as sexual harassment, with the term ‘banter’ often being used to describe their words and actions.

Is it just women who are being harassed?

Although the primary target of harassment has been women, figures show the number of men being sexually harassed at work is rising. While many have suffered in silence, movements such as #MeToo have encouraged victims to step forward. And many of them are beginning to do just that.

What is sexual harassment at work?

According to the Equality Act, sexual harassment at work is any unwanted behaviour that is of a sexual nature or that is intimidating, hostile, degrading, humiliating or offensive. Or that it is related to the rejection of unwelcome advances.

How should victims respond?

Many victims of harassment are fearful of coming forward. They may fear they won’t be believed or the harasser may be their boss.  The advice is to attempt to resolve the matter informally but if it continues, or the informal approach is not appropriate it is best to inform a manager and decide whether to raise a formal grievance.

Victims often maintain a diary of when and where the harassment took place and any witnesses present.

What can the law do?

Where a grievance doesn’t produce results, a claim to an employment tribunal for sexual harassment can be brought within three months of the last act in a chain of sexual harassment. See our pages on sex discrimination and  tribunal hearings  for more details.

By Samuel Tahir

Image used under CC courtesy of Y-Lee

Carers and sleep-ins – an important development

There has been a huge recent development which sleep-in carers across the country will want to be aware of, potentially changing the lives of carers everywhere. The case has even excited the interest of the newspapers.

Should carers be paid the minimum wage during sleep-ins? There has been a wide range of academic opinion and conflicting cases. Some have argued that being paid the minimum wage whilst sleeping is outrageous. However, carers will rightly reply that they need be ready to wake up and provide support.

Some caselaw in the past supported the carers’ argument, saying that carers were entitled to the national minimum wage during sleep-ins, eg with night-watchmen, nurses answering non-emergency calls and care home managers. But the case of Tomlinson at the Court of Appeal has overturned them. The days of carers earning the minimum wage whilst they sleep are over.

Carers will now be classed as “available to work” under the National Minimum Wage Regulations. But they are not entitled to pay if “by arrangement” they sleep “at or near a place of work and are provided with suitable facilities for sleeping”. This would cover situations where someone is given a bed and told to sleep, but not ones where a mattress is put in an office and they are permitted to sleep.

So, what does this mean? Firstly, as we’ve already said carers will no longer be given the minimum wage whilst they sleep. Naturally, this will be seen as a source of frustration for many carers across the country as they are set to see their earning decrease significantly. But it’s good for charities such as Mencap and others that provide care, as the practice of paying a flat fee (£20 to £40) for a sleep-in has effectively been approved by the second-highest court in the land.

The courts haven’t completely removed the idea of carers being paid during sleep-ins. If carers are woken during the night then they are entitled to be paid for their work.

By Samuel Tahir

Image used under CC courtesy of Hugues.

Case report: Tomlinson-Blake v Mencap 2018 EWCA CiV 1641