The Equality Act 2010 protects employees from being victimised. The employee must show that they were subjected to some negative treatment, as a result of a protected act (one of which is doing something for the purposes of discrimination).
Wrongful dismissal is essentially a claim for breach of contract, generally brought by employees who allege they weren’t paid their notice pay entitlement. If an employer legitimately dismisses an employee for gross misconduct, they don’t have to pay the notice period.
This article looks at the recent case of Francesca Carpos, who claimed she had been wrongly dismissed and victimised when she was dismissed on the spot for circulating a memo which allegedly brought her employer’s name into disrepute.
Dr Carpos was a bassoonist and lecturer at the Royal Academy of Music. Dr Carpos had done PhD research into discrimination in the classical music industry. One of her findings were that the term ‘gypos’ was often used for session violinists. She wrote a memo to students, advising them on how to fit in and get a job. The memo included:
“….Be discreet; what’s on tour stays on tour. Become familiar with shared understanding of anecdote, caricature, stereotype and jokes. Google them and look on YouTube, if this is not your culture. For example, you may hear terms like this: Pond life = (string players). Gypos (short for gypsies) = violinists specifically…”.
The memo was circulated to around 800 students, and as a result a letter was sent to the Student Union, accusing Dr Carpos of ‘encouraging the development of a toxic environment in which musicians are complicit in the harassment of and discrimination against colleagues’.
Dr Carpos was dismissed for gross misconduct, that is bringing the academy into disrepute.
Dr Carpos didn’t accept this and lodged a claim of wrongful dismissal and victimisation. Dr Carpos argued that the it couldn’t be true that she was dismissed because of the outpour of hysteria from the student body. She must have been victimised for a prior discrimination complaint.
Dr Carpos won her claims and was awarded over £180,000 in compensation. In relation to wrongful dismissal, the tribunal concluded that the academy’s decision to dismiss her on grounds of gross misconduct was wrong and so she was entitled to her notice period. In relation to victimisation, the tribunal concluded that the dismissal was so obviously trumed-up that it really had to do with her having brought a previous complaint about discrimination.
Curiously, the judge also indicated that if Dr Carpos was eligible to bring an unfair dismissal claim, she may well have succeeded in that, too.
This case serves as a stark reminder that employers shouldn’t be pressured into making knee-jerk reactions because they may inadvertently (1) wrongfully (or unfairly) dismiss; and (2) discriminate against or victimise the employee.
By Zahid Reza
Image used under CC courtesy of Becs @ Catching SundustRead More
For the first time, an employment tribunal will decide whether veganism is a ‘philosophical belief’. That will decide whether or not it can be protected under by the discrimination laws (the Equality Act 2010) for the purposes of discrimination, like a religious belief.
Jordi Casamitjana (a vegan) claims that the League Against Cruel Sports dismissed him because he raised concerns that they invested their pension fund in companies that do animal testing.
Jordi has lodged a claim for discrimination citing the ‘philosophical belief’ (which he defines as not eating, wearing or consuming any animal products) in ethical veganism. His employer has refuted these allegations, stating that Jordi’s dismissal was for gross misconduct.
The tribunal has called a hearing in March 2019, to determine whether veganism is a philosophical belief.
What is a philosophical belief?
There is no specific definition of philosophical belief in the discrimination laws. However, caselaw has given guidance, which includes:
1. The belief must be genuinely held.
2. It must be a belief rather than a mere opinion.
3. It must be a fairly serious belief (about an aspect of human life and behaviour).
4. It must be worthy of respect and not conflict with human dignity, nor the fundamental rights of others.
5. It must “have a similar status or cogency to a religious belief”.
6. It need not be shared by others.
7. It may be based on science.
In our view, the crux is whether Jordi’s veganism beliefs have similar status to that of religious beliefs. Some believe that it wont’ this standard because it is likely to be interpreted as a ‘lifestyle/dietary’ belief, rather than a belief which touches all aspects of life, like religions tend to be.
Our view is that Jordi’s veganism belief in ‘not eating, wearing or consuming any animal products’ is capable of being categorised as a belief rather than an opinion or viewpoint. As ‘ethical vegans’ eat a plant-based diet because of beliefs about how humans should treat animals it is likely, in our view, that this part of his case will succeed.
It will be fascinating to see what the tribunal’s decision is in March 2019, as if veganism is classified as a philosophical belief then it could open the floodgates to many different ways of thinking being protected under the Equality Act 2010. Examples found by the tribunals already have included beliefs on climate change.
Laws tend to take on a life of their own once they leave parliament. In bringing in these laws, the government said that it did not share the view that climate change or veganism were covered by the legislation. But the courts have said otherwise about views on climate change, fox hunting and even the “higher purpose” of public service broadcasting.
By Zahid Reza
Image used under CC courtesy of veganmotivation.comRead More
Harassment at work commonly leads to employment tribunal claims for discrimination. The employee must show that an individual suffered:
(1) unwanted conduct (that is related to a protected characteristic (i.e. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation);
(2) that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is quite broad and basically covers any untoward behaviour.
We look at a recent case which clarifies that a successful case for harassment at work depends on the specific facts.
Mr Evans started working for Xactly Corporation as a sales rep from 4 January 2016. During his employment, Mr Evans was called a ‘fat ginger pikey’ at least once. Mr Evans had strong links to the traveller community, was diabetic and sensitive about his weight. He was dismissed for poor performance.
He then brought a claim for harassment against Xactly in relation to the ‘fat ginger pikey’ comment, on the grounds of disability and race. He said that ‘fat’ related to his disability and ‘pikey’ related to ethnic origin. The employment tribunal found that whilst in theory the comment was potentially a discriminatory and harassing comment, it wasn’t harassment, because the comments:
- weren’t ‘unwanted’ (because Mr Evans actively participated in the office banter);
- didn’t have the purpose of violating Mr Evan’s dignity, or creating an intimidating environment; and
- didn’t have that effect (because he wasn’t offended).
Mr Evans appealed to the employment appeal tribunal (EAT). The EAT ruled that the tribunal was entitled to come to this conclusion because harassment claims are highly fact-sensitive and context-specific.
This case reminds us that although an employee who puts up with harassment at work for years and even joins in with it doesn’t necessarily find it unwanted, their reaction to potential unwanted conduct will be taken into account (i.e. their level of participation, or the extent to which they appeared to get offended) and this can be critical in establishing whether or not harassment has taken place.
Before an employee brings a harassment claim, it is helpful to keep a diary, register displeasure (eg with a grievance) and ideally get colleagues on board to support their account.
Case report: Evans v Xactly.
By Zahid Reza
Image used under CC courtesy of Gabe AustinRead More
An employee who wants to claim constructive dismissal must show (1) that their employer has committed a serious breach of contract; (2) that they have not’accepted’ the breach (acted as if it didn’t matter to them) but resigned in response to it; and (3) do it promptly.
A recent High Court case looked at whether an employee who resigns on notice is seen to have accepted the breach or not.
Three employees accused their employer Neon of breaching their contracts of employment. Particular breaches alleged included:
- Failing to pay salary increases and discretionary bonuses awarded to them;
- Making the salary increases and bonuses conditional on signing new terms and conditions; and
- Removing commission agreed at the time of recruitment.
They alleged these breaches amounted to a serious breach of contract entitling them to resign. They resigned on notice. They claimed that Neon:
- Made unjustified findings of misconduct in a disciplinary process; and
- Unjustifiably reported that misconduct to the regulator.
Two out of the three claimants responded by resigning (during their notice period) with immediate effect. They brought claims of wrongful dismissal and breach of contract; the third stayed an employee and brought a claim of breach of contract for salary.
The High Court held that Neon committed a serious breach of all three of their employment contracts; that the first two accepted that serious breach, that they were constructively dismissed (in effect, sacked), and that they wrongfully dismissed (which means entitled to their notice pay).
The High Court interestingly commented that some breaches had been ‘accepted’ by the first two (who resigned giving their notice periods of 6 months and 12 months). The judge thought that it was unfair to allow them to reserve their right to accept the breach of contract, while continuing to work for Neon for such a length of time.
This case shows that to claim constructive dismissal, if an employee resigns with notice in relation to a big breach of contract, and has a notice period that is 6 months or more, this may very well amount to an acceptance of that breach. So, it appears employees with longer notice periods are better off resigning with immediate effect (or giving three to five months’ notice) if they intend to bring a claim that relies on a finding of constructive dismissal.
Case report: Brown & Anor v Neon Management Ltd & Anor
By Zahid RezaRead More
It is well established that an employee has a right to appeal the outcome of a disciplinary hearing. We look at some recent caselaw which raises the question of whether a successful appeal following the disciplinary appeal procedure can reverse what was originally a dismissal.
Mr Patel (the claimant) started working for Folkestone Nursing Home Limited (the respondent) as a Care Assistant in 2008. In 2014, he was charged with:
- Sleeping on duty; and
- Falsifying the records of residents by pre-recording that they slept through the night.
Mr Patel attended a disciplinary hearing on 28 March 2014. His defence was that he was sleeping during his break and that pre-recording records was a common and accepted practice. The outcome letter found both allegations proved and he was dismissed with immediate effect for gross misconduct. But his appeal overturned the dismissal. The appeal outcome letter referred only to the first allegation. As it didn’t address the second one allegation, it was unclear whether this finding had been overturned. He wasn’t happy and did not return to work.
He lodged a claim for unfair dismissal (among other claims) in the employment tribunal (ET). The ET held that the successful disciplinary appeal did not revive Mr Patel’s contract of employment. The employment appeal tribunal (EAT) overturned this decision, stating that Mr Patel ended up not dismissed, so he couldn’t bring a claim for unfair dismissal.
He took the case to the Court of Appeal (CA).
The CA held that the effect of a contractual rights to disciplinary appeals is that if successful, the appeal revives the contract and extinguishes the original dismissal.
This decision confirms that where there is a contractual appeal procedure and an employee succeeds in using it to overturn the original sanction of dismissal, their employment is revived and the original dismissal vanishes.
It is widely believed that the position is the same for a non-contractual appeal procedure (i.e. contained only in a handbook), however the law is unclear on this point.
Tactics for employers and employees
For employers, they can use their disciplinary appeals process as a safety net to rectify what may otherwise have been an unfair dismissal. Employees have a good incentive to appeal even if they don’t want their job back – it can cost them up to 25% of their compensation if they win an unfair dismissal case.
For employees, it is advisable to appeal in order to avoid a 25% reduction in compensation but should they do this when they don’t want their job back? Yes. They should say that they are only asking their employer to overturn the decision about guilt, to clear their name or for an apology, but not to re-instate them. If the employee does get their job back, they get it with back-pay to the date of the dismissal.
An employer faced with this attempt by an employee to have their cake and eat it should refuse to hold disciplinary appeals on that basis. It is a no-win situation for them.
The employer could even try granting the appeal and take a chance on reinstating tactically. After all, they know the employee doesn’t wish to return to work and they might resign, potentially leaving them without a tribunal claim, though this tactic is untested.
Just to be clear, a dismissal that is upheld remains a dismissal at the original date. An employee who is up against a time limit can’t argue that the date of dismissal was the date of the appeal. And an employee can’t have the best of both worlds by putting in a tribunal claim and then appealing – if the appeal is successful, the unfair dismissal claim will fail.
Finally, if an appeal results in a finding of guilt but demotion and even a demotion is out of proportion with the allegation, then this provides the right to resign and claim constructive unfair dismissal.
By Zahid Reza
Image used under CC courtesy of Reading TomRead More
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 Ken’s gross misconduct dismissal from a national supermarket after 35 years of service.
Ken was the Store Manager. One aspect of his duties was overseeing the processing of stock, and more particularly the recording of stock that couldn’t be sold at full price (‘disposals’). Ken would review disposals made by his team, and where possible re-code the items to remove them from the disposal category. This was what he had been trained to do.
Ken’s employer accused him of wrongly re-coding stock that could be sold, as stock that couldn’t be sold, losing the store money and giving it inaccurate figures. They claimed he was doing this to improve his KPIs and therefore his bonus. He was suspended, and an investigation was carried out. Ken received a letter inviting him to a disciplinary hearing, only now he was accused of losing, whether directly or indirectly (via his staff) £20,000. Ken was dismissed, but on appeal this was replaced with a final written warning and a demotion. Ken rejected the demotion and resigned with notice.
We found that Ken’s employer failed to get to grips with the issues; they didn’t investigate his claim that he had followed training to the letter and so the employer failed to get the decision right. They ignored the fact that his bonus didn’t depend on these KPIs. And they failed to understand that if he miscategorised stock, it made one statistic go higher but the other one go lower, a neutral net effect.
We helped Ken bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer behaved unfairly both in terms of their disciplinary procedure and the severity of the sanction – a gross misconduct dismissal that would be on his record.
He got a job at another supermarket, where he is happy, but at half his previous salary and his losses would be over £150k over a couple of years.
We had a strong hunch that the employer would not want to put this gross misconduct dismissal case before a judge and advised him to hold out to the bitter end and go to a tribunal hearing if necessary. Just before the final hearing, after some heavy negotiation, Ken received an offer near to the maximum that the law allows.
By Zahid Reza
Image used under CC courtesy of Polycart.Read More
Being harassed at work is in the news more than ever before following the recent allegations about Harvey Weinstein, Kevin Spacey, Bill O’Reilly, Morgan Freeman and others.
The trade union Prospect recently carried out a study surveying 7,000 workers (40% female, 60% male) across a range of industries. The women reported that:
- 35% of them had experienced being harassed at work (62% of women aged under 30);
- 27% had received suggestive remarks and sexual jokes;
- 25% had received unwanted comments about their appearance;
- 17% reported unwelcome sexual behaviour ; and
- 14% had suffered unwanted touching, hugging or kissing.
According to the study (which confirms the results of a TUC study two years ago), the victims of sexual harassment are more likely to be under the age of 30, with the suggestion that victims are too intimidated to report sexual harassment to their employer.
Comments made by participants included:
- ‘On the sexual harassment complaint I was made to feel like I was to blame and didn’t feel like I had much support.’
- ‘I have lost a job after bringing up sexual harassment from a manager.’
Prospect said the study showed sexual harassment was ‘endemic in all parts of the economy’.
This study illustrates that despite this issue rearing its head year after year, female employees are still being harassed at work. Employers can take steps to help reduce sexual harassment in the workplace, including:
- Extra training for all staff; and
- Creating a policy making it clear that sexual harassment will not be tolerated and appointing specific individuals to complain to; and
- Keeping records of reported sexual harassment and doing annual audits so to keep this issue on the radar.
Women report being harassed outside work as well as being harassed at work and so sexual harassment is a societal issue as much as it is a workplace issue. With much of society spending a quarter of their lives in the workplace, eradicating sexual harassment at work would be a big step towards eradicating it elsewhere.
By Aneesha Ali-Khan
Pimlico Plumbers have unsuccessfully appealed to the Supreme Court to overturn the decision that Mr Smith, a plumber, had worker status (rather than being self-employed).
Mr Smith had been working with Pimlico Plumbers for around 6 years. He suffered a heart attack in January 2011, and asked Pimlico whether he could reduce his hours to work 3 days instead of 5 days a week. Pimlico in response refused his request, took away his van and dismissed him. He took Pimlico to the Employment Tribunal (ET), claiming he was (1) unfairly dismissed, (2) discriminated against on the grounds of his disability; and (3) that he was entitled to holiday pay (among other claims).
One of the key issues the ET had to consider was whether Mr Smith was an employee or a worker. The truly self-employed can’t bring discrimination claims.
Mr Smith’s contractual documentation stated that:
- He was an ‘independent contractor’;
- He was not obliged to accept work;
- He should complete a minimum of 40 hours a week;
- He must provide his own materials and tools; and
- He must drive a branded van, wear a uniform and carry an ID card.
In addition, Mr Smith was VAT registered, submitted invoices to Pimlico and filed his own tax returns.
The courts have constructed a number of tests to help them decided whether or not someone is an employee. There are 4 elements:
– An individual must have a contract (express or implied)
-An individual must carry out the work personally
-There has to be a ‘mutuality of obligation’ between the two parties
-The employer must have control over the work that the individual does.
The ET decided that Mr Smith wasn’t an employee, but he did have worker status (a kind of intermediate category between employee and self-employed).
Pimlico appealed to the Employment Appeal Tribunal, and the Court of Appeal, however both appeals were unsuccessful. Pimlico then appealed to the Supreme Court.
The Supreme Court rejected Pimlico’s appeal because of its findings:
- There was personal service – Mr Smith’s contract clearly required him to perform the services personally to Pimlico; and
- Pimlico was not a client or customer of Mr Smith – Pimlico had an obligation to offer Mr Smith work when it was available, and he was contractually obliged to keep himself available to work up to 40 hours on five days each week for Pimlico’s assignments.
- Mr Smith’s contract stated that he could not accept work from customers or potential customers without their approval first – he was not in control.
This means that Mr Smith is entitled to holiday pay, to pursue his claim for disability discrimination in relation to his heart attack and areas of pay.
This area of employment status has been in legal flux for a long time, and this case doesn’t provide any further clarity. However it provides the latest warning to employers to fully evaluate the relationship between them and their staff when deciding whether staff are employees, self-employed or workers.
By Aneesha Ali-Khan
Image used under CC courtesy of Eli DukeRead More
Constructive dismissal is when an employee resigns in response to a major breach of contract by the employer; there has been a recent caselaw development which informs the decision how to resign. See this page for more on this topic.
One of the elements an employee must show for a successful claim is that they resigned promptly after the breach, otherwise an Employment Tribunal (ET) may conclude that the they ‘affirmed’ (accepted) the breach of contract and so could not have resigned ‘in response’ to it.
Commonly the employee complains that the employer has breached the implied term of mutual trust and confidence. This is conduct showing that the employer intended no longer to be bound by the employer/employee relationship. An employee who asks an employment solicitor how to resign will be told they can use either (1) one major breach; or (2) a series of events ending with a ‘’last straw’ (which does not need to be significant).
Often, the employee lets a number of events slide, before claiming that the last one has broken the camel’s back and that the weight of the straw as a whole has broken the camel’s back. The question is how this fits with the idea that once a breach has been ‘affirmed’, does that take it off the camel’s back so that the employee can’t rely on it?
A recent EAT case looked at this question.
Mrs Mackenzie started working for Pets at Home in 2007 as an Assistant Manager. In 2014, she told Pets at Home that she was pregnant. Shortly afterwards she applied for promotion, and after an assessment, she failed in her application. In January 2016 whilst on maternity leave, the promotion opportunity became available again, and she applied for the role but again failed to clinch it after undergoing an assessment. She let this go (‘affirming’ the breach). In March 2016, Ms MacKenzie found that a less experienced Assistant Manager (whom she had previously managed) had got the position. She found this to be the ‘last straw’ and resigned in response.
The Employment Tribunal (‘ET’) accepted Ms MacKenzie finding out a lesser experienced colleague was promoted as the ‘last straw’ and found the failure to promote her on both occasions was discriminatory and amounted to Pets breaching the implied term of mutual trust and confidence.
Pets at Home appealed to the Employment Appeal Tribunal (‘EAT’).
The EAT found for Pets at Home. It thought that the ET had failed to consider whether the two acts of discrimination had been affirmed or not. It found that the first failure to promote was affirmed (over a year before reisignation) and the second one too (three months previously). In this context, resigning ‘promptly’ means within a week or two.
The EAT concluded that a ‘last straw’ could not revive an earlier breach of contract that had already been affirmed.
The position is that letting a breach of contract slide is affirmation. After that point you can’t rely on it to resign on a stand-alone basis. But in the employment context, a number of minor events and breaches of contract can be ‘revived’ (brought in play for the last straw principle by being put back on the camel’s back) in a number of circumstances, for example if ‘letting it slide’ was conditional, or if they can be seen as part of a ‘course of conduct’.
The EAT has clarified that if an employee does not complain about a breach of contract by the employer, they lose the right to resign and bring a constructive unfair dismissal claim. Those wanting to know when and how to resign should use it or lose it, as they say.
Case report: Pets at Home Ltd v MacKenzie
By Zahid RezaRead More
ACAS is a public body which provides a free and impartial information and advice to both employers and employees on all aspects of workplace issues and employment disputes.
Before bringing an employment dispute to the tribunal, every would-be claimant must first notify ACAS, who will then attempt to act as mediator so the dispute can be resolved informally before reaching the stage where the claimant submits a tribunal claim.
ACAS have recently published their latest statistics (covering April 2017 to December 2017). Between April 2017 and July 2017, they received around 1,700 notifications per week. Since the scrapping of the ET fees (in July 2017), notifications have surged to 2,200 per week. This is an increase of around 30%.
Why has there been an increase? Looking at how the statistics have risen sharply since the scrapping of ET fees, shows that clearly the abolition of fees is the dominant factor. However, looking a little deeper brings to the surface some interesting questions that might be answered with time. These are:
- When the fees were in place, did employers tend to rely on the apparent safety net of fees pricing out employees access to justice, as an alternative to complying with employment laws?
- Are disgruntled employees taking advantage of the ‘free shot’ at taking their employers to ET, simply to try and induce a settlement?
- Are employees educating themselves better now they know there is no financial barrier to justice? And is this education persuading employees to bring more claims?
Claims that have progressed through the ACAS notification stage to the tribunal have increased by 57% when compared to the same period in 2016. This isn’t surprising, as in 2016 employees and former employees would have had to pay tribunal fees to proceed with an employment dispute. As this is no longer the case, the removal of this barrier simply means they have less to lose by bringing a claim.
The sharp rise in ET claims shows that employers must ensure they comply strictly with employment law, because if not employees have generally got nothing to lose by taking their employment disputes to the tribunal.