We read in a recent news article about a bar manager who was forced to quit her job by the boss when she revealed that she was pregnant. The boss was quoted as calling her “fat and wobbly”. Then she and her partner were then told to move out of the gastro-pub accommodation where they had lived for 5 months. She lives in Solihull. Employment lawyers are bring a tribunal claim on her behalf and the case continues.
The employee claims that she was dismissed for becoming pregnant although her employer said she has left her job “by mutual consent”.
The employee, from Solihull, described how her boss responded by swearing and telling her not to expect maternity pay, then he told her that if she formally handed in her resignation he would pay her notice pay. She replied to say that she had never intended to resign and wanted to continue working in the pub until she started maternity leave.
The law says that pregnant women have rights to health and safety protection at work, which may be violated by a boss who subjects an employee to pressure and abuse. Also, pregnant women must be treated no less favourably than their male colleagues. They must certainly not be dismissed because they are pregnant. An employer who forces you to leave and dresses it up as a resignation or a departure “by mutual consent” will find that the departure is treated as a dismissal.
The employee in this case stands to be awarded injury to feelings of say £10,000 plus compensation for loss of pay whilst off work if she proves her case.
We at Hatton James Legal have fought many such cases in the past and have usually managed to extract settlements from the employers.
We will post an update here when it is available.
By Asam MahmoodRead More
Employment solicitors have been eagerly awaiting a Court of Appeal case on whether employees who have lots of disability-related absence should be given an easier ride in dismissals for absence.
Ms Griffiths, an employee with 30 years’ service, was off for 62 days straight with illness, during which she was diagnosed with a disability (post viral fatigue and fibromyalgia). See our article on disability discrimination for details of what this means.
As a result of this absence (plus a further few days for non-disability absence), her employer gave her a warning and she brought a claim for disability discrimination, claiming that the employer should make the reasonable adjustment of ignoring her disability absence so that she would not be under the threat of dismissal in the future. She also claimed that the warning was disability “arising from” her disability, which is a related concept. She was asking for an extension of the trigger in her case from 8 days in a rolling year to 20 days.
Her employer defended the claim on the basis that its policy envisaged that a manager had the discretion to make adjustments to the trigger points in cases of disability.
She eventually lost her case, but the judgment does help employees in a similar situation.
The case is complicated to understand but the Court of Appeal judgment boils down to this:
Does an attendance policy treat disabled and non-disabled employees differently?
Yes, said the Court of Appeal, overturning previous decisions. Caselaw had taken an approach that was too restrictive by saying that an attendance policy treats the disabled better if it allows trigger adjustments to be made. It doesn’t. A policy that an employee must maintain a certain level of attendance not to be subject to disciplinary sanction treats disabled people worse, since they are more likely to be off sick.
Is allowing more time off a “step to avoid disadvantage”?
The employer argued that allowing more time off was the opposite of a step allowing an employee to work. The Court of Appeal rejected this as too clever. It is a step allowing an employee time off temporarily with the aim of keeping them in work in the longer-term.
Was Ms Griffiths’ proposed extension of the trigger reasonable?
An employer only has to make ‘reasonable’ adjustments. The Court of Appeal reminded us that this is a decision for the Employment Tribunal, not for the Court of Appeal. It said that an employer is entitled to say, after a pattern of illness absence, that it should not have to accommodate absences any longer and can take into account the whole of the employee’s absence record (including disability absence) when making that decision.
It said that where a doctor reports that a disabled employee is likely to have only limited and occasional absences an extension of the trigger point, may be reasonable as an adjustment. Employees with more serious conditions should not expect this indulgence though.
A ray of hope
It then said something that is not so easy to understand. It pointed out that disability discrimination law is not just about reasonable adjustments but also about discrimination ‘arising from’ disability. An employer may not have a duty to extend a trigger point for an employee who takes unreasonable absence, but it may still be a breach of the law to dismiss for it!
“It would be open to a tribunal to find that the dismissal for disability-related absences was discrimination arising out of disability if it was not proportionate to dismiss”
We don’t understand what circumstances the Court of Appeal hand in mind when envisaging that it would be unreasonable to extend a trigger point but not proportionate to dismiss. Proportionality means not doing something (eg dismissing) when there is another option that would meet the employer’s aim of having a stable workforce. This seems to us the same thing really as acting reasonably.
Ms Griffiths lost her case because she was asking for too great an extension to the trigger point. Employers should make extensions to trigger points for disabled employees but they don’t need to be large extensions, especially in cases of ongoing absence (as opposed to long one-off absences in a diagnosis period).
Confusingly for employment solicitors, the Court of Appeal left it open to employees to claim compensation for disability-related dismissals if they are dismissed at the end of an attendance process and gave no guidance on when this might be the case. We can see an argument that it might be disproportionate to dismiss in a case where the employer’s (reasonable) failure to extend a trigger point has worsened a condition and caused an employee to take more time off than they would have done. Other than that, we shall have to see what subsequent caselaw brings.
Case report: Griffiths v DWPRead More
At Hatton James we like the whistleblowing provisions in UK employment law.
They provide a means for employees with less than two years’ service to bring employment tribunal claims for unfair dismissal even though they have less than two years service. And it provides another route to compensation for employees with two years’ service.
The coalition government tried to swing the law towards the employer by tweaking the hurdles that an employee has to jump through to bring a whistleblowing claim (public interest disclosure in the legal jargon).
This tweak was to make the employee prove that they acted “in the public interest”. This means that that they had to be thinking of someone other than themselves when they complained about, say, unfair management action. Before this, the employee could use whistleblowing laws to their advantage if they could just show that the employer’s behaviour fell below standard in his own case and they complained about this. The Government thought that this tweak would weed out a lot of complaints.
But clearly, the judges don’t like this tweak and are trying to reduce its impact.
The Employment Appeals Tribunal has held, in two recent cases, that a minimal amount of ‘public interest’ will do.
In one case, an employee who complained that the bonus figures for him and 100 colleagues were being reduced because the employer was not presenting sales figures fairly. The employment tribunal held that the disclosure was made with a reasonable belief that it was ‘in the public interest’, and the Employment Appeal Tribunal agreed.
In the other case four lorry drivers got together to complain that overtime was not being distributed fairly.
Unfortunately for employees, a dispute affecting an individual will not normally satisfy the “public interest test” but a disclosure relating to a relatively small group of people may do. We currently have two cases where we are arguing that the employees who complained about their treatment at the hands of the employer shouldn’t have their claims dismissed, on the grounds that the employer was acting the same way with colleagues.
In future, we will encourage employees who may have future employment tribunal claims to get together to make complaints; there is safety in numbers.Read More
Note: a subsequent legal change has affected the accuracy of this material.
If you cannot afford employment tribunal fees, there are fee remissions available:
Benefits-based – no fee
You don’t have to pay a fee if you receive:
- Income support
- Income-based jobseeker’s allowance
- Pension credit guarantee credit
- Income-related employment and support allowance
- Working tax credit but not also receiving child tax credit
- Dependants-based – no fee
No tribunal fees if your assets are less than £3k (you can exclude equity in your first home) and your gross annual income (including your partner’s) is no more than:
- Gross annual income for single person (couple)
- No children £13,000 (£18,000)
- 1 child £15,930 (£20,930)
- 2 children £18,860 (£23,860)
Where you have two or more children, the amount of gross annual income for the purpose of this remission is the amount in the table above for two children plus a further £2,930 for each child additional child.
Means test – partial fee
Take your monthly net income. Deduct from it the following to get your ‘disposable monthly income’:
£315 for general living expenses
£159 if you have a partner
£244 per child
And your contributions towards any fee will be approximately as follows:
|Disposable monthly income||You pay:|
|£50 or less||Nothing|
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
Discrimination questionnaires are being abolished in the employment tribunal process.
From April 2014, it is not as crucial to reply formally to questions about your discrimination practices and specific complaints that are sent by employees thinking about bringing a discrimination claim.
The purpose of discrimination questionnaires
The idea behind them was that the employer on the receiving end of an employment tribunal claim is faced with a dilemma – whether to spend time and money digging for information to answer discrimination questionnaires about pay, hours, bonuses, disability adjustments, some of which would normally be too sensitive to think about providing to an employee; or else risk a tribunal saying in a few months that you didn’t disclose enough so you must have had something to hide, which could tip the balance against you in a discrimination case.
The new régime is that there is no legislation saying that an employer has to respond to requests or face the legal consequences.
We don’t advise you to ignore discrimination questions (inside or outside the employment tribunal process) completely, since you want to come across as a good employer who takes equality seriously, but your answers can be brief now, especially when you know your employee is ‘trying it on’.Read More