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.
Image courtesy of Michael Coghlan used under CC
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 HopperRead More
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.
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 HarbourneRead 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 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**Read More
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.Read More
It has been reported that Argos are paying an extra 80p per hour to their staff on minimum wage as a Christmas bonus on the condition, that they do not take any time off sick from work in the lead-up to the busy Christmas season.
Could such an incentive lead to many employment tribunal cases being taken out against Argos?
Some employment lawyers are pointing out that it could be discriminatory against disabled employees, who are more likely to require time off and lose their entitlement to bonus. On the face of it, this looks like indirect disability discrimination.
Indirect discrimination is applying a “one size fits all” policy to all employees, but that has a greater impact on a particular group, such as the disabled.
Agency workers at Argos’s Basildon depot have been told that they will not benefit from the 80p per hour uplift if they call in sick even once.
Whether this is discriminatory or not depends on whether employers can avail themselves of the “justification defence”. This applies where the practice is in pursuit of a “legitimate aim” (which reducing staff absence clearly is) but also “proportionate” (which means no more discriminatory than necessary). It is this second limb of the test that some employment lawyers believe the scheme will probably fail, because the cost to the employee is an all-or-nothing one, not according to a sliding scale.
We think that the scale doesn’t have to be perfectly linear – so you wouldn’t need to say you lose 1% of the bonus for every 1% of absence. But, equally, the ability to lose 100% of the bonus for 1% of absence is apparently overkill. We would have advised Argos to apply the bonus penalty in, say, windows of 20% or 25%.
The risk is particularly the case for staff members who may be suffering from chronic illnesses. They might see the bonus scheme as not being within the Christmas spirit at all!
Illustration courtesy of Quinn Commendant, licensed under CCRead More
Employment lawyers in Birmingham and around the country have welcomed a recent Employment Appeal Tribunal (EAT) decision that highlights the dangers of contacting employees who have been on sick leave for a long time.
It’s a tightrope; employers should keep absent staff in the loop but not cause them distress by unwanted contact.
In this case of the EAT held that an employee was constructively dismissed because of the content of a letter she received from her employer while she was on sick leave.
The dangers include a claim for unfair constructive dismissal because the contact breaches the implied term that (effectively) the parties should not act unpleasantly towards each other.
The usual situation that is relevant is when an employee is off with a mental condition including depression or anxiety.
The employer in this case sent two letters to the employee, who responded saying that she was in “no fit state to communicate without breaking down”.
A month later, they sent another letter, proposing a meeting. But it wasn’t a meeting about her absence. They were trying a different tack – criticising her performance. But none of the complaints were urgent and most had already been dealt with. It was a cruel, tactical letter.
The employee resigned and claimed constructive dismissal and unfair dismissal, disability discrimination, harassment and other claims.
She won her claims for constructive and unfair dismissal.
This is a case of particular interest to two of our Walsall clients, who are in the same position at the moment; off sick and wanting to resign. The case emphasises how careful employers and HR need to be in this kind of situation.
Employers need to do some communicating with an employee during their absence; after it would be unreasonable to make them feel ignored. A common complaint is that they feel left out of the loop.
Employment lawyers warn employers to keep contact to a minimum and stick to their return to the workplace. Disciplinary and performance issues should not be broached, nor should other work-related issues unless they are urgent.
It is sensible to check that absence policies reflect this, to avoid managers making mistakes. In fact, it is good practice to ensure that employees who may be suffering from mental illness are only contacted by a named person, ideally in HR.
From the employee’s point of view, if they are wanting to leave with a potential claim for unfair constructive dismissal it is important to know that remaining off work sick is rarely helpful because the time away from the office reduces the likelihood of a breach of contract taking place. Often, for the sake of their health they should stay off sick, but for the sake of their claim they should get back to work.
Case report: Hodkinson v Private Medicine Intermediaries Ltd
Note: a subsequent legal change has affected the accuracy of this material.
The Labour Party has told the country its position on ensuring that employees have access to employment law rights.
This position is to do with Employment Tribunal fees. Labour has vowed that if they were to form the next government, they will abolish the current employment tribunal fees that were introduced by the Coalition Government in 2013.
Employment Tribunal fees currently stand at £250 to lodge most claims (simpler claims are £160) and £950 for the final hearing, regardless of length (£230 for simpler claims). Our clients often struggle to pay the hearing fee if they are not covered by insurance. Even if the fees are covered by insurance you usually have to pay it up front and claim it back from the insurers at the end of the case. The tribunal does warn you far in advance that the big fee will become due but not everyone budgets for it.
You don’t have to pay Employment Tribunal fees if your income and assets fall below certain levels. See our post on fee remissions here for further details.
If you win an employment tribunal case that you brought, the employer will (usually) be ordered to reimburse your tribunal fees. The judge has a discretion as to who shoulders the fees, and we have never seen a case where the claimant has won but not been reimbursed.
If a claim is settled, any fees paid are not returned, even if the settlement saves the tribunal the cost of the hearing, so our advice is to pay the hearing fee at the very last minute.
Since the introduction of these fees there has been a severe drop in claims made by employees. It has been estimated that two-thirds of would-be claimants are dropping their Employment Tribunal claims.
Employment law commentators say that this has harmed the rights of employees to have access to justice. They say that it is now too expensive to obtain access to justice.
by Jason Harbourne
Image courtesy of Garry Knight, licenced under CC
Sam Allardyce has been sacked from his new post as England manager, with a 100% performance record (after just one football match). And by “sacked”, we don’t mean after a disciplinary process, we mean “left by mutual agreement”, which is the way things are done in high-profile positions, so as to preserve dignity.
It stems from a newspaper investigation claiming he was selling advice on how to get around rules on player transfers. These rules exist to create stability in the football market. He wasn’t proposing to do anything unlawful.
The Daily Telegraph said he had had a meeting (with undercover reporters) posing as businessmen. He allegedly said it was “not a problem” to bypass rules on third-party player ownership and claimed he knew of agents who did it “all the time”. He then agreed to work for them on the side for £400k.
The Football Association has said that Allardyce’s conduct was “inappropriate” and Gareth Southgate has taken over as a temporary manager.
“He accepts he made a significant error of judgement and has apologised,” the FA said.
For the rest of us who are not England managers, the story is an interesting reminder that you can be dismissed for doing things out of work, that have nothing to do with work, if they could bring the employer into disrepute.
We have seen disciplinary dismissals for this reason where a lollipop lady was seen smoking marijuana and where an office manager gossiped about a director.
In both of those cases, the employer had taken the precaution of making “bringing your employer into disrepute” into an example of gross misconduct in its disciplinary policy. We have never seen a dismissal where it wasn’t, but we don’t think this would save an employee’s job. If you are an employee, you have a “duty of fidelity” towards your employer and are in a kind of relationship with them where you each implicitly agree not to devalue each other in the eyes of others without a good reason. It is part of the duty of trust and confidence that underpins every employment relationship.
We have on client at the moment who worked in a shop and was disciplined for being seen in work with a carrier bag of a competitor. We think that is going too far. And it is certainly the case that employers tend to see that sort of clause as a “catch-all” for many sorts of conduct which don’t really bring the employer into disrepute at all.
By Jason Harbourne
Image courtesy of Ben Sutherland
Birmingham employment lawyers Hatton James legal have issued a record number of tribunal claims in September 2016.
We issued five claims in September 2016, an average of more than one per week.
Managing partner Jaspal Singh said “it’s been a really busy period for us, when the sector as a whole is struggling, because of various government initiatives to reduce the number of claims going through the employment tribunal“.
Hatton James is among the foremost among Solihull and even among Birmingham employment lawyers. Jaspal said “most of our clients come through referrals or having searched online and seen that we are well-reviewed on the internet“.
The claims issued this month include:
- A new trainee dental nurse who resigned because of her manager’s nastiness after she pointed out problems with infection control
- An HGV driver sacked after 12 years when his licence was suspended for two weeks on medical grounds
- Two jewellers, one who was dismissed because she needed time off to recover from an old shoulder injury …
- and the other, who resigned because of rudeness when a new manager took over
- A factory manager whose employer wanted him to slow down more than he did, as he reached retirement and ranted at him in frustration
These are a typical mix of the claims that Birmingham employment lawyers see; unfair dismissal, age and disability discrimination and whistleblowing. A couple are what we consider to be open-and-shut cases; others are more risky, perhaps because the depend on what the witnesses or the paperwork will say. One of these tribunal claims is funded by a no-win, no-fee agreement, one is paid for privately and in the other cases the client has legal expenses insurance. In each case we feel that the employee really needs to issue a claim in order to protect their legal rights and obtain a settlement or compensation.
These claims come on top of our bread-and-butter work of guiding employees and employers through grievances and disciplinaries and advising on the terms and effect of settlement agreements.
In a future blog post, we’ll take one of these cases as a worked example and explain what happens from when the client walks in through the door.
By Jason HarbourneRead More