Holiday Rights

We all love holidays.  I am personally about to go on a particularly long one.  I would be extremely annoyed if my employer said no - you’re not allowed to go, but not only that, come 1 January when my new holiday year starts, your entitlement is lost. 

It is a good job therefore that the European Court of Justice steps in to make sure holiday rights are upheld. 

In 2 recent cases in the German courts, which I will simply refer to as Kreuziger and Shimizu, the German employers refused to allow employees to receive a payment in lieu of untaken annual leave when they had not taken it all during their employment.  In both cases, neither employee had actually requested paid annual leave - they had simply sat tight and waited for their employment to end, following which they asserted a right to a payment in lieu of untaken leave.  Mr Shimizu in particular asked for 51 untaken days’ leave dating back 2 holiday years.  The question was, if the individuals were entitled and had time to take their leave, should they still be allowed a payment in lieu when their employment ends?  This was referred to the ECJ.

The ECJ decided that a worker does not automatically lose accrued but untaken holiday entitlement at the end of the holiday year just because they failed to seek to take that entitlement.  Good news therefore for those who would rather work and receive payment in lieu. 

However, if the employer provides ‘sufficient information’ to the worker to encourage them to take holiday before the end of the reference period it might then be lawful to refuse to make a payment in lieu. 

We are not aware of any cases in the UK where it has been argued a worker should lose the right to payment in lieu because they did not try to take their leave before termination, but in theory the situation could arise.  Thank goodness I have booked all my holiday for the rest of the year. 

Daniel Kindell - Partner

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Bellman – more on vicarious liability

Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214

Following a recruitment agency’s Christmas party, to which all employees and their partners were invited, a number of the guests including Mr Major, the Managing Director (“MD”) of the agency, and Mr Bellman, an employee of the agency and the Claimant, continued their celebrations at a hotel bar where some of the employees were staying at the agency’s expense. This was not a planned extension of the party but the agency did pay for the taxi fares to get there and the majority of drinks.

The group continued to drink alcohol and discuss a variety of topics. At around 2.00am the conversation turned to work. 45 minutes later, when challenged about his decision to appointment a new employee, the MD summoned all present employees and lectured them about the fact that he was the owner of the company; he was in charge and he made the decisions. The MD said this new employee was in the correct place. The Claimant, in a non-aggressive manner, verbally challenged this. The MD proceeded to punch the Claimant twice in response, causing him traumatic brain injury.

The High Court held that the agency was not vicariously liable for the MD’s actions. It considered the drinks at the hotel were impromptu. They were not a seamless extension of the Christmas party. Those present when the incident occurred were there in the context of “entirely voluntary and personal choices” – they were there to engage in a heavy drinking session. The fact that a work-related topic was raised was not enough.

The Court of Appeal has now disagreed. The CA has confirmed that the correct approach was set out by the Supreme Court in Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 which is the following two stage test:

1.   What “field of activities” has been entrusted by the employer to the employee? This question is to be addressed broadly.

2.     Was there a sufficient connection between the “field of activities” and the wrongful conduct to make it right for the employer to be held vicariously liable under the principal of social justice?

The CA agreed that the MD’s role had been widely drawn. He was the “directing mind” of a relatively small “round the clock” company with no set hours and responsibility for all management decisions. He spent much of his time working on the agency’s business and was in overall charge of all aspects of it.

The CA took the view that there was a sufficient connection between the field of activities and the assault. Of significance was the manner in which the assault arose. After 45 minutes of discussions about business matters the MD believed his authority had been challenged. He then purported to exercise his managerial control by summoning his colleagues and lecturing them about his authority. When he felt his authority was challenged again he asserted the authority granted to him by the agency, by punching the Claimant. Even if the MD had removed his managerial hat at the beginning of the impromptu drinks, he chose to don it again and misuse his position when his managerial decisions were challenged.

Lord Justice Irwin was keen to emphasise that the facts of this case were unusual and it was not authority for the proposition that employers became insurers for violent acts by their employees.

Since this judgment the approach in Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 has once again been confirmed as correct and adopted in WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339.  In this latest case the CA has upheld the view of another High Court judge, in finding that Morrisons are liable for the unlawful actions of an employee who deliberately leaked employee personal data.  Interestingly, that liability attached despite the fact that the employee’s motive was to damage the employer. The answer, says the CA, if employers are concerned about the costs associated with this sort of problem, is to insure against it.

The law on vicarious liability has moved on enormously in recent years. The focus on the connection with work and the principle of social justice – is it right to hold the employer liable for the employee’s act? – has now replaced the old tests and many of the old cases would now be decided differently. Whilst there will still be cases where an employer might escape liability because the employee is truly “on a frolic of their own” it seems that they will be fewer and further between.

Tony Rippon - Employment Solicitor

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Fairness: with knobs on

There is a really interesting report this week of a decision by the Employment Appeal Tribunal that looks at a number of current issues about fairness both in general terms and procedurally, the approach of the ETs in making decisions about what is fair and the relevance of the right to be accompanied at a disciplinary/grievance hearing.  Some useful guidance and all worth thinking about.  The case is Talon Engineering v Smith.

Mrs Smith was dismissed because of an email exchange in which she described an “unnamed” colleague as a “knob” and a “knobhead”.

General unfairness

The Employment Tribunal took the view that the derogatory reference to a colleague was essentially “venting to a close friend”.  The colleague was unnamed.  The course of email correspondence between the Claimant and her friend showed that the two of them shared “lots of personal information in very chatty and informal emails”. 

The Judge said “it is not clever and it is not funny… but the Tribunal was entitled to conclude that it did not amount to serious gross misconduct that puts the business reputation of the Respondent at risk”. 

I think that is a pretty sensible conclusion given the context.

Substitution mindset

The Respondents argued on appeal that the Tribunal had failed to judge reasonableness by the standard of the reasonable employer.  Instead, they said, the Tribunal had substituted its own view for the views of the employer.  Tribunals are not allowed to do that. 

The Tribunal had thought that dismissal was a “gross overreaction” – bearing in mind, not least, that the Claimant had 21 years’ service with an unblemished record.  

The Judge quoted an earlier authority (Kefil) to this effect: “substitution mindset is all too easy to allege… employers who do not like the result which a Tribunal has reached… seek to argue that the very fact of the result… must indicate a substitution”. 

It is refreshing to see that here EAT was clear: “the Tribunal has been punctilious in assessing matters by reference to a reasonable employer and not their own views”. 

This is a reminder to employers that not every decision on fairness that goes against them is going to be appealable to EAT on the basis of “substitution mindset” – a useful and indeed refreshing reminder. 

The right to be accompanied

The Respondent had adjourned the disciplinary proceedings on one occasion because the Claimant was ill. 

The Claimant sought a further adjournment, for two weeks, because her trade union official was unable to attend on the new date. 

The Respondents declined the second request.  The ET took the view that the Respondents had acted in a manner that was “entitled and hasty”. 

It seems that the mere fact of this failure to adjourn would have rendered the dismissal unfair in and of itself.

That is also a useful decision for Claimants and Trade Unions – it gives real teeth to the right to be accompanied.  I think one has to have regard to all surrounding circumstances and I think that here the fact that the adjournment was sought for a relatively short period (a fortnight) was relevant.  The Judge in the EAT made it clear: sometimes the employer simply cannot be expected to wait any longer.  Nevertheless, some useful guidance on adjournments in this decision.

There is also something in the case about “Polkey” reductions but I have probably said enough for now. 

An interesting, robust and straightforward decision that tackles quite a few of the practical issues that we see in our employment team on behalf of Claimants on a day to day basis. 

Paul Scholey - Senior Partner

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How not to draft an email to your colleagues….

As employment lawyers, we see a lot of emails and social messages that even surprise us in terms of content and language. However, the recent Australian recruitment company owner’s email to his colleagues pretty much takes the biscuit:

“Morning guys,” it began. “Quick observation that is really getting on my tits. 1: Endless ping pong during CORE BD business hours – especially from people with no money on the board. 2: Not even bothering to put a suit on or pretending to look the part (again with no money on the board). 3: Some of you are taking more sick days than Tom Hanks during the dying days of Philadelphia...again with no money on the board (and being a cost to the company and me personally). 5 or 6 of you are REALLY GETTING ON MY TITS in this office – you are a cost, you are demanding and exhausting and you don’t even look like you are trying….if 5-6 of you don’t pick up your game massively you will see your sorry asses fired and slung out the door in under 3 months”.

Unpleasantly threatening in every way. Once it went viral, his apology followed but even that left a fair bit to be desired – “I do value you all, but I am sure you get my sentiments in wanting you to reach your full potential….”.

World Cup 2018 – How to support your team whilst staying on-side

With the largest sporting event in the world less than a month away, now seems an apt time to address how to avoid falling foul of your employer’s polices during the World Cup.

On the off chance you haven’t already seen them, the match times have already been released this year and the majority of them fall within normal working hours - starting at 13:00, 15:00, 16:00 and 19:00.  This is obviously not ideal for football fans, but gives the possibility of watching the match in working hours. This can be seen as both a blessing and a curse, and I’ll discuss some of the reasons why below:

1.     Do I have a right to watch my country’s team play?

The short answer is no (unless your contract states otherwise – highly unlikely!). Although some employers will let their employees watch certain games you do not have an express right do to so. However, if, for instance, your employer allows England fans the afternoon off to watch the match but doesn’t give the same offer to supporters of other countries when their teams are playing this could potentially be seen as race discrimination under the Equality Act.  

2.     Can I be disciplined for my behaviour on a staff social?

It’s a fact that a lot of staff social events involve alcohol and sometimes there can be a tendency towards inappropriate behaviour when drinking is involved.  I would suggest this is especially true during the World Cup given the excitement of the event and the high emotions (usually disappointment, for England fans) involved. This gives rise to the question of whether or not your employer can sanction you for your behaviour during a staff social? The answer to this question is yes, they can. If your employer organises an outing or event their normal rules on appropriate behaviour will apply to staff who attend it. There are many examples of staff members acting inappropriately at work events and facing disciplinary proceedings because of this, so it is worth bearing in mind!

3.     Can I show support for my country’s team at work?

The World Cup is one of the largest sporting events in the world, bringing together 64 countries who fight for a spot in the final 32. Many different nations with their own customs and traditions, it is a great chance for employees to share their culture with one another. However, due to the competitive nature of the event some supporters can tend to get a little carried away. It goes without saying that it is a good idea to be respectful about the other countries in the competition. Negative comments and stereotypes are often found to be discriminatory in law, whether they are intended to be or not, and can lead to disciplinary action or even dismissal. It is also worth mentioning that some employers have a “neutrality policy” which may prohibit employees displaying flags and various other national symbols in the office; if in doubt, ask your employer before doing so.

James Battle - Legal Assistant

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Sexual Harassment at Work – How to Start Fixing the Problem

Last year, a BBC survey revealed that half of British women and a fifth of men have been sexually harassed at work. And with momentum generated by the #MeToo campaign, sexual harassment has been in the spotlight in recent months.

The Equalities and Human Rights Commission has now published its new report, on 27 March 2018. 

The report shares evidence gathered from around 1,000 individuals and employers between December 2017 and February 2018 and shows that some employers simply aren’t protecting their employees from sexual harassment at work. 

The report looks at how sexual harassment is dealt with by employers and recommends several improvements.

The report found a lack of consistent, effective action on the part of too many employers and the EHRC is now calling on the UK Government to show clear leadership and implement their recommendations to eliminate sexual harassment in every British workplace.

So how do they propose that sexual harassment at work is eliminated? They suggest that through transforming workplace cultures, promoting transparency and strengthening legal protections, sexual harassment can be eliminated.  

The key recommendations made by the EHRC for the government to consider are as follows:

• Introduce a statutory code of practice on sexual harassment and harassment at work, with employment tribunals to have the power to apply an uplift to compensation in harassment claims of up to 25% for a breach of any mandatory element of this new code;

• Employers should all have and should publish their sexual harassment policy in an easily accessible part of their external website;

• Legislation should be introduced making any contractual clause which prevents disclosure of future acts of discrimination, harassment or victimisation void;

• Safeguards should be implemented to restrict the use of confidentiality clauses preventing disclosure of past acts of harassment;

• The limitation period for harassment claims in an employment tribunal should be extended to six months from three;

• If a claim is brought out of time, the burden of proof should be on the employer to state why the deadline should not be extended, rather than on the employee as it is currently;

• Interim relief provisions for harassment and victimisation claims should be introduced, similar to those for protected disclosure dismissals;

• Employment tribunals should be allowed to make recommendations about the wider workforce, rather than solely about the employer's treatment of the individual claimant;

• Reinstatement of protection from third party harassment though without the requirement to show two previous incidents;

• Re-introduction of the statutory questionnaire.

The Government has responded to the EHRC's report by condemning all forms of workplace harassment and promising to keep matters under review. 

But will they fix the problem? Or at least try? The recommendations above are a good start however the Government is rather busy at the moment and the EHRC’s recommendations may tumble down the list of priorities. It’s therefore doubtful whether any regulation or other action will come from this report. 

Hannah Boynes - Solicitor

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Disability Employment Gap

The gender pay gap has been hitting the headlines recently but what about the disability employment gap?

Under the Equality Act 2010 a disability is defined as “a physical or mental impairment which has a substantial and long-term adverse effect on [one’s] ability to carry out normal day-to-day activities.”

The disability employment gap is the difference between employment rates of disabled and non-disabled people. According to the Labour Force Statistics published in summer 2017, the disability employment gap remained unchanged at 31.3 percentage points.  That means that there is a gap of roughly 30% between disabled and non-disabled individuals in employment. 

Prejudices, coupled alongside a lack of understanding by employers, have contributed to the employment gap. Employers ought to be aware that the Access to Work scheme is available and is a publicly funded employment support program set up to provide funds to help more disabled people start or stay in work.  

Under the Equality Act 2010 there is a duty for employers to make reasonable adjustments for disabled workers. The support provided by Access to Work covers interventions that go beyond this duty, and grants are assessed on an individual basis. On 20 March 2018 the Government raised the cap on funding by £15,000 so that the annual cap is now £57,200.

In 2015 the Government said that they will aim to halve the disability employment gap and this was taken to mean by the end of the Parliament. However, the Government has clarified that there is no specific time period on this pledge but it has talked of a “10 year strategy.”

Rightly so, gender inequality has been brought to the forefront for challenge. However, the disability employment gap is equally as important and ought to demand the same attention for change. In the words of the late Professor Stephen Hawking “we have a moral duty to remove the barriers of participation, and to invest sufficient funding and expertise to unlock the vast potential of people with disabilities.”

In a climate where businesses are regularly highlighting labour shortages or employment skill gaps, let them be reminded that there is an additional 30% potential workforce available to be utilised.

Kamran Sadiq - Solicitor

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Carillion ‘ruined my life’- The secret blacklisting war with union activist

The UK's second-largest construction company, employing around 20,000 people in the UK, buckled under the weight of a whopping £1.5bn debt pile.

Dave Smith, a successful Engineer who had the pick of engineering jobs throughout London, was employed by Carillion.  In 1998 he was driving a 4 x 4 vehicle but by 2000 he could not even get a job as an Engineer, despite the longest building boom this country has ever known. He even stopped receiving calls from employment agencies.

All this because he was brave enough to complain about the dangers of asbestos on construction sites and attempted to improve health and safety conditions through union activism. Sadly, for Dave this resulted in selling personal belongings, defaulting mortgage payments and borrowing from friends and family.

The Carillion blacklisting scandal was aired on BBC Radio 4. The company had been paying The Consulting Association to keep files on Dave and circulate a blacklist, with his name, among 40 construction companies. The blacklist had thousands of names on it, meaning Carillion had been complicit in one of the biggest industrial scandals in British history. Dave was one of the “lucky” ones to be affected - unfortunately for others this outrageous scandal left hundreds of workers homeless, without family and some sadly took their own lives.

Dave’s ongoing battle with Carillion meant he was able to help found the Blacklisted Support Group and take Carillion to Court but following the demise of Carillion Dave and many others who suffered at the hands of the company may never see the directors face legal action.

Not a penny of public money should be given to the bosses of Carillion -if the government has another magic money tree hidden away somewhere it should bail out the NHS - not Carillion or their bankers.

http://www.bbc.co.uk/news/business-42853895

Rizzwana Bashir - Trainee Solicitor

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