Employment Law Updates. Farrukh Husain Employment Law Solicitor

Transcription

1 Employment Law Updates Farrukh Husain Employment Law Solicitor

2 Zero Hours Contracts Protection The regulations that came into force on 11 Jan 2016 provide that: any dismissal of a zero hour contract employee is automatically unfair, if the principal reason is that s/he breached a contractual clause prohibiting him/her from working for another employer no qualifying period is required to bring such an unfair dismissal claim; and, it is also unlawful to submit a zero hour worker (note: worker not employee) to detriments if they work for another employer in breach of a clause prohibiting them from doing so.

3 April Fools and other Changes The new National Living Wage comes in to force. The minimum wage for workers age 25 and over will be 7.20 from 1 April. Public sector employees will be required to repay a tapering proportion of a qualifying exit payment if they return to the public sector within a period of 12 months under regulations - expected to come into force on 1 April. Govt s Counter Extremism bill employers to monitor employees for extremists. Trade Union Bill Makes strike action less likely: 1. Higher proportion voting for strike action will be required for those working in important public services eg transport and health. 2. Agency workers can be used to cover for striking workers.

4 Case Law: Working Time Federacion de servicios privados del sindicato comisiones de obreras v Tyco Integrated security and another (ECJ) Itinerant workers with no usual place of work, will have their time spent travelling from and to home for the first and last customer visits of the day counted as working time. Note: This judgement applies solely to working time legislation not minimum wage laws. Edwards and another v Encirc Ltd [2015] IRLR 528 EAT: EAT decides that working time includes attendance at Union meetings. Plumb V Duncan Print Group: Working Time Regulations allow a worker to take annual leave within 18 months of the end of the leave year in which it was accrued, where the worker was 'unable or unwilling' to take holiday entitlement because of sickness.

5 Right to be accompanied to a Disciplinary hearing Stevens v University of Birmingham (High Court) The University breached its implied duty of trust and confidence when Dr Stevens was not allowed to be accompanied at a disciplinary investigation by his Medical Protection Society representative. Eleftheriou and another v Arriva London North Ltd ET/ /2014 & ET/ /2015 An employer's veto on a trade union representative accompanying its employees to disciplinary or grievance hearings led to breaches of the right to be accompanied, an employment tribunal has found.

6 Can Companies claim discrimination? An LLP Company can claim direct discrimination where it suffers a detriment because of the age of someone with whom it is associated. The company providing IT support to an organisation and has its services terminated because of the belief that the computer technicians are 'too old to keep up with the times', then that company may now present an associative direct discrimination claim.

7 Religious Belief Discriminating against religious belief: An employment tribunal decides that the dismissal of a Christian employee, for expressing a faith-based view that homosexuality is a sin, was directly and indirectly discriminatory. In a 2012 case, Adrian Smith v Trafford Housing Trust gay marriage was a step too far :an employee posted the statement was unfairly dismissed The High Court found that the employer could not reasonably have been brought into disrepute. employer s equal opportunities principles should respect the rights of the employee who made such comments, which were a reflection of his religious views, to the same degree as the rights of those who might be affected by his comments.

8 Disability Discrimination A person (P) has a disability if (a) he has a physical mental impairment and (b) the impairment has a substantial and long-term adverse effect on his ability to carry out normal day to day activities: Saad -v- University Hospital Southampton NHS Trust: Saad was a depressive with general anxiety order but: 1. The impairment did not have a substantial adverse, nor long-term, affect on his ability to carry out normal day to day activities and 2. whether or not an employee is disabled is a question of fact to be determined by an Employment Tribunal. There have been other cases whereby depression and anxiety have been held to be a disability

9 Cutting discriminatory A companies policy of denying long-term absentees access to corporate s meant he was not made aware of the company s new share purchase plan and so was unable take advantage of it. ET Decision: the company substantially disadvantaged the employee by denying access to s. Failure to make reasonable adjustments so that he could be kept informed of developments. The tribunal found that the employee had been subjected to discrimination arising from his disability.

10 Is being obese a disability? An obese employee has won a disability harassment claim after being taunted about his weight by a work colleague: so fat he could hardly walk and he was so fat that he could hardly feel a knife being stuck into him. The claimant had an excessive body mass index of 48.5 ET: held that he had been harassed for a reason which related to his disability, namely his morbid obesity condition. Obesity can constitute a disability in certain circumstances if it impairs a person s ability to work.

11 Negative reference = Discriminatory Pnaiser v NHS England and Coventry City Council. Disabled person s job offer withdrawn after former employer s negative reference received. sickness absences arose out of disability which played a part in that negative assessment CONSEQUENTLY unlawful discrimination had occurred.

12 Indirect Discrimination CHEZ Razpredelenie Bulgaria AD Case C-83/14 A person can claim indirect race discrimination by association with a group that has a protected characteristic, even where they do not themselves share that protected characteristic. Claimant ran a shop in mainly Roma area though not Roma herself. To avoid tampering with electric meters by Roma the meters were placed very high and could not be read by customers. The claimant considered this to be discriminatory based on ethnic origins since she suffered by her association with the Roma.

13 Race Discrimination and caste In Chandok and another v Tirkey (2014) EAT rejected appeal to strike out claim for caste discrimination: Facts: The claimant, a domestic worker, had not been paid the national minimum wage, made to work 18 hour days and sleep on the floor. Received 183,773 for failure to pay minimum wage. although caste is not currently included in the protected characteristic of race in S.9(1) of the Equality Act 2010 (EA 2010), many of the facts relevant in considering caste in many of its forms might be capable of doing so, since ethnic origins in s.9(1)(c) has a wide and flexible ambit, including characteristics determined by descent. Remedies hearing Dec 2015: 35,000 for injury to feelings of 27,500 for direct race discrimination and 7,500 for indirect religious discrimination. personal injury award for 13,500 was also made for the psychiatric injury sustained by Mrs Tirkey as a result of her treatment by the Chandhoks. In total, Mrs Tirkey was awarded 83,762.61, in addition to the 183, previously awarded for her National Minimum Wage claim.

14 Mockery for being foreign A tribunal finds that a Polish employee suffered racial harassment when she initially did not object to a colleague's mockery, but it then continued after it was made clear it was no longer acceptable. One manager referred to Polish workers as "f***ing Poles" and "the f***ing Polish" on several occasions while the claimant was present.

15 Zero hours and sexual harassment S v Britannia Hotels Ltd and another (2015): Her line manager frequently touched her and asked her about her sex life. She made an informal oral complaint to another manager which was not followed up. Claimant was initially reluctant to raise a formal complaint, for fear that her line manager would reduce her hours, but then did proceed formally. ET:The employment tribunal, decided that the claimant s initial reluctance to complain was because of her zero hours contract status, upheld her sexual harassment claim. She believed that she was reliant on her line manager to give her shifts.

16 Social media pitfalls Whitham v Club 24: Team leader comments about colleagues led to dismissal: I think I work in a nursery and I do not mean working with plants and after a response from one of her friends: Don t worry, takes a lot for the bastards to grind me down.lol Disciplinary letter alleged gross misconduct relating to conduct and confidentiality but the disciplining officer could not explain what the breach of confidentiality was.

17 Disciplinary letter short comings ET:- failed to make the employee aware of the case against her since there was a failure to supply statements obtained by the investigatory officer. The internet usage policy only safeguarded against breaches of confidential info during worktime. The comments of the employee were mild who had a good record, there was no damage to other business relations and so the dismissal was unfair.

18 Social media and fair dismissal The British Waterways Board (t/a Scottish Canals) v Smith : Facts Smith was a standby employee to deal with emergencies and could not drink alcohol during this time: In 2013 the employer found out about Smith s negative FB postings: On standby tonight so only going to get half pissed LOL. Smith was dismissed after a disciplinary process due to breakdown in mutual trust and confidence. EAT:British Waterways had followed a fair procedure and that it had a genuine belief that Mr Smith had been under the influence of alcohol while on standby.

19 Scenario questions 1. A is told by her manager that he would like to take her paint balling and states I would love to shoot you Syrian style, since you lot like that sort of thing. When the manager asks A if her family are in ISIS, A tells him she finds his remarks offensive and not to make such comments in future. The manager laughs and tells A it is a free country and he can ask her what he likes and caresses her face. 2. B copies his colleague A s accent and says he sounds and looks like one of the Iraqi asylum seekers he saw on TV. A is not an Iraqi or an Arab but is mixed race Afro-Caribbean and English. 3. C is told by his manager that he is not moving up a pay upgrade because he is a fat pig who is full of S t, and a post benefit foreigner. C suffers from diabetes and depression.

20 Scenario questions 4. A has received an invitation by letter to a disciplinary meeting for being rude to his students. A is confused about the allegations against him and requests details in advance of the disciplinary meeting but is not provided with any. A s employer refuses to allow his union rep to attend the meeting. A becomes depressed and goes off on sick leave without attending the disciplinary hearing. However the disciplinary hearing is not suspended and continues so A is sacked in his absence for gross misconduct based on rudeness to students. 5. B is mocked by his colleague because he is slightly built and belongs to the Indian warrior caste which his colleague finds amusing and jokes about frequently to the visible embarrassment of B. B is called a spear chucker. 6. Earls Court Advice Centre bids for a contract and after attending the bid interview are told that the contract would not be appropriate for the advice centre to deliver since the services are to young people and will in part be delivered online. All the Centre s staff are middle aged.

21 THANK YOU FOR ATTENDING! Appointments can be booked for employment law advice on Fridays. We look forward to working with you and improving client lives.