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Entries in Redundancies (7)

Tuesday
Dec082015

Right to be Accompanied - Has the scope widened?

Under the Employment Relations Act 1999 and the ACAS Code of Practice on Disciplinary and Grievance Procedures, employees have the right to be accompanied by a trade union representative or a colleague at disciplinary and grievance hearings.  What should you do when an employee makes a request to be accompanied by someone else, such as a relative or a representative from an organisation other than a trade union?

The basic position is that the employee does not have any legal right to be accompanied by anyone other than a union representative or a colleague, so the request can be usually be denied.  However, the recent case of Stevens v University of Birmingham demonstrated that there are situations where you should consider allowing employees to be accompanied by someone elseMr Stevens was employed by the university as a Chief Investigator of clinical trials.  His contract was conditional upon him also having an “honorary appointment contract” with the Heart of England Foundation Trust (HEFT). He was subjected to disciplinary proceedings after allegations were made in respect of his clinical trials methods.  Mr Stevens asked to be accompanied at the disciplinary meetings by a Medical Protection Society (MPS) representative. The MPS is not a trade union and, as such, Mr Stevens’ request was refused.

Mr Stevens commenced proceedings in the High Court for a declaration of his rights and was successful. The Court concluded that, although Mr Stevens had no contractual right to be accompanied by the MPS representative, the university had acted in breach of the implied term of mutual trust and confidence by refusing his request.  The reasons given were as follows:

  1. The outcome of the disciplinary process was potentially career ending for Mr Stevens.
  2. It was not realistic for Mr Stevens to be accompanied by any of his colleagues as they were all involved in the process as witnesses. He was not a member of a trade union.
  3. Had Mr Stevens been subject to the HEFT disciplinary procedure (as opposed to the university’s) he would have been allowed to be accompanied by the MPS representative.
  4. A companion with a good grasp of the technical issues was needed.
  5. Other individuals who had been interviewed as witnesses had been allowed a wider choice of companion.
  6. The MPS is similar to a trade union.

This decision was specific to the facts of the case and the judge was careful to make it clear that in most cases it would be “perfectly fair” to restrict the employees choice of companion to a union representative or colleague. However, managers conducting disciplinary or grievance procedures should not be too quick to dismiss such a request out of hand. They should view the situation in the round and consider whether there are special circumstances (such as the employee’s first language being something other than English or the employee being disabled) which may justify the employee’s request.

Employees who have been denied the right to be accompanied can bring a claim for up to two weeks’ pay but, more significantly, employers who are found to have breached the term of mutual trust and confidence may run the risk of the employee resigning and claiming constructive dismissal, which could lead to far more serious financial consequences.

If you would like more information in relation to this update or if you need assistance with a disciplinary situation, please do not hesitate to contact Robyn Armes (robynarmes@greene-greene.com) (telephone 01284 717446) or Selene Holden (seleneholden@greene-greene.com) (telephone 01284 717436) in our employment team at Greene & Greene.  For more information on Greene & Greene go to www.greene-greene.com and follow @greenegreenelaw.

Friday
Jul112014

Tackling discrimination in the workplace

As employers you will (generally speaking) be liable for the behaviour of your staff whilst they are at work. This might be alarming in light of the recent case concerning the Metropolitan Police, which made the headlines last week.

In that case a manager was found to have formed a negative view of a more junior employee almost immediately after becoming her line manager, despite there being no objective grounds to justify this. In the absence of any other explanation, the employee thought that this was because she was black and the Employment Tribunal agreed, upholding her complaint of unlawful race discrimination against the employer.

There are, however, steps that you as an employer can take to protect your business from claims of race discrimination (and other forms of discrimination) and bearing in mind the potential for unlimited damages to be awarded in discrimination complaints, it is well worth doing so.

The key is to show that you did everything you reasonably could prior to the incident occurring to prevent the unlawful discrimination from occurring in the first place. This will require you to: 1. Have an Equality Policy in place and make sure your staff know about it. 2. Send out an annual reminder to staff about the Equality Policy and update them onany changes you have made. 3. Train all staff (particularly managers) on the Equality Policy. 4. Take complaints of discrimination seriously and deal with them properly in accordance with your established policies and procedures.

If you would like any further advice in relation to discrimination in the workplace, or if you would like to speak to us about equality training or introducing/updating an Equality Policy please do not hesitate to contact Robyn Armes (robynarmes@greene-greene.com) or Selene Holden (seleneholden@greene-greene.com) in our Employment Team at Greene & Greene. Twitter: @GreeneGreeneLaw

Thursday
Mar062014

Judicial Review – Employment Tribunal Fees

Back in summer last year we reported that, for the first time in Employment Tribunal history, employees will now have to pay a fee if they wish to bring a claim (see Selene Holden’s original blog here). As a result of this change to the law (which came into effect on 29 July 2013), the trade union UNISON launched a Judicial Review challenge on the grounds that the imposition of the fees was unlawful.

The Judicial Review hearing took place in October and November 2013 but the much anticipated Judgment was published during February.

During the hearing, UNISON ran various arguments against the regime, including claims that the fees made it “virtually impossible, or excessively difficult” for employees to exercise rights conferred by EU law and that women would be disproportionately affected. In summary UNISON contended that the introduction of fees was unjust and discriminatory. In defence, the Government argued that the fee remission arrangements should cancel out (or at least reduce) the impact on employees with limited means.

The High Court dismissed all UNISON’s challenges but made it clear that they considered that it was too early to assess the impact of the fees (since they were only introduced a few months previously) and that the challenge was premature.

UNISON have confirmed, via a press release, that they intend to seek leave to appeal the decision.

For the time being however, the fee regime will remain unaffected with one exception - as a result of the challenge, the Government’s Guidance has now been amended to make it clear that “the general position is that, if you are successful, the respondent will be ordered to reimburse you”. This should serve to reassure employees who believe that they have a strong case against their employers.

This article was prepared by Robyn Armes in our employment team at Greene & Greene. The contents of the article are for general information only but if you would like more information about Employment Tribunal fees, please do not hesitate to contact Robyn or Selene Holden at Greene & Greene for more information.

This article was prepared by Robyn Armes in our employment team at Greene & Greene. The contents of the article are for general information only but if you would like more information about Employment Tribunal fees, please do not hesitate to contact Robyn Armes or Selene Holden at Greene & Greene for more information.

Robyn advises on a wide range of contentious and non-contentious employment matters including: reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more.

Also find Robyn on:      Google +        LinkedIn

 

Thursday
Nov142013

Racing pundit, John McCririck, loses his claim for age discrimination against Channel 4

 

In a unanimous judgment, the London Central Employment Tribunal has ruled against the horse racing pundit, John McCririck, in his claim for age discrimination against Channel 4 and IMG Media Ltd.

Mr McCririck, who is 73 years of age,  had lodged the claim of age discrimination, reportedly for compensation of up to £3 million, after he was removed from his presenting role on Channel 4’s racing programme in 2012. Clare Balding, who is 42, now heads up the new presenting team.

The tribunal found that the decision to remove Mr McCririck from his presenting role was made in order to achieve the legitimate aim of attracting a wider audience to Channel 4’s horse racing broadcasts. 

The Hearing took place over 6 days and then the Tribunal took an additional 2 days to consider their decision before delivering the their judgment. During the Hearing, the Tribunal was:
  • shown extracts from televised series of ‘Celebrity Big Brother’ and ‘Celebrity Wife Swap’ in which John McCririck had appeared;
  • presented with a large number of press articles in which Mr McCririck had expressed his views on women, including one piece from the Daily Mail in 2005, where Mr McCririck is quoted as saying “God they moan. Headaches, periods, you have to put up with all this moaning when you employ women”; and
  • heard evidence from Mr McCririck himself and under cross examination he referred to himself as “an unpleasant person” and a “loud mouthed bigoted bore”.
Having heard all the evidence, the Tribunal determined that Channel 4’s decision was not related to his age but instead based on other factors, described by Employment Judge Lewzey as Mr McCririck’s “pantomime persona” and “bigoted and male chauvinist views”. The Tribunal concluded that Mr McCririck was “unpalatable to a wide potential audience”. With that in mind, the Tribunal concluded that Mr McCririck’s dismissal was not age related.

Whilst Mr McCririck has described the judgment as an “historic set-back” for older employees, in reality the decision is unlikely to have far-reaching implications. Each case which comes before a Tribunal will be decided on its merits and the judgments will be based on an assessment of facts and evidence available. In Mr McCririck’s case, Channel 4 were able to demonstrate to the Tribunal that age was not a factor in its decision to remove him from his presenting role. This highlights the importance of employers keeping good written records in the process leading up to dismissal.

 

This article was prepared by Robyn Armes in our Employment Team at Greene and Greene. The contents of the article are for general information only but if you have concerns about discrimination in the workplace, please do not hesitate to contact Robyn, Selene Holden or Jemma Jones  at Greene & Greene for more information.

Robyn advises on a wide range of contentious and non-contentious employment matters including; reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more .

Also find Robyn on:      Google +        LinkedIn

Wednesday
Nov062013

Sharon Shoesmith Settlement Pay-out

You may very well have seen the recent reports in the news of the £600,000 plus reported pay-out to Sharon Shoesmith, the Director of Haringey Council’s Children’s Services who was sacked in 2008 after the highly publicised and tragic death of Baby P.

But how does this reported six figure deal square with the fact that compensation for unfair dismissal in the Employment Tribunal should, in Ms Shoesmith’s case, have been capped at £74,200?

The reason for the magnitude of the pay-out is that this was not just a claim of unfair dismissal. It was actually a judicial review claim and therefore not subject to the usual Employment Tribunal caps. Ms Shoesmith challenged the way in which her employment had been brought to an end without any proper procedure and without the opportunity for her to respond to the allegations laid at her door.  The day after a damning OFSTED report into the case was published, Mr Balls made the decision to remove Ms Shoesmith from her post. This was a decision which she only found out about when Mr Balls announced it live during a press conference later the same day. The Council then dismissed her shortly afterwards, again seemingly without regard for the ACAS Code and without following due process. Ms Shoesmith’s case was largely based on her claim that she was not given the opportunity to respond to the case against her at any stage.

The Court of Appeal ruled in May 2011 that her dismissal had been unlawful and was therefore void, which meant that she was entitled to full back-pay and pension contributions for the intervening period. Given that Ms Shoesmith had previously commanded a salary of £133,000 per annum and was struggling to find alternative employment, it is perhaps not so surprising that the settlement ultimately reached was in the region of £600,000.  

It is to be noted that Ms Shoesmith was only able to launch her judicial review claim by virtue of the fact that her position at Haringey Council was a “statutory office”. Whilst this is not an option available to most employees, this case does serve as a timely reminder for employers of the importance of following a fair process when contemplating dismissing an employee.

This article was prepared by Robyn Armes in our Employment Team at Greene and Greene. The contents of the article are for general information only but if you have concerns about unfair dismissal or would like to know how to follow a fair procedure, feel free to contact Robyn, Selene Holden or Jemma Jones  at Greene & Greene for more information.

Robyn advises on a wide range of contentious and non-contentious employment matters including; reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more .

Also find Robyn on:      Google +        LinkedIn

Wednesday
Oct162013

Financial Penalties for Employers who lose at Tribunal

On Tuesday 8th October 2013, Jo Swinson (Minister for Employment Relations) announced that the government would be introducing financial penalties for employers who lose at Tribunal.

She stated that from April 2014 the law will be changed to allow Employment Tribunals to impose penalties, which will be payable to the Secretary of State rather than to the employee, in cases where workers’ rights have been breached and there are “aggravating factors”.

The penalty will usually be 50% of the amount awarded to the employee, however this will be subject to a minimum of £100 and a maximum of £5,000. It will also be possible for a penalty to be imposed in situations where no financial award is made to the employee. The penalty will be halved if the employer pays within 21 days.

Unfortunately, but perhaps not surprisingly, there is no definition  of “aggravating factors” in the legislation but some limited guidance has been provided by the Department for Business, Innovation and Skills which has suggested that Tribunals would impose penalties where "the breach involves unreasonable behaviour, for example where there has been negligence or malice involved” but suggests that genuine mistakes by the employer will not be penalised.

In practice, only time will tell how and when the financial penalties will be applied.

If you would like to know more about the introduction of financial penalties for employers, please contact Robyn Armes in our employment team at Greene & Greene for more information on robynarmes@greene-greene.com or telephone 01284 717446.

Robyn advises on a wide range of contentious and non-contentious employment matters including; reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more .

Also find Robyn on:      Google +        LinkedIn