Oldest person wins age discrimination claim

Why wasn’t it religious discrimination when an orthodox Jewish nursery fired a teacher for living with her boyfriend?

How to deal with a ‘ghosting’ employee

This article first appeared in People Management

‘Ghosting’ is a term which came from the world of online dating. It describes what happens when someone ends a relationship with someone suddenly, and without explanation withdraws from all communication.

In an employment context, ghosting happens when an employee stops turning up for work and doesn’t respond to the employer’s attempts to contact them. They don’t actually resign, but sooner or later the employer reaches the conclusion that the employee isn’t coming back.

Although employees going AWOL is something most employers have come across from time to time, the subject is particularly topical at the moment because economists in the US have started to notice an increase in millennials ghosting their employers. And as people tend to say, when America sneezes, Britain catches a cold, so it seems likely an increase will happen here too.

According to the US economists, employees are much more likely to ghost their employers when they are in transient temporary work and when employee engagement is low, so the rise in casual and zero-hours work seems likely to be a factor.

What can UK employers do?

As a starting point, if someone doesn’t report for work without explanation, their absence would normally be unauthorised and therefore unpaid. However, even if they are not being paid, their absence is often very inconvenient, and employers understandably want to be able to take control of the situation rather than letting it continue indefinitely.

Unfortunately, UK law does not have a concept of ‘self-dismissal’, where an employer can deem a dismissal after a certain period of time based on an employee’s lack of contact.

In the UK, if an employee is in fundamental breach of contract (such as being absent without authorisation and not responding to the employer’s contact), that breach would need to be formally accepted by the employer, and the resulting termination would be a dismissal by the employer, not a resignation by the employee. Understandably, the employer would normally argue that the breach of contract has terminated the employee’s employment with immediate effect, so that no notice pay would be payable.

For employers, the best approach is usually to try to contact your absent employee by as many different communication methods as you can – for example, by phone, text, email, recorded delivery (keeping records of all the attempts to contact them, and giving a clear and reasonable deadline for response). This is a good reason to ensure your staff contact details are kept up to date.

If you do not receive a response by your deadline, you can terminate employment. That termination will be a dismissal, rather than a resignation, so you will need to bear in mind a fair procedure and the Acas Code (particularly for employees with two years’ service or more). It is always best to take advice before proceeding with any dismissal.

Case law shows that a dismissal can only take effect when it is actually received by the employee. Unfortunately, employees who ‘ghost’ their employers often change their address without letting their employer know. Therefore, employers should ensure the dismissal of a ghosting employee is communicated by as many methods as possible, to try to minimise the risk of them claiming not to have received it (and therefore not having been dismissed).

It can also be worth including a clause in employment contracts to specifically state that written notice will be deemed to have been received by the employee a certain number of days after it has been sent to their last known address, but at the moment those clauses are relatively untested in an employment context.

If you are dealing with a ‘ghosting’ situation then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at enquiries@pureemploymentlaw.co.uk.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Extended protection for new mothers?

A recently announced government consultation (which is running until 5 April) is seeking views on extending redundancy protection for new parents.

Research commissioned by the Department for Business, Innovation and Skills and the Equality and Human Rights Commission in 2016 found that one in nine mothers reported they felt forced to leave their job, and 77% said they had a negative or possibly discriminatory experience during pregnancy, maternity leave and/or on return from maternity leave. A report published by the Women and Equalities Commission in 2016 showed that the number of expectant and new mothers who felt forced to leave their jobs had almost doubled since 2005. The consultation seeks views on proposals to address these concerns.

Currently, under the Maternity and Parental Leave etc. Regulations 1999, an employer must offer a suitable alternative vacancy (where one exists) to a woman on maternity leave before making her redundant. The proposal is to extend this protection for 6 months after the mother returns to work.

The consultation also seeks views on whether the protection should be extended to those taking adoption leave or shared parental leave.

However, this raises several questions, such as – what happens if the mother takes a period of annual leave before returning to work? Or, if the parents take shared parental leave which can be taken in blocks, returning to work in between taking periods of shared parental leave?

The consultation is also seeking views as to when the redundancy protection should start, e.g. should it start from when the woman notifies her employer that she is pregnant, rather than from the start of maternity leave.

In my view, the proposals as they stand are unlikely to make much of a difference in practice, and it is already unlawful to make someone redundant because of their pregnancy or their maternity leave. However, if the proposals are adopted then employers will need to be more vigilant when carrying out redundancy processes and be aware of employees who may be entitled to be offered suitable alternative vacancies in priority over others.

Whilst the consultation doesn’t ask any questions about extending Tribunal time limits for pregnancy and maternity related claims, it is something that the government has said it will consult on, and views on this are currently being sought by the Law Commission in its consultation.

We will of course keep you up to date with developments.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Non-disclosure agreements in employment disputes

You may have seen the media expressing its outrage at the fact that employees who were settling disputes and getting paid settlements from their employers were being required to sign ”non-disclosure agreements”. The impression given by the media was that there was something underhand in this, and that these “NDAs” were being used to silence victims of sexual harassment.

I have been drafting Settlement Agreements (or Compromise Agreements) on behalf of employers, and advising employees on the terms and effect of them, since they were first introduced in 1992. I honestly cannot recall ever seeing a Settlement Agreement without a provision requiring the parties to keep the terms of the settlement confidential. The same applies to virtually every settlement of an employment dispute through the services of ACAS. So are these so called non-disclosure provisions necessary or desirable?

The disadvantage, at least from an employee’s perspective, is that the confidentiality provision will prevent them publicising inappropriate behaviour by employers or colleagues. That said, often the allegations against the employer or a colleague are just that – they have never been tested in any court or Tribunal, and whilst some are undoubtedly genuine, some may well not be.

MPs are now looking into the use of what they are describing as NDAs, with the Women and Equalities committee holding an enquiry into the use of NDAs in settling employment disputes. The committee has been told that their use is very widespread – something any employment lawyer had known for years! The committee has invited representations from interested parties so that they can make a recommendation as to the use of such clauses going forward.

Clearly, the use of non-disclosure or confidentiality clauses can cover up a multitude of sins, but of course the employee does not have to sign the Settlement Agreement. Obviously the reason employees sign Settlement Agreements is that they receive an additional payment from the employer, and if employers were not able to require that the fact and terms of the Settlement Agreement remain confidential, then it is likely that employers would be far more reluctant to offer settlements to departing employees. The impact of this would be significant. First, employers would be likely to offer far fewer Settlement Agreements which would of course mean that thousands of employees would lose out. Second, the number of disputes which would escalate to be resolved in the Employment Tribunals would increase substantially, and the Tribunal system is already creaking with the pressure of its workload which has increased massively since fees were abolished in 2016.

So, are confidentiality provisions necessary in Settlement Agreements? In theory, no – it is perfectly possible to settle disputes without requiring confidentiality. In practice, for most employers, yes. The majority of employers, and indeed employees, do not want details of their employment disputes or any settlement agreed between them being in the public domain. Is there a halfway house? I suspect it would be difficult to find a solution which would be acceptable to most employers, so it will be interesting to see what conclusions the Women and Equalities committee reaches.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Are Uber drivers workers? Our take on the latest decision

Yesterday afternoon the Court of Appeal handed down its judgment in the case of Uber v Aslam and others. I actually found it a surprisingly interesting read, although that may just be me (!) – if you decide to take a look then be warned, it is 70 pages long!

The media headlines were all about the fact that yet again, the courts had concluded that Uber drivers are ‘workers’ and therefore entitled to paid holiday and the National Minimum Wage.

Now it is of course true (as we have covered in our previous articles) that Uber has lost the case at every stage so far – the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal. Therefore in many ways the Court of Appeal’s decision is not a surprise.

However, it is important to point out that Uber has been granted permission to appeal to the Supreme Court, so the matter is far from over yet. Also, as Uber have pointed out, the Court of Appeal’s decision was not unanimous – the decision was on a 2 to 1 majority basis, as one of the Court of Appeal judges (Lord Justice Underhill) said that he would have found in Uber’s favour. The outcome at the Supreme Court is not therefore as clear-cut as some people would have you believe.

In particular, Lord Justice Underhill pointed out that terms set out in the contractual documentation between the parties should only be ignored if it does not genuinely reflect the basis of the relationship between them. In this case, he felt that it was different from the Autoclenz case (which we covered in our previous articles here and here) in that there were no grounds to ignore the contract that states that the drivers are genuinely self-employed. He also referred to the similarities between Uber’s relationship with its drivers and that of a minicab firm which acts as an intermediary between passengers and drivers. He felt that the Court of Appeal’s majority decision goes too far, and that if the drivers need protection (because of their unequal bargaining position when compared with Uber), then that would be a matter for Parliament to deal with by way of legislation.

So the case goes on – it is expected that it could take many months for it to be heard by the Supreme Court, but we will of course update you as soon as there is any more news.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

The fairness of summary dismissals under zero-tolerance policies

If an employer has a zero-tolerance policy, and the employee breaches this, can the employer fairly dismiss for gross misconduct without considering any mitigating factors?

In the case of Arnold Clark Automobiles Ltd v Spoor, Mr Spoor had 42 years’ service and a clean record. He lost his temper with a colleague, and admitted grabbing him, but denied any physical violence.

Mr Spoor apologised to his colleague, and the incident was dealt with informally by their manager. However, HR decided that a formal investigation was required, as there was an allegation of physical violence. The company’s disciplinary policy included physical violence as an example of gross misconduct.

Mr Spoor was summarily dismissed following a disciplinary process, and his internal appeal was unsuccessful. The company’s position was that Mr Spoor’s long service and prior clean record were not relevant, because they took a zero-tolerance approach towards physical violence.

Mr Spoor brought claims for unfair dismissal and breach of contract in the Employment Tribunal, and his claims were upheld. The Tribunal found that the company’s investigation was outside the range of reasonable responses open to a reasonable employer (the views of Mr Spoor’s managers as to the seriousness of the incident had not been sought or taken into account). The Tribunal also held that no reasonable employer would have dismissed Mr Spoor, ‘having proper regard to all of the circumstances including his previous record’.

The company appealed to the Employment Appeal Tribunal (EAT), unsuccessfully. The EAT found that whilst there was physical violence which amounted to gross misconduct under the company’s policy, there was no evidence that the company did actually operate a zero-tolerance policy on physical violence. The EAT also noted that the company policy said an employee will “normally be dismissed with immediate effect” in cases of gross misconduct, but this suggested that the company had a degree of discretion, which they failed to exercise in Mr Spoor’s case.

The lesson for employers is that even if you say you have a zero-tolerance policy, it is still important for you to carry out a thorough and reasonable investigation and consider all of the circumstances, including mitigating factors. It is also important to make sure that employees are treated consistently in similar situations (see our previous article on the importance of consistency here).

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Protection against discrimination for vegans

As you may have seen in the news, a case is being brought against the League Against Cruel Sports which is believed to be the first time that someone in the UK has claimed discrimination on the basis that they are a vegan.

The Equality Act 2010 includes ‘philosophical belief’ as one of the nine protected characteristics that give protection against unlawful discrimination. The Claimant in the case, Mr Casamitjana, is arguing that his veganism meets the definition of philosophical belief and that he was dismissed because of it after raising concerns about the ethics of some of his employer’s pension funds. The League Against Cruel Sports denies that this was the case.

According to the Vegan Society, the number of vegans has quadrupled in the last 4 years and now stands at approximately 600,000 in the UK. Mr Casamitjana describes himself as an ‘ethical vegan’, not just a dietary one. This means that his veganism is about avoiding animal exploitation in every aspect of his life.

Many of the press articles have described this as a ‘landmark’ case, but actually in my opinion it is fairly obvious that ethical veganism would meet the definition of a philosophical belief. As Peter covered in our article earlier this year, case law requires that the belief in question:

  • is genuinely held
  • is more than an opinion or viewpoint;
  • relates to a weighty and substantial aspect of human life and behaviour;
  • must have a sufficient level of cogency, seriousness and importance;
  • must be worthy of respect in a democratic society;
  • must have a similar status to a religion;
  • need not be shared by others; and
  • may or may not be based on science.

When you consider that the courts have already found that a belief in climate change amounts to a philosophical belief (the case of Grainger v Nicholson), it is difficult to see how anyone could argue that ‘ethical veganism’ does not pass the test. In fact, the Equality and Human Rights Commission actually includes veganism as an example of a philosophical belief in its guidance!

Of course, that does not necessarily mean that Mr Casamitjana’s claim will succeed. The League Against Cruel Sports have said that he was dismissed for gross misconduct. Even if veganism is protected as a philosophical belief, the Tribunal will still have to consider whether or not he was actually discriminated against.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Top Employment Law Stories of 2018

Employment law never stands still, and 2018 was yet another busy year. I thought it would be useful to look back at the developments over the past 12 months by looking at the top 10 most popular stories on our News page. (Please feel free to imagine the Top of the Pops music playing in the background!)

At number 10, we have Marianne’s article about the case of Talon Engineering v Smith, Disciplinary hearings and absent companions – to postpone or not to postpone? The popularity of this article definitely matches with what we are seeing in practice, as several of our clients have seen employees testing the limits of how far employers will be prepared to delay hearings based on a companion’s unavailability.

And up next at number 9 is Peter’s article about the changes which took effect on 6 April 2018, Taxation of termination payments – what’s changing? The changes have already had a significant impact on a number of the Settlement Agreements we have dealt with for both employers and employees since April.

Number 8 for 2018 was Marianne’s article about the case of De Souza v Primark, Employee awarded £47,000 in transgender discrimination case. We have noticed a significant increase in the number of enquiries about gender reassignment over the past few years, and certainly the compensation figure in the De Souza case is a wake-up call for employers to ensure they are aware of their obligations in this complex area.

In at 7 was my March article about the National Minimum Wage – NMW headaches for employers. The NMW also came in at number 6 in our article about the latest case law on sleep-ins, which we covered in July: Latest case – an end to the sleep in crisis?

Making it to number 5 is a case where the highest court in the land had to decide whether someone received their notice when it arrived in the post, or when they actually read it. A simple question on the face of things, but an important one: When does notice take effect?

One of my articles from October came in at number 4Can you make someone redundant when they are off sick? It is not surprising that this one struck a chord with many of you, as I wrote it as a result of several clients having similar queries. The short answer is yes, but of course there is always more to it than that!

At third place in the table is Can smaller offences ever ‘add up’ to gross misconduct? Previously, it had tended to be the case that gross misconduct had to be one significant issue, rather than a collection of smaller ones, but although the case of Mbubaegbu v Homerton University Hospital found that was normally right, there were exceptions when smaller matters could be added together to justify summary dismissal.

Number 2 was good old Mr Bump – To bump or not to bump? As we say in the article, bumping is something that we get asked about a lot, and clearly has been a very popular topic in 2018, but it actually is fairly unusual to see it successfully used in practice!

And finally, our number 1 story from 2018 was Repayment of training costs – is it legal? This is obviously a particularly hot topic for both employers and employees – and it is important that employers have proper agreements in place if they want to try and recover training costs from departing employees. Do get in touch if you need help with any issues around training costs.

Thank you to everyone who reads our articles – we get some lovely feedback and it is great to hear that they are useful to you. We’ll continue to keep you all bang up to date with everything 2019 has in store!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Top Employment Law Stories of 2018

Employment law never stands still, and 2018 was yet another busy year. I thought it would be useful to look back at the developments over the past 12 months by looking at the top 10 most popular stories on our News page. (Please feel free to imagine the Top of the Pops music playing in the background!)

At number 10, we have Marianne’s article about the case of Talon Engineering v Smith, Disciplinary hearings and absent companions – to postpone or not to postpone? The popularity of this article definitely matches with what we are seeing in practice, as several of our clients have seen employees testing the limits of how far employers will be prepared to delay hearings based on a companion’s unavailability.

And up next at number 9 is Peter’s article about the changes which took effect on 6 April 2018, Taxation of termination payments – what’s changing? The changes have already had a significant impact on a number of the Settlement Agreements we have dealt with for both employers and employees since April.

Number 8 for 2018 was Marianne’s article about the case of De Souza v Primark, Employee awarded £47,000 in transgender discrimination case. We have noticed a significant increase in the number of enquiries about gender reassignment over the past few years, and certainly the compensation figure in the De Souza case is a wake-up call for employers to ensure they are aware of their obligations in this complex area.

In at 7 was my March article about the National Minimum Wage – NMW headaches for employers. The NMW also came in at number 6 in our article about the latest case law on sleep-ins, which we covered in July: Latest case – an end to the sleep in crisis?

Making it to number 5 is a case where the highest court in the land had to decide whether someone received their notice when it arrived in the post, or when they actually read it. A simple question on the face of things, but an important one: When does notice take effect?

One of my articles from October came in at number 4Can you make someone redundant when they are off sick? It is not surprising that this one struck a chord with many of you, as I wrote it as a result of several clients having similar queries. The short answer is yes, but of course there is always more to it than that!

At third place in the table is Can smaller offences ever ‘add up’ to gross misconduct? Previously, it had tended to be the case that gross misconduct had to be one significant issue, rather than a collection of smaller ones, but although the case of Mbubaegbu v Homerton University Hospital found that was normally right, there were exceptions when smaller matters could be added together to justify summary dismissal.

Number 2 was good old Mr Bump – To bump or not to bump? As we say in the article, bumping is something that we get asked about a lot, and clearly has been a very popular topic in 2018, but it actually is fairly unusual to see it successfully used in practice!

And finally, our number 1 story from 2018 was Repayment of training costs – is it legal? This is obviously a particularly hot topic for both employers and employees – and it is important that employers have proper agreements in place if they want to try and recover training costs from departing employees. Do get in touch if you need help with any issues around training costs.

Thank you to everyone who reads our articles – we get some lovely feedback and it is great to hear that they are useful to you. We’ll continue to keep you all bang up to date with everything 2019 has in store!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
enquiries@pureemploymentlaw.co.uk | Tel: 01243 836 840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.