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10
Mar 22

Posted by
Saoirse Moloney

Age discrimination case against Asda

In the case of Hutchinson v Asda stores, Joan Hutchinson was employed as a shop floor assistant within the George clothing department. She worked 25.3 hours a week and enjoyed her role. As part of her role, she stripped deliveries, merchandised on the shop floor, followed planograms for new layouts and delivered excellent customer service.

Her son noticed that his mother was showing symptoms of dementia. During the Summer of 2019, he noticed that her driving skills were impaired when she drove the wrong way around the roundabout. She gave up driving in March 2020 and began travelling to work by bus. She accepted that her dementia was getting worse when she had to walk to work after being unable to find the bus stop. The staff at her branch in Deeside, North Wales, noticed her slowing down at work, becoming flustered and losing her personal belongings.

The tribunal heard that while Ms Hutchinson was shielding in 2020, Ms Weston-Laing went to her home to bring her shopping. The claimant returned to work on the 9th of July 2020, and throughout the course of the day, Weston-Laing was concerned about her performance and needed to be reminded of social distancing.

On her return to work, a colleague looked in her bag when she could not find her keys and bus pass, which violated her dignity. The next day she arrived to work an hour early, as she had the previous day due to revised bus times, but this was seen as another indication of her confusion.

Weston-Laing and another colleague decided to hold a meeting to see if there was anything that the store could do to support her. The claimant became upset and aggressive saying that she did not need help and that if she did, she would ask for it. She was also asked to speak to occupational health and said, “I cannot do my job, I will leave.” She then walked out and did not return to work after being signed off sick.

She resigned in September 2020 after she felt like she was being pushed out of the business and too old to be there.

Mrs Hutchinson won her claims of age and disability discrimination as well as constructive dismissal.

Employers need to be aware that even well-meaning comments and actions can be held to amount to discrimination or even harassment on the ground of disability and age. Asking older employees if they would like to retire is risky and can make them feel unwanted and upset.

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Posted in Discrimination, Employment Tribunals

3
Feb 22

Posted by
Saoirse Moloney

Tribunal Case: Refusal to get Vaccinated

In the Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held that a care home worker was fairly dismissed when she refused to get the vaccination against Covid-19.

Background


Ms Allette worked in a nursing home that provides residential care for people with dementia. In December 2020, staff were encouraged to have their Covid-19 vaccinations to protect their staff and residents. By the middle of January 2021, the nursing home changed their approach and required that staff had to be vaccinated to continue their employment. There had been a Covid-19 outbreak in the nursing home which resulted in the deaths of multiple residents. There was nothing in Ms Allette’s contract of employment that required her to be vaccinated nor was there anything in the nursing homes disciplinary procedure about the termination of employment due to the refusal to get the vaccine.
By the middle of January 2021, it was now made mandatory for staff in the nursing home to be vaccinated, and there was a risk of disciplinary action if she refused to get vaccinated. Ms Allette did not want to be vaccinated as she was concerned over the safety of the vaccine. She was dismissed from the workplace for gross misconduct at the start of February 2021. Her Rastafarian beliefs include being opposed to any form of non-natural medication was reason for her refusal. Her appeal against the dismissal was unsuccessful.


Tribunal Claim


Ms Allette brought claims to the employment tribunal (ET) that her dismissal was unfair due to the right to respect her private life under the European Convention on Human Rights. She also argued that the dismissal was wrongful as it was in breach of the contract.


Employment Tribunal Decision


In relation to Ms Allette’s unfair dismissal claim the ET acknowledged that the employer could have:
• Given her more opportunities to change her mind
• Placed her on unpaid or paid leave
• Sought further scientific information or material to persuade her that the vaccine was safe and necessary.
The tribunal refused to conclude that no employer would have responded the same as the care home did in the circumstances of this case.


They accepted that the nursing home cannot be in direct breach of Act.8 (on the right to respect for private life) of the European Convention on Human Rights because it is not a public authority. The tribunal went on to conclude that the employer's interference in Ms Allette's private life was justified in this case. The tribunal had to consider the balance between her right to a private life and this small employer's legal and moral obligation to protect its vulnerable residents.
When rejecting Ms Allette’s wrongful dismissal claim the ET accepted that the rights of the residents, staff members and visitors outweighed the impact that the requirement to be vaccinated had on Ms Allette.


In relation to her wrongful dismissal claim the ET accepted that there was nothing in her contract that required her to have the vaccine. However, the ET accepted that the nursing homes instructions to their employees that you had to be vaccinated to remain employed was within reason due to the:
• state of the COVID-19 pandemic nationally at that time
• consequences of the care home's outbreak
• advice on the virus and vaccination from public health authorities in England.


The ET found that there was mistrust between Ms Allette and the nursing home’s management team on what she was being told about the safety of the vaccine. According to the tribunal her decision was not made by any religious beliefs and the reason for her not to get vaccinated was unreasonable.

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Posted in Coronavirus, Dismissals, Employment Tribunals, Health & Safety

1
Feb 22

Posted by
Saoirse Moloney

Covid-19: The Most Recent Tribunal Cases

There is no doubt that there is a rise in tribunal cases, recent cases include the refusal of returning to the office in fear of catching the virus. It is important as an employer to understand what employees are entitled to and understanding that there is still a fear surrounding Covid-19

Two of the most recent tribunal cases, Moore v Ecoscape UK Ltd and Lewis v The Benriach Distillery Company Limited discuss the claims and outline the decision that the employment tribunal (ET) came to.

Moore v Ecoscape UK Ltd

Ecoscape required Moore to return to working from the office. Moore sought to rely on section one hundred of the Employment Rights Act 1996, to which a dismissal is automatically unfair where an employee believes that they are in ‘serious and imminent danger’ if they leave or refuse to attend the workplace while the danger persists.

Ecoscape conducted various Covid risk assessments and adjusted the office and sanitisation procedures. They also provided Moore with a separate working space with her own equipment to address the concerns that she had. She was still reluctant to return and asked if she could work from home. Based on the nature of her work, the employer refused this request as she deals with deliveries and customers. She raised a grievance and a grievance appeal, but both were unsuccessful. She resigned and brought a claim for constructive unfair dismissal.

The ET found that the claimant’s Covid concerns related to a general fear about leaving the home and not about the employer’s workplace. She failed to involve herself with the discussions with Ecoscape about the measures they implemented and refused to visit the workplace to review those measures.

The ET concluded that Ecoscape had taken appropriate steps to accommodate the concerns of the claimant and that they failed to explore any compromises proposed by Ecoscape. In a result the claimant’s claim failed.

 

Lewis v The Benriach Distillery Company Limited

Mr Lewis was a forklift driver for a whisky distillery. He served 23 years of good service and was dismissed without notice for attending work when his son informed him of having symptoms of Covid-19 and had booked a Covid test. Lewis did not believe his son’s symptoms (a cough and loss of smell) were genuine. He thought his son was faking his symptoms so he could get off work.

At the time the Scottish government’s guidance required anyone who lived with someone displaying symptoms to isolate. His sons test came back positive the next day and Lewis was dismissed for gross misconduct.

An ET found that Lewis’ dismissal was unfair. There was nothing in the government’s guidance that would require someone to self-isolate if Lewis genuinely believed that his son was not in fact displaying Covid symptoms.

While assessing the case, the employer should have taken into consideration:

his 23 years of good service

his record of compliance with Covid guidance; and

that there was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.

The ET found that there was some contributory fault from Lewis so reduced his financial awards by 25%.

 

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The Omicron Variant & The Workplace

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Posted in Coronavirus, Dismissals, Employment Law, Employment Tribunals, Health & Safety

2
Nov 21

Posted by
Jennifer Patton

Don't Get Caught Out: Discrimination Case Law

We are all aware of how it is against the law to treat someone less favourably due to their gender, race, religion, age etc, but this does not mean that discrimination does not still occur in the workplace. In a recent case, the Employment Tribunal (ET) ruled in favour of an employee who was discriminated against when she was dismissed while on maternity leave for refusing to accept a lesser role with a £20,000 pay cut.

The claimant claimed that when she informed her colleagues of her pregnancy, she was asked how the pregnancy would affect her long-term career goals and the all-male executive team subjected her to "offensive and humiliating" comments, announcing they should "put a wager" on how much weight she would gain during her pregnancy.

During her maternity leave the company went through a restructure which included the dismissal of several executives. The new chief executive excluded the claimant in the restructuring and the claimant discovered from HR that she was no longer on the company email distribution lists or on the new organisational chart and was at risk of redundancy. In response, the company sought to offer her a revised job description for the director of marketing role which was a lower-level role than marketing director and also involved a £20,000 pay reduction. The claimant refused the role and was subsequently made redundant by the company.

The ET upheld her claims of unfair dismissal and maternity discrimination as there was a stark difference in the treatment the claimant received compared to her male colleagues, with the only explanation being due to the fact that she was on maternity leave. The tribunal found that not only was the job description offered to the claimant copied from other websites but also that no such role existed and the retained executives did not have their salaries reduced in order to stay with the company.

Although, a claim of harassment on grounds of pregnancy and maternity cannot be brought under the Equality Act, the ET concluded that the claimant was subjected to a “humiliating and degrading environment” when her colleagues placed a bet on how much weight she would gain during her pregnancy and that this amounted to direct discrimination and the ET awarded her £25,000 plus £5,000 in interest for injury to feelings.

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Posted in Bullying and Harassment, Discrimination, Dismissals, Employment Tribunals

16
Apr 18

Posted by
Jennie Hussey

Tribunal claims up 90% since abolition of fees

The Ministry of Justice (MOJ) has published figures showing a massive 90% increase in single claims lodged at employment tribunals in the last quarter of 2017 compared to the last quarter of 2016 - the Supreme Court ruled tribunal fees to be ‘unlawful’ during last summer and abolished them going forward.

The MOJ has cited the reversal of fees as the cause of this rise in cases, as employees are no longer put off making claims and using the tribunal process.

The most recent quarter has also shown a 467% increase in multiple claims, filed by more than one complainant. Some of the major supermarkets, Tesco, Morrisons and Asda have all faced multiple pay claims in the last few months, with Tesco facing up to £4bn in fines from a single group claim.

With the abolition of the tribunal fees came a refund scheme which saw 3,337 claims processed for refunds of fee payments to the value of nearly £2.8m between October and December 2017. There is four years worth of fee payments that could be claimed for refund, adding to the growing headache that is the whole tribunal fee’s debacle.

All of this is putting significant pressure on the tribunals who had, after the fee’s were originally introduced, reduced staff numbers and had their funding cut, is now having to deal with huge backlogs and delays. The increase in employment tribunal claims since the removal of the tribunal fees indicates just how important it is for employer’s to have in place proper policies and fair procedures in relation to their employee / employer relationship.

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Posted in Company Handbook, Contract of employment, Customer Update, Dismissals, Employment Tribunals

1
Feb 18

Posted by
Lauren Conway

£250,000 holiday back-pay paid out to construction workers

Over 100 construction workers are to receive an estimated £250,000 worth of holiday pay following a Unite campaign which ruled that voluntary overtime should be included in holiday pay.

Background

Workers across three high profile projects in London were paid holiday pay based on 39 hours a week whereas in reality they often worked 55 hours a week working overtime on Saturdays. The workers have secured payment of between £400 and £1,000 each with further back payments to be received after joining forces to demand their full holiday entitlement.

The construction workers were initially ignored when they brought the issue to Byrnes Bros management, until construction workers at different sites, backed by Unite, joined forces and commenced a campaign which developed into a collective grievance. Management then tried to deal with the grievances individually but workers insisted on a collective remedy to the underpayments. Management accepted that overtime should have been included in holiday pay and Byrne Bros are now in the process of paying each worker what they are owed including back pay.

Learning Points

The decision to accept fault comes as no surprise after the landmark ruling by the employment appeal tribunal in the Dudley Metropolitan Borough Council v Willetts (and others) case in July 2017. The case was the first to confirm that employers must include normal voluntary overtime when calculating holiday pay and it set a legally binding precedent which employment tribunals across the UK are obliged to follow. The pressure is now on for employers who still do not include overtime in holiday pay to urgently reconsider; otherwise they are at risk of being brought in front of the Employment Tribunal.


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Posted in Company Handbook, Contract of employment, Employee Contracts, Employee Handbook, Employment Tribunals

4
Dec 17

Posted by
Marzena Ignar

Does my employee need a written statement of employment?

The main purpose of the written statement of employment, often referred to as the contract of employment, is to clarify the terms of a person’s employment and avoid uncertainty or misunderstandings, where employee expectations might not be the same as employer intentions.

All employers must provide an employee with a written statement of their terms of employment within 2 months of commencement of employment, including full-time staff, part-time staff, fixed-term and casual workers.

The written statement must include the following information:

  • The full name of employer and employee
  • The address of the employer
  • Place of work
  • Job title or nature of work
  • The date the employment started
  • Type of contract
  • Rate of pay
  • Pay intervals
  • Hours of work
  • Paid leave
  • Incapacity for work, sick pay 
  • Any terms relating to a pension scheme
  • Period of notice to be given by employer or employee
  • Details of any collective agreements
  • Pay reference period

Additional clauses can be recommended to further clarify the relationship. These might include:

  • Probation clause
  • Pay in lieu of notice clause
  • Confidentiality clause
  • Right to search 
  • The calculation of holiday pay

Failure to to provide contracts of employment could leave you wide open to a claim from their employees. Employers found not to have written terms of employment in place will be fined a maximum of 4 weeks’ remuneration per employee. Clearly worded contracts of employment are key to the success of any business. They will ensure your business is on the right side of employment law as well as help prevent disputes with employees.

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Bright Contracts - Employment Contracts and Handbooks

Posted in Company Handbook, Contract of employment, Employee Contracts, Employee Handbook, Employee Records, Employment Contract, Employment Tribunals, Staff Handbook, Workplace Relations Commission, WRC

17
Nov 17

Posted by
Lauren Conway

Be careful of discrimination in job interviews

Having a wide range of interview questions is vital to find out as much information about a candidate as possible to assess whether they have the right skills and attributes for the role. When conducting an interview you may veer off your pre-set questions when building rapport with a candidate and to do a little digging in some areas, however asking the wrong question could leave you at risk of a hefty discrimination claim.

Marital and family status, sexual orientation

Although it may seem friendly asking if a candidate has a family or children it is not suitable for an interview. Asking such questions may leave you appearing more favorable to someone who may seem more stable or someone who might not have family commitments.

Do you have or plan on having children? What childcare arrangements do you have?

The job may require some overtime at short notice. What days/hours are you available to work? Can you travel?

Place of birth, race, religious beliefs

Again, employers may think they are being friendly asking questions like: where are you from originally? Or do you get to visit home often? But be warned that any questions surrounding birthplace, background or religious beliefs can lead to discrimination.

Where were you born? What religion do you practice?

Are you eligible to work in Ireland? What languages do you speak or write fluently?

Gender, age

Asking a candidate questions about their gender or age in relation to their ability to do a particular role is discrimination. If there are certain challenges to a role you may certainly ask about their ability to handle those situations but never imply that their gender or age may affect this.

We’ve always had a man/woman in this role. Do you think you can handle it? How many years do you think you’ll have left until you retire?

What can you bring to this role? What are your long term goals?

Location, disability, illness

You may think asking questions regarding where a candidate lives and how far/long it will take to commute to work is innocent but asking these questions could cause discrimination relating to a neighborhood heavily populated by an ethnic group or social class. Also asking questions around gaps in a candidate’s employment is acceptable, but asking questions around a disability and how it may affect their capabilities to do a job is not.

How far would your commute be? Do you smoke/drink?

Are you able to start at 9 am? Have you ever been disciplined due to alcohol/drugs?

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Posted in Company Handbook, Contract of employment, Discrimination, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals

6
Nov 17

Posted by
Jennie Hussey

How to Avoid Harassment in the Workplace

The recent allegations against Harvey Weinstein in the US have created somewhat of a snowball effect worldwide with thousands of women and men speaking out about their accounts of sexual harassment and assault, many of them being work related. Allegations involving high profile individuals and people in authority have demonstrated just how widespread a problem this has become across all industries and professions and has exposed a sinister culture of silence, fear and acceptance which we must now turn on its head.

In the UK, the Equality Act 2010 prohibits sexual harassment, defined as conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples might include unwelcome sexual advances, displaying pornographic images, or sending emails containing material of a sexual nature.

Employers in the UK are responsible for their employees’ actions in the course of their employment, even if such actions are taken without the employer’s knowledge or approval. Employers should be able to demonstrate that all reasonable steps to prevent the employee from taking discriminatory action were taken, in order to build a successful defense.

Employers are therefore compelled to take steps to ensure a harassment-free work environment. Effectively organisations must set down clearly defined procedures to deal with all forms of harassment including sexual harassment.

There are a number of steps an employer can take to help prevent this type of behavior from occurring in the workplace:

A Bullying and Harassment policy

  •  to protect the dignity of employees and to encourage respect in the workplace

An Equal Opportunities policy

  • to create a workplace which provides for Equal Opportunities for all staff

A Whistleblowing policy

  • to enable staff to voice concerns in a responsible and effective manner.

Transparent and fair procedures throughout

Disciplinary action

  • A sanction that is appropriate for the level of alleged harassment – to help try and change the culture of silence that has allowed harassment to become normal and protected.

Provision of on-going training

  • At all levels within organisation

Bright Contracts has a fully customisable Staff Handbook, which includes a Bullying and Harassment Policy and also an Equality Policy and Whistleblowing Policy.

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Posted in Bullying and Harassment, Company Handbook, Dismissals, Employee Handbook, Employment Tribunals, Staff Handbook

25
Oct 17

Posted by
Lauren Conway

Government have launched Employment Tribunal fee refund scheme

Following the ruling in July this year which saw the Supreme Court rule employment tribunal fees as unlawful, the Government is now ready to start repaying the thousands of people that were charged.

The ruling, which was heralded as possibly the biggest employment law decision ever in the UK, saw the Supreme Court unanimously ruling that the Government was acting unlawfully when they introduced the fees back in 2013. Fees of up to £1,200 were introduced resulting in a dramatic fall from 5,847 employment tribunal cases the year before the fees were introduced, to 1,740 the following year.

The first steps

The first stage of the refund process will see up to around 1,000 people contacted individually and invited to complete their forms before the full scheme is opened up in the coming weeks. The Government is also working with Trade Unions who have supported large multiple claims, potentially involving hundreds of claimants.

People who were ordered by the Tribunal to reimburse their opponent their fee and who can show that they have paid it are also eligible to apply for a refund under the scheme.

Successful applicants to the scheme will be refunded their full fee and will also be paid interest of 0.5% calculated from the date of the payment right up to the date of the refund.

The opening phase of the refund scheme will last for around 4 weeks. Further details of the scheme will be made available once the scheme is rolled out fully.

For further details please see gov.uk

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Posted in Dismissals, Employee Contracts, Employee Handbook, Employment Tribunals, Employment Update

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