FGazette April 2014

AZETTELawyers for today’s employers

APRIL 2014 // FOCUS ON: DISCRIMINATION

the quarterly newsletter of FG Solicitors

IN THIS ISSUE //OFFICE BANTER

RIGHT TO WORKWHEN DOES IT GO TOO FAR?

CLAIMS BY ILLEGAL WORKERS

CHAIRMAN'S VIEWthe introduction of the Equality Act 2010) and in particular inadvertent discrimination. We consider how this may arise during the following situations: general office banter; where an employee cannot carry out their job; and checks on right to work documents.

We also keep you updated on legislation - more statutory reforms come into force shortly on 6 April 2014 – check our legislation update for these, which includes the abolition of discrimination questionnaires and the introduction of ACAS mediation which will be mandatory from 6 May 2014.

Again, we will wait to see the impact of legislative changes. In the meantime, after our wet Winter I hope Spring brings you sunshine and profits.

In our last FGazette I said that we would await more accurate figures before drawing more concrete conclusions as to the impact of tribunal fees. The High Court took a similar approach in its dismissal of Unison’s challenge to the introduction of Tribunal fees; it observed that the fundamental difficulty with this case was that it had been brought prematurely and the necessary evidence was not yet available. The Court made it clear that the Lord Chancellor will be under a duty to amend the fees regime if future statistics provide the relevant evidence. In the meantime, Unison has indicated it intends to appeal the decision and the government has announced that it is developing reporting tools to analyse the impact of tribunal fees.

One of the types of claims most affected by the introduction of fees is a discrimination claim; it costs £250 to issue a claim and there is a further £950 hearing fee. This issue of the FGazette focuses on discrimination and looks at some of the issues employers may not have considered for some time (nearly 4 years after

Hello again FGazette readers!

2 Deanery CourtGrange Farm

Preston DeaneryNorthants NN7 2DT

Email: [email protected]: +44 (0)1604 871143

www.fgsolicitors.co.uk

IN THIS ISSUE //

page 3 //fg news

page 4 //illegal working & discrimination

page 6 //OFFICE BANTER

PAGE 8 //counting the cost of discrimination

page 10 //discrimination case study

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S O L I C I T O R SLawyers for today’s employers

Attendee Feedback:

Puts the information into easily understandable format and gives you ‘food for thought’Kirsty McDonald, ACS Office

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A ‘much-needed’ topic!Leslie Jaeger, Dragon Infrastructure Solutions

Very informativeSara Homer, Image Fitness

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WELCOME TO OUR NEW TEAM MEMBER

BEING A GOOD NEIGHBOUR

On 27th February 2014, in partnership with Brackmills Business Improvement District (BID) we hosted a breakfast seminar entitled ‘Managing Social Media in the Workplace – Are You Keeping Pace?’

Thank you to everyone who attended and to the team who worked very hard in bringing the seminar together.

It was surprising that despite the advances of social media into our daily lives, many people are still uncertain on the key implications for the workplace.

If you were unable to attend but would like a copy of the seminar slides, please email [email protected]

We are pleased to announce that Matt Chatting became the newest member of our Business Support team in March on our new apprenticeship scheme. We would like to welcome Matt to the FG team and we look forward to working with him.

We are always keen to support our local community and are often involved with raising money for charity. If you know of any great causes that we can support, please let us know by emailing: [email protected]

SEE WHAT WE’VE BEEN UP TO AT FG SOLICITORS H.Q.FG

NEWs

BRACKMILLS SEMINAR

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Illegal working and discrimination claims

A successful sexual harassment claim from an illegal worker is perhaps not the most obvious consequence of failing to check right to work documents. A discrimination issue which is more likely to arise is that of ethnic minorities suggesting they are being discriminated against if there is not a clear policy for checking right to work documents of all employees.

This could arise because, for example, an employer decides that it is unnecessary to check right to work documents of white workers because they clearly have the right to work. Even if the white workers do have the right to work (because, for example, they are British citizens), how does the

If an employer discovers that they have illegal workers (or have known this since the beginning of their employment) they may believe that such workers will have no right to bring an employment tribunal claim because they are working under an illegal contract. The Employment Appeal Tribunal (EAT) has held in Wijesundera v Heathrow Logistics (2013) that this is not the case.

In this case, Ms W commenced work before obtaining a work permit and knew that she was working unlawfully. She was subsequently dismissed and brought a claim for sexual harassment – she claimed that she was seriously sexually assaulted. The EAT held that the claim for sexual harassment (save for the dismissal) could be considered despite Ms W’s unlawful work status.

employer decide which other workers’ documents should be checked? If the employer checks the passport of an individual of Asian ethnicity but who was born in Britain, the only difference between the requirement to provide right to work documents is the employee’s ethnicity. This could therefore amount to race discrimination.

It is worth providing a quick reminder of what to look for when checking right to work documents of all staff (this is just a brief list which by no means covers all obligations):

Employers should be aware that they need to check whether a person has the right to work in the UK prior to employing them. This is a particularly important step given that the civil penalty for employing a person who does not have the right to work is increasing from £10,000 to £20,000 per employee from 6 April 2014.

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PP Check that the documents have not expired (although UK passports may have expired).

PP Check that photos in the documents look like the employee.

PP Check that the date of birth on the document seems consistent with the employee’s appearance.

PP Check that any visa covers the type of work they will be doing (including any limit on the number of hours they can work).

PP If 2 documents have different names on, make sure there is a good reason and evidence for this (eg. marriage/divorce).

Ensure that you check the full list of documents required on

the Home Office website and ensure that you keep a copy of any documents to evidence that you have carried the

above process out for all staff. This will assist in avoiding both discrimination claims and fines for employing illegal

workers.

www.gov.uk/check-an-employees-right-to-work-documents

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When does office banter go too far?

A silent office can be a little disturbing; a few jokes can bring the team together and promote a more pleasant environment to work in.

However, not everyone has the same sense of humour. When should someone's lack of sense of humour or poor taste in jokes cause an employer concern? Why should an employer try to prevent banter from going too far and what does "going too far" mean? We try to answer these questions below by considering some key areas where office banter might amount to discrimination, particularly highlighting a couple of common misconceptions.

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Misconception 1 - Employers do not need to be concerned about a team member's derogatory comments about gay people if no one in the team is gay.

This is not true for the following reasons:

The Equality Act 2010 provides for protection against discrimination of workers with various “protected characteristics”. These protected characteristics include sexual orientation, but also age, race, disability, sex, gender reassignment, religious or philosophical belief, maternity and pregnancy and marriage and civil partner status.

An employee’s conduct can amount to harassment if it is related to a protected characteristic. If the conduct is related to a characteristic, a person does not need to actually have that characteristic. For example, if employees shun a co-worker because they think he is gay or because he has a friend who is gay, even if the co-worker is not gay, the conduct is related to the sexual orientation characteristic, so it could amount to harassment (a type of discrimination).

In the case of English v Thomas Sanderson Limited (2008), an employee’s “tormentors” repeatedly called him names such as “faggot”, because he had attended boarding school and lived in Brighton. The employee was not gay, his “tormentors” did not believe he was gay and he knew his tormentors did not believe him to be gay. The Court of Appeal held that this “homophobic banter” directed at the employee could be unlawful harassment.

Misconception 2 - If an employee themselves starts the banter they cannot later claim that they were discriminated against.

This is not true for the following reasons:

Part of the definition of sexual harassment is that the conduct is “unwanted”. An employer may try to argue that the conduct cannot be “unwanted” if the employee has initiated sexual banter.

However, in the case of Munchkins Restaurant and another v Karmazyn and others (2010), the Employment Appeal Tribunal (EAT) made it clear that conduct may be “unwanted” even if an employee has put up with conduct over a number of years, and even if the employee has initiated talk of a sexual nature as a coping strategy.

The unwanted conduct in this case included asking the employees about their sex lives. The employees initiated banter by asking their boss questions about his love life as they found this made him easier to handle and was a tactic to divert attention away from their own sex lives.

Why should employers do anything about office banter and what can they do?

If comments in the office do amount to discrimination, employers should bear in mind that the offended employee could bring the following employment tribunal claims:

For discrimination, such as harassment (which in theory would have unlimited compensation); and

If the employee resigns because of the discrimination, they could bring a claim for constructive unfair dismissal, arguing that the duty of trust and confidence has been breached.

To avoid such situations arising, employers should ensure that employees are aware of how their comments could be perceived by others. Harassment can be unintentional or subtle. It may involve nicknames, teasing or name calling which may not be intended to be malicious.

Sometimes a quiet word with an employee whose comments may have over-stepped the mark could be sufficient, but in more serious cases employers should not be reluctant to use their disciplinary policy to enforce non-discriminatory principles.

It is also a good idea to provide employees with training in relation to discrimination both on induction and regularly thereafter. As part of this, it is a useful reminder that employees can be personally liable for unlawful discrimination committed by them during their employment.

These steps may just make employees think twice before making a discriminatory comment, which goes too far during office banter.

Sometimes a quiet word with an employee whose comments may have over-stepped the mark could be sufficient, but in more serious cases employers should not be reluctant to use their disciplinary policy to enforce non-discriminatory principles.

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Counting the cost of discriminationThe cost of litigation is always a concern for employers and never more so than in discrimination claims. Employers should never underestimate the cost and disruption a discrimination claim can give rise to. Discrimination claims are often complex and take more than a single day to be heard. On top of the legal costs involved in defending a claim, there are the hidden costs of absent managers who have to attend to give evidence and reputational damage to the business itself.

In order for employers to assess their attitude towards risk and what their approach should be to preventing discrimination in the workplace it is helpful to understand the consequences of getting it wrong. Compensation awarded in a discrimination claim is not subject to the statutory financial limit, which a standard unfair dismissal claim is subject to and is uncapped in relation to financial loss. Compensation may also include a separate award for injury to feelings; the amount awarded depends upon the severity of the case. The maximum award usually sits at £30,000 for the most serious of cases, with cases involving one off minor incidents being awarded £600 upwards. Damages for personal injury can also be claimed as part of a discrimination claim; for employers who have been found to have acted in a high handed or oppressive way aggravated damages can be awarded.

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This is not the end of the matter. In cases presented on or after 6 April 2014, the employment tribunal will have the power to impose financial penalties on employers who lose in the following specified circumstances: where the employer’s breach has - “one or more aggravating features”; and even if a financial award has not been made. It is not clear how the employment tribunal will determine what amounts to “aggravating features”. The government has suggested penalties would be imposed where “the breach involves unreasonable behaviour, for example where there has been negligence or malice involved”. Further guidance has suggested that relevant factors could include the circumstances of the case, the size of the employer, the duration of the breach of the employment right, and the employee and employer’s behaviour.

The minimum penalty will be £100 and the maximum £5,000. If a financial award has been made, the financial penalty must be 50% of the amount of the award (subject to the minimum and maximum caps). An employer will not have to pay the full penalty if it pays 50% of the penalty within 21 days. Employment tribunals will be required to take account of the employer’s ability to pay.

The penalty will be paid to the Secretary of State, who will pay the money into the Consolidated Fund (the government’s general bank account in the Bank of England).

Whilst financial penalties may be awarded in any type of claim, by their very nature discrimination claims are likely to present employment tribunals with their first opportunity to issue the new penalty.

On the upside employment tribunal claims are down. The introduction of tribunal fees from 29 July 2013 may deter some individuals from pursuing a claim. In a discrimination claim, claimants have to pay an issue fee followed by a hearing fee (usually £250 and £950 respectively).

There is some further comfort for employers as from 6 May 2014, claimants will not be able to automatically bring a claim. Claimants will have to utilise the new compulsory pre-claim Acas conciliation process by submitting details of their dispute to Acas before bringing their claims, at which point they will be offered pre-claim early conciliation (“EC”) for a period of one month. If it is refused by either party, or is unsuccessful, the claimant will be able to go ahead and present their claim to the employment tribunal. If the parties enter into EC this will “stop the clock” on the limitation period to present the claim to the employment tribunal.

If things do go wrong, which sometimes happens, EC may provide an employer with an early opportunity to settle the dispute on a confidential basis; and at the same time avoid stressful costly litigation and the possibility of a financial penalty. EC is free to both parties.

No employer can prevent a disgruntled employee or ex-employee from pursuing a discrimination claim. Likewise, an employer does not want to have to pay a financial penalty to the government. Whilst EC may be one option for resolving a workplace dispute, there are many measures that can be implemented to reduce the risk of the business having to take the full force of a successful claim. Zero tolerance on discrimination, bullying and harassment in the workplace, supported by clear consistently applied policies and procedures and training can go a long way to assist an employer to defeat a claim.

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CASE STUDYDISCRIMINATION

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You may be able to dismiss this employee eventually, but you should not do so prematurely. If your employee has 2 or more years' service, he could claim that he has been unfairly dismissed either because the reason you dismissed him was not fair, or because you did not follow a fair process when dismissing him. At present you do not have enough information to make a fair dismissal and you do not appear to have followed any process.

In particular, you do not know the extent of this employee’s back and neck problems, how long these are likely to continue or the effects of these problems on his ability to carry out day to day activities. These are all elements of establishing whether the employee has a disability. If the employee does have a disability then you have

a duty as an employer to make any reasonable adjustments so that he can carry out the work. Could a different seat in his vehicle, for example, make a difference? If you do not consider the question of disability and instead dismiss the employee at this stage, there is the possibility that he will bring a disability discrimination and unfair dismissal claim. Compensation is in theory uncapped for discrimination claims.

The steps you should follow therefore include the following:

Establish exactly what medical problems your employee is suffering

from. Has he been to see his GP? Do you know what the diagnosis is? If not (and even if the employee tells you what the diagnosis is) you should consider seeking a report from his GP and/or occupational health to assess the prognosis. You will need to seek the employee’s written consent to such a report and inform him of his rights in relation to this. The employee’s options will include the right to refuse his consent to a report and the right to see any report before it is sent to you. If the employee refuses consent to a report, you may need to rely on any evidence that is already available to you.

Question: I employ a number of drivers. One of those drivers has told me that he is having back and neck problems and is not prepared to drive. Is it OK if I dismiss him because he is unable to carry out his job?

Consult the employee in relation to the medical report received and

discuss with the employee the implications of this. It is important when seeking the report that questions are asked to establish whether the employee has a disability; these will be focussed on whether the problem has a substantial and long-term adverse effect on the employee’s ability to carry out normal day to day activities. If you are unsure whether the employee has a disability, you should seek legal advice.

Consider whether the organisation can make any reasonable adjustments to

the workplace or employee’s duties if it appears that the employee has a disability.

If the employee definitely does not have a disability, you should follow the usual

absence management procedures such as having return to work interviews, setting targets for attendance (including carrying out driving duties) and reviewing these.

We will not go into the detail here, but a meeting (and most likely more than one) will need to be held with the employee before any decision to dismiss is taken. The key is to consult the employee before any decision is made. If in doubt, seek legal advice.

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legislation timetable

TUPE 2006 Reform These Regulations came into force on 31 January 2014. Some aspects of them will come into effect at later dates, which are shown below.

Zero Hours Contracts A Private Member’s Bill that aims to prohibit the use of zero hours employment contracts has been presented to Parliament. The Bill is due to have its second reading on 6 June 2014. Consultation on zero hours contracts closed on 13 March 2014.

Mandatory Pre-Claim ACAS ConciliationA duty on the parties and ACAS to attempt pre-claim conciliation involving a four-stage procedure for early conciliation, which must be attempted before a claim can be pursued. This will be operational from 6 April 2014 and mandatory from 6 May 2014.

Discrimination Questionnaires Statutory discrimination questionnaires are set to be abolished.

STATUTORY SICK PAYThe Statutory Sick Pay record-keeping will be abolished in favour of giving employers the discretion to use a system which suits them.

Financial Penalties Financial penalties for losing employers to be imposed by tribunal.

TUPE - ELI Employment liability information to be provided 28 days before the transfer (rather than the current 14 days).

Sickness Absence ManagementA new approach to sickness absence management will be introduced.

TUPE - MICRO-BUSINESSES Businesses with fewer than 10 staff will be allowed to inform and consult affected employees directly when there is no recognised independent union, nor any existing appropriate representatives.

Flexible WorkingThe right to request flexible working will be extended to all employees. A statutory code will be issued to give guidance as to how this will work in practice and will be supported by an ACAS good practice guide.

Equal Pay The Government are set to introduce regulations giving employment tribunals the power to order an employer to carry out an equal pay audit where it is found to have breached equal pay law.

31 JANUARY 2014

2014

6 APRIL 2014 & 6 MAY 2014

6 APRIL 2014

6 APRIL 2014

6 APRIL 2014

1 MAY 2014

SPRING 2014

31 June 2014

30 JUNE 2014

2014

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To arrange a visiT or for more informaTion, please conTacT us on [email protected] or 01604 871148visiT us online: www.fgsolicitors.co.uk

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S O L I C I T O R SLawyers for today’s employers

As an employer, do any of these issues sound familiar?

PP “Employment laws are all geared against the employer!”

PP “It isn’t worth employing people anymore!”

PP “Our employees know the Law more than we do!”

PP “The minute we say anything to them they go sick and we can’t touch them!”

PP “Doctors seem to sign them off for anything these days!”

PP “It’s one Law after another. Being in business isn’t about product anymore it’s all about preventing our company from being taken to Tribunal by our employees.”

PP “It doesn’t matter how bad they are you can’t touch them!”

PP “It has got to the point where we are afraid to run our Business!”

PP “My lawyers always start by telling me what I can’t do!”

PP “My lawyers tell me what the law says, I’m not interested that’s what I pay them for!”

If so, there is a solution! FG Solicitors offer a proactive, practical and jargon free approach providing employers with confidence when it comes to employment law. To find out what you CAN do please contact us to arrange a meeting.

WELCOME TO A MORE CONFIDENT FUTURE!