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Employment Law Bulletin June 2018

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News round up

We have several exciting events in the pipeline. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course.

On 28 June we are holding our annual Mock Employment Tribunal. The Employment Judge has been allocated to the case and the tension is rising amongst the witnesses (or rather our actors who are perfecting their characters). There are limited spaces left so if you or your managers would like to join us for this unique learning experience, please get in touch quickly as there is a bundle of document to read before the ‘Hearing’!

On another note, if you would like to hear more often from the Clarion employment team about legal developments, topical issues and what we are up to, please follow us on twitter @ClarionEmpLaw.

In the meantime, here is our round up of key cases and legal changes over the last few weeks and a more light hearted Q&A section for light relief.

Grandparent Leave

Shared Parental Leave is a way that a couple can share leave following the birth or adoption of a child. One partner ends their statutory maternity or adoption leave and then returns to work, allowing the other partner to take the remainder of the leave. The remaining leave can also be shared between the two partners in a flexible format (e.g. one takes some leave, then the other, and then the first partner takes some more leave). You can refuse a request to take leave in a flexible format, but you cannot refuse a request for one partner to take a continuous piece of leave.

This has been in place since April 2015, and the take-up has generally been poor. The government had said that the leave would be extended to working grandparents during 2018. Although no details of the proposal had been given, it appears that it would have meant that the leave could have been shared with a grandparent in much the same that it is currently shared with a partner.

However, the government has now announced that these plans are on hold. So, until (and if) the government decides to proceed with these plans, you can continue with just allowing two partners (who will both have responsibility for the care of the child) to share any leave.

If you have any questions about the way that Shared Parental Leave operates, please do not hesitate to contact us.

What is the last straw?

An employee can claim constructive dismissal when the employer breaches the contract of employment, the employee resigns in response to that breach and the employee does so in a timely manner. Constructive dismissal means that the employee treats him/herself as being dismissed due to the actions of the employer. The compensation for a successful constructive dismissal claim is the same as for a successful unfair dismissal claim.

A breach might occur when there is one, sufficiently bad, event. Alternatively, it might occur when there has been an ongoing series of events and the employee resigns in response to the latest in that series of events. This is referred to as the ‘last straw’. However, if the employee has never protested about the earlier events in the series, can the employee then put forward the ‘last straw’ argument?

In Kaur v Leeds Teaching Hospitals NHS Trust [2018] the employee had had a significant number of arguments with management about a range of issues. She then resigned in response to one of these issues claiming that it had been a ‘last straw’. The employer argued that she had accepted the earlier acts because she had continued working, which therefore indicated that she was not protesting about them.

The Court of Appeal disagreed. Although she had continued working this did not indicate that she had accepted what had happened. The Court of Appeal went on to provide some useful guidelines to follow when assessing a ‘last straw’ situation:

Actions:

Dealing with a claim of harassment

If an employee is suffering harassment there is a real possibility that the employee will become frustrated and upset. If the employee senses that the employer is not taking the complaints seriously, or is not trying to stop the harassment, the employee might take the situation into their own hands. Can you take action against an employee in these circumstances?

In G v London General Transport Services and others [2018] a female bus driver, who worked in a predominantly male environment, complained that she was suffering ongoing harassment in the form of inappropriate sexual comments. Although she complained to management, nothing was done to stop this, and she was told to tell the drivers that she was pregnant or married to stop the comments. Eventually she sent a group email to all the bus drivers asking them to stop the behaviour. She had been told before that she should not send group emails, and was reprimanded. She resigned and successfully claimed sexual harassment and constructive dismissal.

Actions:

What is harassment?

In deciding whether something amounts to harassment, the Employment Tribunal has to consider objectively whether the events happened as described by the individual, and subjectively whether it is reasonable for the individual to have concluded that the events amounted to harassment. Just because an individual takes offence and concludes that something is harassment does not necessarily mean that it is.

In Bakkali v GMB (South) Ltd [2018] the employee concerned was a Muslim. He engaged in a conversation with another employee about Islamic State fighters and made reference to some comments made by a German journalist about them being good fighters. At a later date another employee, who had heard the discussion, asked Bakkali ‘Are you still promoting ISIS?’.

Bakkali claimed direct discrimination and harassment but was unsuccessful. The Employment Appeal Tribunal agreed that the remarks did not relate to a protected characteristic (i.e. his race or religion) but specifically to the conversation that had taken place.

Actions:

A pattern of behaviour can lead to a fair dismissal

If an employee is dismissed for gross misconduct, it is typical for the dismissal to relate to a specific act or omission by the employee. However, if the employee has not done one thing but has done lots of things that add up to an overall pattern of unsatisfactory conduct, can this be a reason to dismiss?

The answer to that question was found to be ‘yes’ in Mbubaegbu v Homerton University Hospital [2018]. The employee concerned was a doctor who had done a number of things which were unsatisfactory conduct. On their own, none of the acts was sufficiently bad to be gross misconduct. However, when added together, the employer concluded that they were gross misconduct.
This was found to be a fair dismissal. A pattern of behaviour can be gross misconduct, as can one event.

Do be careful with this ruling. If you were to dismiss an employee in this way you would have to show why you had not given any disciplinary warnings relating to the pattern of behaviour. It might be that you could argue that the events all happened close together, or that the events show an attitude to work that is unacceptable.

Action:

A further conclusion about worker status

Over recent months we have reported on a number of cases relating to employment status. Another case has been referred to the Employment Appeal Tribunal, this time the case of Addison Lee v Gascoigne [2018].

The employer argued that the decision that Gascoigne was a worker was wrong. It argued that there was not sufficient strength in the relationship between the individual and the employer to give the individual a worker status, because the individual could choose when to work. When he was available to work, he logged on to the app that he had been provided with. He was then assigned jobs which he had to accept. If he was not logged on, then he did not have to work.

The Employment Appeal Tribunal has concluded that he was, in fact, a worker. He did have to do work personally, and once he was logged on to the app, he was clearly under the direction of the employer because he had to do all of the jobs allocated to him.

Action:

Q&A - Chris Booth

What is your favourite thing about being an employment lawyer?
I do like the complexity and challenge of employment law, but equally enjoy its application to the facts that a client presents to me such that a real solution to the problem is achieved – it’s important that any client does not view me as “the employment law police”, but that we adopt a “can do” approach whilst recognising the risks.

What would be your ideal way to spend the weekend?
On the island of Mallorca with my wife Sarah, with a trip to Palma on Saturday morning to people watch, before a glass (or two!) of white wine and oysters at the local market.

What was your first job?
Working as a shop assistant in Woolworths, on the cold meat/cheese counter to be precise, from which I once served Lady Diana (her sister lived nearby).

If you could turn any activity into an Olympic sport, what would you have a good chance at winning medal for?
Losing my wallet/keys or my mobile phone (any possession for that matter).

What is the best piece of advice you have ever been given?
To myself (non-legal), to join Clarion after 30 years at only one other law firm – a breath of fresh air.

If you could only eat one meal for the rest of your life, what would it be?
My wife’s Moussaka.

What 3 items would you want with you if you were stranded on a desert island?
A golf club, a large bag of balls, and a book called “how to cure a slice”.