Our next HR Breakfast Club will take place on Thursday 25th April. At the event, we will focus on why people are the driving force of success in any organisation. We will hear from Rachel Hannan who will share some of her personal journey from growing her own businesses to investing in and supporting many others – and why she believes it’s all about the team. We will be sending the invitation out soon so keep an eye on your inbox!
We have officially launched the Leeds 10K Clarion Corporate Challenge 2019!
As loyal supporters of Run For All, we have sponsored the event from the very beginning and we are delighted to be involved again this year.
The Leeds 10K event attracts organisations from across Yorkshire and a wide variety of sectors. The event is known for its fun, friendly atmosphere and we would love for you to join us!
And while you’re on Twitter, why not follow our account (@ClarionEmpLaw). We are always talking about key legal developments, topical issues and what we are up to, so please follow us to be kept up to date between our monthly newsletters.
Discrimination on the grounds of religion/belief
You might recall the case of the ‘gay cake’ that hit the headlines towards the end of last year (the correct name of the case was Lee v Ashers Baking Company Ltd ). In this case, a bakery had refused to bake a cake with a slogan on it supporting gay marriage. The individual who requested the cake was homosexual and brought a claim of sexual orientation discrimination.
He was unsuccessful because he was not refused the cake because of his sexual orientation, but because of the beliefs of the bakery owners. They would have refused to bake the cake regardless of the sexual orientation of the person who requested it.
That ruling has now been applied in the case of Gan Menachem v De Groen . In this case, the employee was Jewish and worked at an ultra-orthodox Jewish nursery. At a social event (where parents of the children were present) her boyfriend let slip that they were living together (whilst being unmarried). She was later asked by the owners of the nursery to deny that she was living with her boyfriend, but she refused to lie. She was dismissed and claimed sex and religious/belief discrimination.
Her claim of sex discrimination was successful. However, her claim of religious/belief discrimination was unsuccessful. She was not dismissed because of her religious beliefs; rather she was dismissed due to the religious ethos of the nursery.
- If you do decide to dismiss an employee, be very clear about the specific reason.
- If the reason is linked to a protected characteristic (e.g. sex, race, disability etc.) talk to us before making any final decisions. You need to be very sure that your decision cannot be seen as discriminatory.
Taking a holistic view of a problem
As we all know, situations relating to ill health absence are often complex. A recent case shows how important it is to take a holistic view of the problem, rather than trying to follow a procedure in a mechanistic way.
In Flemming v East of England Ambulance Services NHS Trust  the employee suffered from anxiety and depression. He had an altercation with his line manager, started to feel ill and it was later confirmed that he had suffered a heart attack.
When he was well enough to return, he was required to attend an occupational health appointment, and they recommended a phased return. However, the problems with his line manager were not resolved, he went off sick again and subsequently refused to attend occupational health appointments, and later did not attend disciplinary meetings. He was eventually dismissed and claimed unfair dismissal and disability discrimination.
His claims were successful. Although it was accepted that he had been difficult to manage, the employer was required to think more broadly about the nature of the difficulties and how they could be resolved, rather than simply working through a procedure.
- Always talk to us before you decide to dismiss an employee who is, or may be, disabled. It is certainly possible to dismiss a disabled person lawfully, but it is not straightforward, and it requires careful thought.
- If an employee refuses to attend an occupational health appointment, consider if there is a viable alternative. For example, would a letter from the employee’s doctor give you the information that you need?
Investigations are crucially important
However obvious the facts of a situation might seem, it is always essential to carry out an investigation. This was recently demonstrated in the case of Jolly v Royal Berkshire NHS Foundation Trust , where a number of failings can be observed.
Jolly was an 88 year old employee, and has become the oldest employee to successfully claim age discrimination. She had worked for the Trust for 27 years, but was dismissed for errors she allegedly made in keeping waiting lists. There had been a change to the waiting list processes and she had attended training, but the trainer was not able to show everyone the full process and the training was never completed. A number of complaints had been made about Jolly and comments had been made about her frailty and mobility. She was eventually dismissed due to three serious incidents, (although she had no knowledge about two of them). She has been successful in her claim of unfair dismissal and age discrimination.
- Never make assumptions about the ability of an older employee. If performance is an issue, treat the situation in the same way as you would for employees of any age.
- Unless you have an Employer Justified Retirement Age (which will be rare – and do talk to us if you are putting in place a specific retirement age for any job) the employee cannot be forced to retire. You should presume that an employee is continuing to work for you.
- If complaints are made about an employee, they must have a chance to put their side of the story and to defend themselves against any allegations that are made.
- Employees must be made aware of the detail of any allegations before a disciplinary hearing takes place, so that they have time to think about their response and to gather any information that they might want to refer to.
- If comments are made in an investigation which are clearly discriminatory, they should not be a factor in any decision.
As an employer you are required to ensure that men and women who are doing like work, work of equal value and work rated as equivalent, are paid the same.
Maybe the most complicated of these three potential claims is that of ‘equal value’. The argument being put forward is that the employees have quite different jobs, but that they are comparable in terms of their value to the organisation.
In Asda Stores v Brierley  such a claim has been made, and this is being echoed by employees at Morrisons supermarkets. In both cases, predominantly female sales staff have compared themselves with predominantly male staff working in the warehouse. The warehouse staff have been paid more than the sales staff, and the women are arguing that their jobs are of equal value.
In the Asda case, the employer had tried to argue that the comparison was not valid because they worked in different locations. However, that argument has failed. There is a single source for their terms and conditions of employment, and the employer is the same. The women have been allowed to proceed with their claims and we await the final decision.
- Ensure that you are monitoring the pay of men and women in your organisation, and if you have any areas where there does not seem to be equality, put in place a plan to address this.
- If you are concerned that employees might see two jobs as equal value, even though you do not think that is valid, please contact us to discuss the situation.
Keeping sexuality quiet
An employee cannot be treated less favourably because of their sexual orientation. ‘Being treated less favourably’ could include being told to keep quiet about their sexuality.
In McMahon v Redmond TTM Ltd and Darren Pilling  the employee told her line manager that she was homosexual in her first week of employment. She was advised to keep this quiet because the owner of the business was ‘old school’ and she was the only gay employee. She was made redundant eight months’ later and claimed sexual orientation discrimination. She was successful. Being told to keep quiet about her sexuality, when other employees were not told to do the same, amounted to less favourable treatment.
- You can ask employees not to overtly discuss sexual issues at work, but if you do have those rules, you must apply them equally to every one of every sexuality.
- Make sure that you have a clear discrimination policy, which sets out acceptable and unacceptable behaviour, and make sure that it is applied fairly and equally to all.
Paying notice pay
If an employee is dismissed for gross misconduct, they can be dismissed without notice pay. However, this only applies to situations of gross misconduct.
In Atherton v Bensons Vending Ltd , the employer gave employees a bottle of alcohol as a Christmas gift, instead of a bonus of around £50, which had been given in previous years. The employee was particularly affronted by this and posted a number of derogatory comments on social media, which led to him being dismissed. It was found that the dismissal was fair, but not paying the employee’s notice pay was unfair, because the situation did not meet the definition of gross misconduct.
- If you dismiss an employee for any reason other than gross misconduct, you must pay their notice pay.
- If you are arguing that a situation is gross misconduct (and therefore does not deserve notice pay) always check with us first.
Q&A - Chris Booth, Partner
1. What’s your favourite thing about working at Clarion?
Friendly and down to earth colleagues resulting in a special working environment, but all with a real talent and focus on what matters to the client.
2. If you weren’t a lawyer, what would you be?
I have always thought it would be great to be a chef, although not sure why – and I am not sure that I would be a good one either !
3. Where is your ideal holiday destination?
Mallorca – the most wonderful of islands.
4. What scares you?
Confined spaces, particularly involving water. During the drama of the Thai boys trapped in the cave, I actually woke up having nightmares of what they were going through to escape.
5. How do you like to spend a weekend?
Friday night watching Leeds Rhinos with my youngest son who has supported them all his life.
Saturday with my wife (a run, a shop, a great pub, the cinema).
Sunday, a game of golf with my eldest son.
6. What three items would you take with you on a deserted island?
Elvis Costello’s entire career collection (hopefully that counts as one), my Paddle Board and a sand iron (plenty of opportunity to improve my bunker play).
7. If you could only eat one meal for the rest of your life, what would it be?
Croque Monsieur – although it would have to be the one from Colbert in Sloane Square, London.
8. What’s the best piece of advice anyone has given you?
My violin teacher at age 12 – “the violin is really not for you” (although I already knew that!)