This Web 2.0 piece of workplace suicide has been doing the rounds, I found it at the Employee Factor.
1. Man is offered a job with Cisco ponders whether to take it…
2. And by doing so potentially ruins his prospects there…
D’oh!
The case of Riam Dean, an attractive 22 year old who claims that top fashion store Abercrombie & Fitch relegated her to the stock room due to her prosthetic arm, has received much news coverage. The Guardian reports that:
Dean claims that when she told A&F about her disability after getting the job, the firm agreed she could wear a white cardigan to cover the link between her prosthesis and her upper arm. But shortly afterwards, she was told she could not work on the shop floor unless she took off the cardigan as she was breaking the firm’s “look policy”. She told the tribunal that someone in the A&F head office suggested she stay in the stockroom “until the winter uniform arrives”.
Needless to say if her allegations are proved factually then putting a disabled person out of sight simply due to their disability constitutes clear disability discrimination - both direct discrimination, as she is excluded from some (and probably the best) aspects of her role because of her disability, and under the harassment provisions if a humiliating environment is created.
It’s important to note that A&F deny the allegations, and claim that Dean rejected their efforts to resolve the situation before she resigned. Nonetheless, enjoy as blogger Charon QC pokes some fun at the A&F vision of good looks as taken from their website. As is so often the case with fashion photos, no-one seems to be wearing any clothes. MSNBC reports from America that the brand is “losing its cool” in these straitened times.
This incident shows how uncomfortable some people can become when confronted with disability. You’ll remember the complaints the BBC received from a minority of TV viewers over CBBC presenter Cerrie Burnell, with some concerned that their children were distressed when they saw that she missed an arm, or that they felt unable to explain it to them. Disability only repulses or distresses the ignorant, and of course ignorance is within everyone’s power to overcome, and within everyone else’s duty to dispel in others.
Please take five minutes to watch the excellent piece below that Cerrie Burnell did for the One Show - watching her talk to children sensibly about her disability who are, of course, showing intense curiosity about it, acts as an example to us all.
Disability prejudice: Is the situation improving? - Consumer - Watch more Videos at Vodpod.
Whether or not the Race Relations Act 1976 applies to membership of political parties is uncertain, hence the British National Party’s policy of refusing entry admit non-white members continues unchallenged for the moment. The Guardian reports that this may be challened
However, as the somewhat-conflicted Daily Mail states, the main benefit that comes with its new EU Parliament members is money. And quite a bit of it too. The newspaper reports:
The far-Right British National Party will pocket £5.2million of taxpayers’ money to spread its message of hate in the European Parliament. Party leader Nick Griffin and his fellow MEP Andrew Brons will get paid more than £446,000 each in salary, office and travel allowances every year. The breakthrough will also enable them to siphon more than £147,000 each year directly into party coffers.
Of course much of this will be spent on staff, and here race discrimination legislation does come in. Indeed, there has been some noise on facebook and twitter trying to persuade well-qualified political researchers and agents who are black, or Jewish, or of any other group that Griffin doesn’t like, to polish up their CVs to see how their qualifications and skills compare to people he’ll actually hire. That way some of the BNP’s public funding could be redistributed via the employment tribunal system…
Back in my consultancy days I had many conversations with employers, convinced an absent employee was swinging the lead, haloo with delight when they caught said employee driving past the office / going to Tesco’s / whatever. There’s a common view that if you’re off sick, then you’re confined to bed and the sofa, steaming bowl of water and a blanket on standby.
This simply isn’t true. Pretending you’re too ill to work when in fact you’re well enough would certainly warrant a disciplinary, but the simple fact is that you can be too ill to work but still quite well enough to get on with your leisure time and have some fun.
Two examples from opposite ends of the spectrum:
- Ill worker fired over facebook - A Nationale Suisse employee went home with a migraine, saying she needed to lay down in a darkened room. When the company noticed that she was active on facebook, they dismissed her on the basis that she must have been well enough to work. This simply wouldn’t wash here without further investigation.
- Employee with bad back takes part in surfing competition - One has more sympathy with the employer here, but an Australian appeals tribunal ruled that since he had been medically advised he could safely surf, but was still not fit to work as a baggage worker, dismissal was too harsh a penalty (thanks to Barrister Blog for this story).
If an employee has lied about his or her condition then this is grounds for disciplinary, but unfortunately that’s as far as an employer can take it.
Meanwhile in the UK, new “fit notes” to replace the sick notes issued by GPs are due to come into use in 2010.
Two recently reported decisions on costs Daleside Nursing Home Ltd v Mathew [2009] UKEAT and Verma v. Harrogate & District NHS Foundation Trust & Anor [2009] UKEAT. By way of reminder, the jurisdiction to order costs in the Tribunal arises in the following circumstances:
(i) the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably; or
(ii) the bringing or conducting of the proceedings by the paying party has been misconceived.
The above basis is only the first stage however, and the tribunal then has a discretion on whether or not to order costs. Certainly if (ii) applies there will still be no costs order in the vast majority of cases. Whilst an employment lawyer might look at an ET1 and ET3 and immediately assess the chances of the claim succeeding as low, the Tribunal will always have in mind that the Tribunal is intended to be both a costs free environment in the majority of cases, and also that it should provide a suitable forum for litigants in person to have their complaints heard.
Mathew is an exception, and a rare case of the EAT overturning a Tribunal’s decision not to order costs against a Claimant following an unsuccessful claim. Mrs Mathew, facing a disciplinary, made an allegation that her manager had called her a ‘black bitch’, and claimed race discrimination. The Tribunal found
“We looked at all the surrounding circumstances and the background to this case and preferred Miss Rankin’s evidence over Mrs Mathew’s evidence. If the claimant had been called “a black bitch” she would not have waited for nearly three weeks to raise the issue and done so only because it looked as though she herself might be taken through a disciplinary process. She raised the issue on 6 June 2007 when she was resigning. Such a phrase is so offensive it is incomprehensible that she would not have made her objection much sooner. Mrs Mathew had no explanation for the delay.”
It then went on to order no costs due to it believing the Claimant to have a ‘genuine’ belief in her claim. This reason has no logic to it - if the phrase wasn’t said then Mrs Mathew made it up and lied about it. Where the central thrust of a claim is based on a lie, the EAT decided it was perverse not to order costs. Expect this case to be waved around by both sides in costs applications, as the Tribunal (like many courts) tries to deftly judge one side to be the winner without calling the other side a big fibber.
Verma confirms that it is acceptable to order costs on an unsuccessful strike-out application by a Respondent, and furthermore describes as ‘perverse’ the first-instance decision to allow counsel’s fee at the hearing but not the solicitors’ costs in preparing for it. The Employment Judge seems to have based his decision on the basis that the work done prior to the hearing would have happened in any event, which is clearly wrong. I have to say that I have myself seen parts of costs allowed and others excluded arbitrarily, and this decision does at any rate require Employment Judges to apply some reasoning to the costs orders they make.
Charon QC references an article in the Law Gazette talking of a speech given by Lord Phillips on the rule of law.
The rule of law is a concept poorly understood by most in our country, yet it underpins our constitution and civil liberties.
Please read Charon’s excellent post. Lord Phillips, of course, couldn’t help but refer back to Harriet Harman’s evocation of the dreaded Court of Public Opinion…
Unfair dismissal law was originally written, and is still phrased, such that the primary remedy for unfair dismissal is an order for reinstatement or re-engagement, rather than compensation. They are however a minority, the vast majority of Claimant employees opting for the money instead.
Where they are of use to the employee is where they had long contracts with significant benefits, and where they would find re-employment difficult or impractical. Obviously these points can still be cured with money, but being put back into the same job (or one like it) is still a decision that some employees take.
An order for reinstatement puts the employee back in the same job from which he was dismissed, his original contract is revived and it is in effect as if the dismissal had never occurred. Where this is impractical the tribunal can instead order re-engagement, where the employer must re-employ the employee on such terms as it thinks just. Therefore, if the circumstances of the dismissal had alienated the employee from his particular team, the tribunal could order appointment to a different position within the employer. ‘Re-employment’ is used as an umbrella term for both orders. An employer cannot be compelled to comply with a re-employment order, but if it does not comply then additional compensation will be awarded of between 26 and 52 weeks pay. Because of this, threats of applications for re-employment are used far more often than they are meant, in order to leverage larger settlement offers from employers who would rather cut off their own nose than re-employ someone they spent so much time and effort removing from the company.
In the recent EAT case of Central & North West London NHS Foundation Trust v Abimbola [2009] UKEAT HHJ Peter Clarke runs through what a tribunal must consider if it is asked for a re-employment order. The relevant law comes from s116 of the Employment Rights Act 1996:
116 Choice of order and its terms
(1)In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account-
(a)whether the complainant wishes to be reinstated,
(b)whether it is practicable for the employer to comply with an order for reinstatement, and
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
(2)If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3)In so doing the tribunal shall take into account-
(a)any wish expressed by the complainant as to the nature of the order to be made,
(b)whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.
This case was concerned with that practicality requirement. The Claimant, a psychiatric nurse, had been accused of holding a troublesome patient in a headlock. It was common ground that the Respondent NHS Trust had a genuine belief that the incident had occurred, and that dismissal was a reasonable response to that belief. The Tribunal found that the dismissal was unfair as the employer did not have reasonable grounds for that genuine belief. It also that there had been no contribution to the dismissal by the employee. It ordered reinstatement.
In short, the EAT overturned the reinstatement order because the genuine belief held by the employer as to the employee’s conduct rendered it impractical to put him in such a trustworthy post. The logic is that employment requires mutual trust and confidence and the employer simply could not repose such trust and confidence in the employee. In doing so it followed a previous similar decision in ILEA v Gravett [1988] IRLR 497.
One other item of note from this judgment is that the tribunal can take note of previous unproven allegations in determining the issue of trust and practicability, whereas these are usually disregarded for the purposes of the unfair dismissal itself.
Those barristers who aren’t already should join the Employment Law Bar Association. Their latest offering is a seminar on understanding tax in the context of Employment Law. That may or may not set your heart racing, but what will excite many is that the course is in Birmingham but you can join in remotely, and for free, over Skype. Now that’s about as free as CPD gets. Let’s hope that other courses put on by industry bodies (rather than private companies, who mastered this sort of thing ages ago) follow suit.
Quick reminder on how Statutory Redundancy Pay is calculated. Take your employee’s weekly wage, then award:
- 0.5 week’s pay for each full year of service where age during year less than 22
- 1.0 week’s pay for each full year of service where age during year is 22 or above, but less than 41
- 1.5 weeks’ pay for each full year of service where age during year is 41+.
However, there is a cap on the weekly wage that you use for the first part of the calculation. Presently it’s £350, which together with a cap of 20 years makes for a maximum statutory redundancy payment of £10,500. Although the figure increases by £10 or £20 each year, there have been rumblings that it ought to receive more than an inflationary adjustment. Sure enough, as has been widely reported, the chancellor has increased the figure to £380. Currently we don’t know when the change will apply (it requires secondary legislation), or if it will apply to the similar calculation of unfair dismissal basic award.
Watch this space.
(if you’re wondering why the figure has an effect on the budget, it’s because DBERR pick up the tab for insolvent employers who can’t pay the statutory redundancy payment to employees - which will be quite a few of them in the coming months)
Part of the lack of updates to this blog recently means I’m late reporting on a true employment law internet luminary reaching a real milestone. Daniel Barnett, barrister at 1 Temple Gardens, has been sending email employment law bulletins to just about everyone in the industry, from barristers to CIPD students, for ten years. And 1999 was a looong time ago in the IT world. Most of you, dear readers, may well not have even had an email address for him to write to.
To celebrate his anniversary Daniel launched a charity appeal to try to raise £10,000 for the Starlight Foundation. He’s achieved it in a very short space of time, but you can still donate at http://www.justgiving.com/danielbarnett2009.
