The news is full of a possible £12 million pounds payment to bullied city lawyer Gillian Switalski. From the Guardian report:
Switalski claims she was forced out of her £140,000-a-year job in September 2007 following 18 months of bullying and harassment. A tribunal heard her manager Marrack Tonkin criticised her for choosing flexible hours that gave her more time with her children, one of whom had cerebral palsy and another Asperger’s syndrome. Tonkin was said to have become “fixated” with her working hours while a male colleague who had children with special needs was allowed to work from home to help care for them.
The tribunal was told Tonkin “had a particular difficulty” working with a senior woman older than himself and had been “dismissive” when Switalski complained that when her mother died the company demanded a death certificate so the cost of a cancelled business flight could be claimed on insurance. It was also alleged she was not allowed to join an all-male management committee despite her seniority and that while Tonkin took male colleagues out to lunch several times, she only shared a plate of sandwiches with him while he carried out a career review.
But once you ignore the figures this is (without at all minimising the impact on Ms Switalski) a fairly run of the mill sex discrimination claim, what she seems to have suffered is very similar to the experience of many women in the workplace.
The claim being made by Wolverhampton prison warder Amitjo Kajla has more unique features. Ms Kajla, 22, worked at a young offenders institution. Attractive, she worked exclusively with male offenders aged 15 -22. Needless to say she drew a few comments, and she has been criticised by her employer for dressing too provocatively. Her specially altered size 4 uniform was too ‘revealing’, said the prison, and she wore too much makeup and was too familiar with offenders. The Birmingham Post reports Warren Sullivan, a governor, telling a tribunal:
“[her] uniform was figure hugging and her jumper was sleeveless and tucked into her trousers. It accentuated the female form. The figure-hugging uniform she was wearing could have led to temptation for inappropriate behaviour among the inmates. They are all male aged between 15 and 22-years old. Many have experienced mental, physical and sexual abuse in their lives and the clothes and make-up that Ms Kajla was wearing was inappropriate.”
In addition Ms Kajla, for her part, says that she was called “a stupid little girl” for putting her security at risk when an inmate told her “Miss, you look sexy”, as well as that remarks were made about her appearance by other staff in front of inmates. A far cry from Prisoner Cell Block H.
Interestingly both the Birmingham Post and the Telegraph, who report the above contentions by Ms Kajla, suggest she is bringing a claim for constructive unfair dismissal. From her version of events it would seem that she ought to have included a claim for sexual discrimination, primarily for harrassment. To succeed on her constructive dismissal test she must show that the prison breached the implied term of mutual trust and confidence such to enable her to resign in response. Nowadays, there is also perhaps a requirement to show that the prison acted unreasonably – although this area of the law is still under some discussion. Contructive dismissal is a relatively high bar for an employee to cross. A claim of harrassment would simply need her to show that on the grounds of her sex, there was conduct which violated her dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment for her.
We have to be careful when dealing with the selective choice of evidence yielded up by newspapers, but it seems to me that the prison may well have had reasonable grounds for requiring Ms Kajla to tone down her attractiveness. The actions of other staff may however be in question.
Finally on this thread, what are the employment law aspects for the waiting staff employed at this evening party that got out of hand? When he realised that the party that had hired his manor house as a venue bore more resemblence to the famous scene in Eyes Wide Shut than just the costumes, he very sensibly allowed any waiting staff to go home early. It’s almost as if he’d read about Bernard Manning’s antics in Burton and Rhule v De Vere Hotels [1996] IRLR 596.
Back in March I wrote about the register of ‘undesirables’ in the building industry illegally maintained by Ian Kerr of the Consulting Association, and Jobsworth gave an update in May about the National Staff Dismissal Register.
Ian Kerr has now been convicted of not registering as a data controller and fined £5,000 by Knutsford Crown Court. As the Register reports, Kerr’s Consulting Association kept a register of 3,213 workers based on their relationship with other employees, union activities, and plain old troublemaking. 17 building firms used his services, and may now face prosecution themselves.
This draws further unwelcome attention against the fledgling NSDR, which holds details of its members’ employees dismissed for theft, falsification/forgery, fraud, and the hopelessly broad “Causing a loss to the Company or another party” and “Causing damage to Company property”. Its guidelines, which aren’t available for download, also specify that inclusion on the register cannot be sole grounds for refusing to hire an applicant – which is just plain weird. If an otherwise perfect candidate for stock supervisor is on the register for having loaded all the stock at his last work into his mate’s van, then why wouldn’t that be grounds not to hire?
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.
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.
(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.
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.
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.
