Welcome to the January edition of the Gill Akaster Employment Newsletter...

As we scan the legal horizon for dark clouds, there is a distinct patch of blue sky to report.  The Employment Bill 2008 which should receive Royal assent in the summer and come into force in April 2009. The main feature is the repeal of the tedious and unpopular statutory dismissal and grievance procedures which have introduced such a bureaucratic approach to managing work place disputes.  It should also do away with the need to prove on the balance of probabilities that following a different procedure would have made any difference to the outcome, and we will go back to the previous, more pragmatic, system whereby tribunals make their own estimate of the extent to which compliance with a fair procedure would have made any difference to a dismissal.  Tribunals will still be able to increase awards if the employer unreasonably fails to comply with the a relevant code of practice.  When full detail of these provisions is set out we shall cover it in more detail.  For the time being, we bring you a selection of the more interesting employment news items and cases.

Oh, and before we forget, you should be aware that from 1 February 2008 the maximum amount of a week’s holiday for the purpose of calculating statutory redundancy pay increases from £310 to £330 and the upper limit on awards of compensation for unfair dismissal increases from £60, £600 to £63,000.

If you would like to contact us with comments, opinions, or suggestions for things you would like to see covered, please do, and you will find links to the GA employment team at the bottom.

Eoin Fowell

Tribunal Round Up

One unfortunate casualty of the Christmas Season was Mr John Oakes, a 70 year old man in Cairns, Australia who was sacked from his job as Santa Claus in a Cairns Department Store for his rendition of Santa’s famous laugh. His employer, Westaff – an Employment Agency – had all its Santas to say “ha, ha, ha” instead of “ho, ho, ho” because, the word “ho” being American slang for a whore, was thought to be derogatory to women. Mr Oakes persisted in his offensive chanting and was let go.  Westaff denied that this was a factor in the dismissal but have since relaxed their ban on the “h” word, so perhaps Mr Oakes had the last laugh.  This is just one of a number of eye-catching cases to reach the news-stands

Read all about it... »

Equal Pay Claims

Equal pay claims continue to provide much useful work for employment lawyers. As we previously reported, many local authorities are being menaced by claims for eye-watering sums to compensate their many underpaid female staff. Edinburgh City Council has recently bowed to the inevitable and reached a compromise settlement for about 3,000 low paid female council staff, each of whom will receive compensation payments of up to £20,000. The total cost to the authority is expected to be more than £30 million and the individual payments will depend on the length of service.

A case in December 2007 has, however, highlighted the fact that differences in pay between male and female staff may still be justifiable where there is a sufficiently good reason unconnected with gender.

Read more... »

Record Disability Pay Out

A record sum for disability discrimination has been awarded by the Croydon Tribunal recently - £550,499 – in the course of a group action sponsored by the GMB on behalf of 24 of their members affected by a redundancy exercise. 

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First Young Age Claim

A nineteen year old woman has become the first person to win a discrimination claim for being too young.  Megan Thomas was dismissed from her job as Membership Secretary of a London club after just four months, because she was too young to deal with its members.

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Tribunal Round up

Here are a couple of extra items which you might otherwise miss.

Female Bouncer bullied by Gay Night club

The extraordinary richness and diversity of modern working life is exemplified by the recent Tribunal claim by Mrs Sharon Leg whose was dismissed from her job as a female bouncer at a gay night club. She brought a claim against her former employer, a club called Dreams, on the basis that she had suffered harassment for being straight. She said that her manager had repeatedly called her derogatory names such as “breeder”.

The case was heard by the Southampton Employment Tribunal and resulted in £3,222 in compensation for loss of earnings and £3,000 for injury to feelings which, by comparison with other cases of harassment, is a little on the low side.

Race Claim over Indian Accent

It is, of course, a common complaint that telesales staff are often based in the Indian Sub Continent and have a poor standard of spoken English. Even major High Street banks now advertise their UK only call centres. One communication company, Talk Talk Direct, recently found itself in hot water over attempts to Anglicise its call centre staff.

The case concerned Mr Chethan Kumar Meshram, a 27 year old call centre trainer from Northampton. Mr Meshram was born in India but moved to Britain in 2005. He was selected for a two month secondment to Talk Talk Direct’s Dehli office to train staff but was sent back to England after just three weeks on being told that he was to be replaced with a better English speaker.

His claim in the Bedford Employment Tribunal for both direct and indirect race discrimination succeeded. The case is in fact legally straightforward but a salutary reminder of the importance of focusing on the actual requirements of the job to avoid discrimination claims. Mr Meshram admitted that he spoke with an accent but his job was to give technical advice and not to give expertise on how to communicate. The case is similar to a 2003 case involving the BBC who were found guilty of race discrimination for replacing an English presenter on a Scottish rugby programme because they wanted a Scottish voice.

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Equal Pay Claims

Claims were brought against the West Midlands Police Force by a number of female police officers who did not receive a performance bonus because they did not undertake night shifts. Police officers in the West Midlands were operating a three shift cycle with shifts from 7 a.m. to 3 p.m., 3 p.m. to 10 p.m. and 10 p.m. to 7 a.m. Unless excused by child care responsibilities or medical restriction, all officers were expected to work rotating shifts on this pattern. Those who did so could earn a Special Priority Payment of between £500 and £3,000. Those who did not do their share of the unpopular hours between midnight and 6 a.m. were not eligible for the payment.

The original tribunal upheld their claim for equal pay on the basis that the amount of money was not very large given the resources of the West Midlands police, this criteria had a disparate impact on women and they could have avoided this by other means i.e. paying the 29 officers in question with child care responsibilities the same as the others.

The Employment Appeal Tribunal drew the line at paying the claimants a bonus in these circumstances. It held that the question was whether or not the larger payment was justified. While it may be highly desirable that employers adopt flexible work practices which enable women to work part time or at hours compatible with their childcare, it did not follow at all that they should then pay the women on the basis of the work they would have done if they had not had the childcare responsibilities.

The case is a useful reminder that different pay arrangements, such as for anti social hours or rewarding those who undertake more onerous work generally, can still be justified but it was also relevant in this case that the bonus in question was relatively modest. Had there been a big difference in the overall remuneration it may well have been found to be unjustifiable.

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Record Disability Pay Out

The chap in question was 34 at the time of his dismissal and the compensation comprised loss of earning until his retirement. The disability comprised learning difficulties, and having established that this was sufficiently pronounced to amount to a disability, the employer (Lambeth Council) had to show that the criteria used in the redundancy selection exercise did not unfairly discriminate against him.

On the bathing beach of employment law, redundancy exercises are the dangerous rip tide and disability claims the lurking and deadly box jelly fish floating in the surf to sting the unwary.  Any redundancy selection criteria has to ensure that it does not, inadvertently, weed out disabled employees for reasons connected with their disability. For that reason any criteria linked, for example, to attendance records (and therefore health) may be problematical and should exclude any absences relating to the disability.  Learning difficulties are particularly difficult to take into account.  Such a diagnosis will often also mean that the employee has a low IQ and difficulty in a number of areas.  Since the whole purpose of the selection exercise is to retain the best staff, those with learning difficulties will often be the ones selected for dismissal. There will also be the ones least likely to obtain alternative employment elsewhere, and so the biggest claims for loss of earnings.

Of the 24 members represented by the GMB in this case, 4 of them succeeded in bringing claims of disability discrimination (which neatly illustrates the point that 1 in 6 of the population is disabled within the meaning of the Disability Discrimination Act) and the total compensation awarded was over £1.3 million.  We expect the Council will wish to appeal.

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First Young Age Claim

Ms Price's job involved organising poker nights and wine tasting events for members as well as handling subscriptions and general office work.  Had Ms Thomas not been told that she was too young, it is unlikely that she would have had any legal redress. With less than a year’s employment she would not have been able to bring a claim of unfair dismissal. In fact, Ms Thomas was dismissed on a Friday and obtained a better paid job the following Tuesday. Nevertheless the Tribunal awarded her £1,500 compensation for injury to feelings on account of this remark.

Had she not obtained other employment she might also have had a valuable claim for loss of earnings, and given that she was dismissed without any procedure, those losses could be increased by up to 50% by the tribunal.

It is useful reminder of the pitfalls involved even in a simple case of dismissing a new employee at the end of their probationary period. Usually, no procedure is followed and some sort of explanation is offered by the employer. If this explanation involves any reference to their age or – let us say – their maturity or lack of experience, it could well pave the way for a similar claim.
 

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If you would like further information on any employment matters, try these two:

                           Eoin Fowell                           Stephen Allen

                         01752 203513                         01752 203528

                 eoin.fowell@gillakaster.com       steve.allen@gillakaster.com

This newsletter has been supplied for general information.  It does not constitute legal advice and should not be relied upon as such.  Specific advice should be taken about individual circumstances.

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