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Employment Newsletter - Spring 2008
Harassment in the workplace
There may be a number of potential claims against an employer by an individual claiming to have suffered personal injury as a result of workplace harassment.
The Harassment Act 1997 was introduced as a means of providing protection to victims of criminal harassment. The provision contained within have also, however, been put to use by employees seeking a quick route to compensation in comparison to the more traditional routes such as discrimination, personal injury and breach of contract to name just a few.
The Court of Appeal has sought to stop the influx of claims under the Act, following the decision in Conn v Sunderland City Council. The Court of Appeal concluded that in order to bring a successful vicarious liability claim against an employer, the employee would have to show that the incidents complained of were so serious that they warranted the sanctions of criminal law.Despite this case, claims of this type under the Act remain open to employees who encounter workplace harassment. Employers should be vigilant to ensure that harassment is prevented and dealt with appropriately, specifically, with the existence of tough anti-harassment policies.
Delusions of Blair!
A former kitchen porter brought a claim against his employer who he believed had conspired against him in cahoots with Jehovah Witness’ and Tony Blair.
In this appeal case, Johnson v Edwardian International Hotels Limited, the claimant sought to appeal a decision rejecting his complaint. The appeal was on the basis that he considered he had in fact originally won his claim at tribunal and the judgement received in the post following, rejecting his complaint, was a forgery!
The tribunal in the first instance, suspecting that the Claimant was "delusional", invited the Official Solicitor to investigate whether the Claimant had sufficient mental capacity to litigate his claim.
On appeal by the Claimant the EAT held that firstly the employment tribunal rules make no provision for the tribunal to appoint a litigation friend and secondly there is, in law, a presumption that a party has mental capacity
In conclusion it is considered that tribunals should be very wary of investigating a party's mental capacity. The judge stated that tribunals are required to deal with "delusional" allegations under their general case management powers. If the case is misconceived, it can be struck out. However, even if the case is not misconceived, it may still be struck out if the party suffering from possible mental incapacity conducts the proceedings in a way which renders the case unmanageable
The result of this case is that employers may be exposed to vexatious or frivolous claims which a tribunal may be reluctant to strike out. Conversely claimants who are genuinely mentally ill will be exposed to costs sanctions where the claim are as a direct result of their illness.
Newsletter Spotlight
The European Court of Justice has held that women undergoing IVF treatment, who have had their ova fertilized but not yet implanted, are not ‘pregnant’, and thus are not protected from dismissal by the EC Pregnant Workers Directive.
Bradley and Jefferies have been working in partnership with The Chartwell Practice and launched Gone Fishing 4 Business a new networking club. Events are held in both Branston and Derby on alternative Wednesdays. If you would like to attend one of these events please contact us.
Unlucky for some
The Employment Appeal Tribunal recently held in the case of Robinson v Tescom Corporation, that an employee had been fairly dismissed after he refused to accept changes to his employment contract. Mr Robinson told his employer that he would work under the new terms specifically stating it was "under protest", apparently believing that this meant working under his old terms. He later insisted on working to the old terms and was dismissed. The case was an unfortunate outcome for the employee but may have resulted in a situation detrimental to the employer, had the employee fully appreciated his options.
Your Useless!
Almost £60,000 was awarded to Louise Manning after she was told that she was useless because she was pregnant. The tribunal found that Safetell, her employers had discriminated against her on a number of separate occasions after learning about her pregnancy.
One specific example saw the employee being told that her BMW would need to be replaced by a “run around”.Mr Medlam, Mrs Manning’s boss was personally ordered to pay a portion of the award in the sum of £23,044 for his part in the discrimination.
Age Concern
Age discrimination is an area of law which has developed significantly over recent years. A case currently before the ECJ which is raising extremely difficult questions for both European law and the UK Courts is Age Concern v Secretary of State (also known as the “Heyday” case).
At present the Employment Equality (Age) Regulations 2006 permit an employer to dismiss an employee who has reached the age of 65. The employee is then unable to bring a claim for age discrimination is respect of a dismissal providing that the correct procedures have been followed.
In Heyday there are a number of questions which have been raised including whether it is fair to have a blanket retirement age.
At present all proceedings alleging retirement discrimination are on hold until the ECJ has made a decision. It may be some time before a decision is reached however, employers may need to start thinking if it is really necessary to have a mandatory retirement date.
ACAS issue draft procedure
Most employers will be familiar with the statutory disciplinary and dismissal procedures. ACAS has recently issued a revised draft code of practice in preparation for the Employment Bill currently before Parliament.
It is intended that the current procedures be removed. It is expected that the changes will come into effect in early 2009 and it is believed that ACAS intend that the new code will coincide with this.
Consultation on the draft code of practice ends on 25th July 2008.
The purpose of this Act is to create a new offence of corporate manslaughter (corporate homicide in Scotland).
The key parts of this Act criminalising gross failures in the management of health and safety causing death came into force on 6th April 2008. The act is not applicable to individuals save for counselling or procuring the commission of the new offence created by the Act . The Act has received some criticism and has been termed unworkable
Sex Discrimination Act (Amendments) Regulations 2008
Changes have been made to the Sex Discrimination Act as a result of the 2008 regulation, which came into effect on 6th April 2008. In broad terms the regulations will:
1. introduce a new definition of sex-related harassment;
2. place liability on organisations (and other employers) for sex/sexual harassment where they knowingly fail to protect an employee from repeated harassment by third parties;3. extend the right of protection from pregnancy/maternity dis crimination; and
4. for women whose expected week of childbirth begins on or after 5 October 2008, improve rights during compulsory and additional maternity leave, including removing the distinction between ordinary and additional maternity leave in respect of entitlement to non-pay benefits.
And finally...
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