HSE Shiftworkers- New Guidance

Not technically a Tribunal issue but worth reporting anyway - the Health and Safety Executive have published guidance on shiftworkers which might be of interest to some given 3.5 million people work shifts in the UK.

£3725 for gay discrimination

The Pink News and Personnel Today both report the case of Sean Williams v Woodhaven Residential Home. The details are sketchy but the employee got an award of £3725 after being sacked without any procedure and in a discriminatory way because he was gay. The Home claimed he was sacked for poor performance and that he had received a police caution for not paying a taxi fare (not "fair" as one of the reports alarmingly spells it). This defence didn't really work as the employee was able to show that a straight employee had committed a similar offence and had not been subject to disciplinary processes. The killer evidence was from a former manager at the Home who said that the boss turned on the employee when she found out he was gay. The compensation figure seems low but this may reflect the low wages in the care sector and his ability to find another job.

Claim 4 years late - still OK to sue

The Fair Employment Tribunal is Belfast has handed down a decision in the Waterways Ireland case allowing claims of race and religious discrimination to proceed even though the alleged discrimination took place 4 years ago. This is a timely reminder that even though Tribunal claims normally have to be presented within 3 months the Tribunal can extend the time limit if it thinks it is "just and equitable" to do so.

Sacked for going AWOL = Unfair Dismissal

Yet another case where the employer would have been in the right if it had just taken its time. The Scotsman reports the case of David Hunter v Laidlaw Butchers. The employee booked a cruise before getting permission to go on holiday. Permission wasn't granted. He went on holiday anyway and was sacked on his return. The employee won automatically because the employer failed to follow the basic statutory disciplinary procedure. In such a case the Tribunal must increase the award by at least 10%. The report doesn't deal with this but does tell us that the employee's compensation was reduced by 75% because he contributed to the dismissal by going on holiday without permission. He can count himself lucky that the award wasn't reduced by 100%. He got £2000 in the end - if his employers had invited him to a meeting before sacking him he would have got nothing.

Sacked for Knife Threat - £4000 awarded!

Another salutary tale from Scotland. In Kathleen Telford v Castlehead Nursing Home the Claimant is reported to have threatened to to "bleed" a co-worker with a knife. She was sacked for gross misconduct. On the face of it that should be a fair dismissal. However the employer suspended her for a "serious allegation" without specifying what the allegation was. She attended the hearing without knowing exactly what the accusation against her was. This was a breach of the statutory disciplinary procedure and so automatically unfair. She was awarded just over £4000 compensation. This was after the Tribunal had reduced her award by 15% for contributing to her dismissal - which certainly appears to be on the low side. The lesson for employers is make sure you spell out clearly what the allegation is when you invite someone to a disciplinary meeting.

Beware "Landmark" Rulings

Personnel Today report what they consider to be an alarming Tribunal decision for recruitment agencies - they claim that it could lead to full employment rights for temps. From the skimpy details in the report it might be a case of the Press Release being more strident than the actual decision. From what can be gleaned the Temp was claiming holiday pay. Statutory holiday pay is generally accepted as being payable to temps already as they are "workers" under the relevant act. Unfair dismissal rights only apply to "employees" which is a much narrower category than "worker" and depends on issues such as control. I'll try to get a copy of the actual decision to see if the case does live up to its billing.

Tribunal Stats out : huge rise in claims

The 2005/06 Annual Report has just been published. The key findings are:

How many claims
Total claims went up to 115,000 from 86,000 the year before (but are at the same level as 2003/04). Of these claims 12,000 were rejected by the Tribunal without the need for the employer to put in a defence, on technical grounds. About 4500 of these claims were resubmitted and let through. There were only 340 religious discrimination claims and 321 sexual orientation claims.

Unfair Dismissal
22% of claims end up in a hearing. Of those decided by Tribunal the Claimant won 41%. The median award was £4228. For the statistically challenged this means that half of all claimants got more than this, and half got less. Only 62 claimants won more than £50,000.

Sex Discrimination
21% of claims end up at Tribunal and astonishingly there was an 81% success rate for employees. This is an aberration in the figures - last year it was 29% - the cause appears to be a series of victories in class actions covering several hundreds of women. The median award was £5546 and only 4 claimants got over fifty grand.

Race Discrimination
21% of race claims go all the way but of those claimants taking it to the wire only 14% won. The median award was £6640 and only 5 awards were made over £50,000.

Disability Discrimination
16% of DDA claims get to a final hearing where the employee won a quarter of the cases. £9021 was the halfway point in awards. 9 claimants won over £50,000.

This is very useful information for all concerned with the Tribunal system to manage expectations. It may even help to provide a corrective to the media-inspired belief that employers are being fleeced by greedy employees, soft Tribunals and rapacious lawyers. The plain fact is that most employees lose and those that win don't get to live the life of Riley on the proceeds.

Costs Ordered (always of interest to the lawyers...)
580 orders were made by the Tribunal for one party to pay the others costs - a quarter against the claimants, 75% against the respondents.

Resources
Keeping all these claims on the move are 129 Tribunal Chairs (down 1 on last year) and 744 staff (down from 763). The system costs £69.7 million to run (a little less than the year before). Trebles all round for handling more cases with less staff and less money.

"I'm voting for Kilroy-Silk" = Racial Harassment

Yes your PC has gone mad. The Independent's report on Schembri v HSBC plc will no doubt give the Blimps apoplexy. A Maltese woman has won part of her race claim against the bank because a fellow worker said (not to her but) to another employee in the room that she was voting for Kilroy-Silk because he wanted to get rid of foreigners and she was against immigration. So the upshot is freedom to manifest political opinions in the workplace has to come second (and rightly so in my opinion) to the duty to allow employees to work without racial harassment. I wonder though whether the freedom to manifest religious beliefs will come second to the duty to allow employees to work without harassment on the grounds of sexual orientation. If the workplace is to be a neutral space where possibly offensive political opinions are to be left at the front door, is the same to be true for possibly offensive religious views?

As a postscript the Brussells Journal of all things reports that the punishment was £750 - at the lowest end of awards for injury to feelings.

Sacked for going blind!

A horrendous case from the Daily Mirror - Hayley Tudor v Spen Corner Vets Surgery. The first horror was that MsTudor had a stroke after a bungee jump, which then led to her becoming blind. Her employer didn't comply with its duty to make reasonable adjustments and gave her her P45 instead. The Manchester Tribunal awarded £20,000 which is a high award in the context of a gross annual salary of £9000. The case was supported by the Disability Rights Commission who printed this press release.

Sacked by phone - £10,000 awarded

The North West Evening Mail reports the Carlisle Tribunal case of Whitehead v James Fisher Ltd. Depressingly it seems some employers are still unaware that you have to invite employees to a dismissal meeting before sacking them. Firing them over the phone never goes down well with Tribunal members.....

Sacked for refusing to work = Unfair Dismissal

A cautionary tale from the Daily Record - Richard Cassie v William Convery & Sons Ltd. The Claimant (a single parent) refused to work late when there was no one to look after his kids. His employers treated this as a resignation. In fact it was automatically unfair dismissal as the Claimant was exercising the right to take time off to deal with family emergencies. He would have won even if he had had just one day's service with the Company. The cost to the employer £3810 in cash and lots more in bad publicity.

£30,000 for reference fiasco

Some cases just want to make you slap people for being so stupid. Seg Naicker v Stirling Council & Edinburgh City Council is such a case. The Claimant used to work for Stirling Council and left them having presented Tribunal race claims which were settled under a compromise agreement. This agreement contained an agreed reference. The employee applied to join Edinburgh Council. From the press report it appears an officer at Stirling called her opposite number at Edinburgh and warned them that the Claimant was a difficult person. Edinburgh turned him down for the job. Result: £20k from Stirling, £10k from Edinburgh. This is a major wake up call for HR departments on the management of agreed references. Just because the organisation has officially made its peace with the employee it is still at risk if another employee decides to gab off to someone seeking a reference. Also note that here that both former and prospective employers were liable for race victimisation.

£18,860 award for pregnancy discrimination

The Glasgow Employment Tribunal in Karen Smith v Premier Systems (Scotland) Ltd has awarded almost £19,000 as compensation to an employee sacked ONE WEEK after telling her bosses she was pregnant. She was told that her sales performance was poor (or that her phone manner wasn't forceful enough according to The Scotsman) and that she had to go. A textbook case in how not to manage pregnancy in the workplace. £8000 was awarded for injury to feelings.

£93,000 + award for police sex discrimination

It's all go in Watford. The Herts Advertiser reports Michelle Butler v Herts Constabulary under the rather surreal headline of Police Merger Delay. Ms Butler found out she was pregnant 5 weeks into her employment and after her maternity leave was required to work on 24 hour shifts and denied a transfer to a job that did not require night work. The key issue appears to be how quickly the transfer request was denied and the lack of a proper investigation into that request. The Daily Mail have done a sympathetic article on the story but it is worth reading some of the reader comments on it which are very much of the "how dare she get pregnant" variety. Over 30 years since the sex discrimination law came into force some people still don't get it.

£41,300 award in the Watford Tribunal

The Watford Observer reports Mohammed Ben-Khaled v West Herts NHS Trust where the claimant won £41,300 damages for unlawful sex and religious discrimination and unfair dismissal. Astonishingly the Trust were not represented. A costly lesson in how to manage litigation....

How Tribunal Users Really feel...

The DTI's excellent research unit has published "The experience of claimants in race discrimination cases". At 213 pages it is not the most convenient document to read so I've distilled some of the more interesting findings:

"Most claimants did not inform their employer they would be applying for a Tribunal." This is worrying given the 2004 Rules make employees complain internally first (or "grieve" as some lawyers are rather horrendously calling it).

"At the outset, claimants were confident they could win their case, being convinced that they were in the right." Well that's not an enormous shock really is it!

"Representatives were often involved in cases that were withdrawn or settled prior to a main Employment Tribunal hearing." This may well be because some realism was introduced into the proceedings.

"Although claimants had not been motivated by money they rarely felt that the sums they were awarded were sufficient compensation for what they had been through." As one of my bosses once said " its not the principle - it's the money"....

"On the whole, claimants did not feel adequately prepared for the Tribunal hearing, and did not know what to expect."

"Claimants felt that the Chair, and whether or not they were sympathetic towards the claimant was central to the way they experienced the hearing."

"Claimants felt that the balance of power rested with the respondents as they had more experienced legal teams, more financial resources and a greater number of witnesses."

"Claimants who were unsuccessful at Tribunal attributed this to factors including bias in the panel, lack of witnesses, insufficient evidence, having to represent themselves, or the inexperience or incompetence of their representatives." Rather than say the fact that they had no legal claim or gave hopelessly confused evidence.

"Successful claimants were not always satisfied with their case outcome. This was either because they felt they had not been awarded enough money or because of a perceived lack of formal cautions or punishments directed at employer-respondents."

"Most claimants reported that the case had a negative impact, they had found it very stressful, and many said that it had worsened their physical health and emotional well-being."

"Claimants who represented themselves often experienced some of the worst effects on their health during their cases."

"Claimants felt that the process of taking an Employment Tribunal case was not ‘user friendly’ enough, that it should be less formal and less reliant on legal terms and knowledge. They felt that securing good representation and providing evidence were very important." As indeed they are in all cases.

Employers Liable for ALL forms of Harassment

The House of Lords has today ruled unanimously in Majrowski v Guy's & St. Thomas' NHS Trust that an employer can be liable under the Protection from Harassment Act 1997 for harassment committed by an employee in the course of employment. Such claims can be brought in the County Court or High Court but not in the Employment Tribunal. The time for bringing such a claim is 6 years. This gives employees who have missed the 3 month deadline for bringing Employment Tribunal claims under the discrimination legislation if they have been harassed at work by another employee. It also gives employees who have been the victims of harassment which does not fall under the current discrimination headings the chance to sue their employers for the harassment.

ACAS Concilliators at the Tribunal?

I've recently appeared before the Northern Ireland Industrial Tribunal and noticed that a Labour Relations Agency (the Ulster equivalent of ACAS) Concilliator was in attendance to help parties settle cases. The Concilliator was only there for the cases where there were Case management conferences and pre-hearing reviews. So the first question for GB Tribunal users (and any ACAS officers out there) is "Should ACAS send concilliators along to Tribunals to help settle claims at the case management/PHR stage?"