by Emma | May 5, 2017 | Newsletter
Work related stress Campaign
One of the Health and Safety Executive campaigns for 2017 is for work related stress
While it is important that businesses have a stress risk assessment in place one of the key areas is the management of employees who are suffering work related stress and/or are off work sick. Businesses must have a policy in place and a procedure if an employee either raises an issue with management or if they produce a Fit note for work related stress. Issues need to be dealt with quickly as it may have a further burden on the business.
ECHR can offer work related stress management workshops for management, policies and procedures, stress risk assessments and stress audits.
Holiday commission payment case
British Gas has lost its final right to appeal a long running holiday commission payment case against a former engineer. Mr Lock launched a legal case against British Gas when they failed to include commission in holiday pay, resulting in a £1,500 underpayment. However, Brexit may prevent the ruling from ever becoming law – watch this space!
New discount rate for personal injury claims
With effect from 20th March, a reduction in the discount rate (which is applied to personal injury damages to reflect interest from investment) will decrease from 2.5% to minus 0.75%. When an employment tribunal gives an award for future loss it generally follows the personal injury discount rate. The reduction will lead to increased awards and hence an increase in employer’s insurance premiums is likely.
£2 compensation award!
An investment management business which claimed £15m in damages for stolen data from departing staff has ended up with just £2 compensation after a High Court judge ruled that no injury had been sustained.
The company had sued James Seddon & Luke Bridgeman after files were copied prior to their departure from the business. Marathon’s case was not that the files were used or any loss was suffered, but that the defendants should pay the value of what they had taken.
This judgment serves as a warning to anyone attempting to assert significant losses for the removal of company documents. Marathon’s £15m claim and £2 payout show how widely perception of value can differ from the actual amount that can be reasonably claimed in damages, and how hard it can be to establish a realistic usage value for commercial documents.
Woof Woof!
The craft beer company BrewDog has just introduced Puppy Parental Leave – meaning that staff members don’t have to take holiday days to care for their dogs. Once the leave period has finished, staff are then welcome to bring their pets to work. BrewDog’s Aberdeenshire HQ currently boasts around 50 regular office dogs. This company offers paid puppy leave for new dog owners.
Debenhams miscalculation – even larger companies can get it wrong!
Debenhams miscalculated the number of weeks’ pay per year for around 12,000 employees meaning their pay was under the minimum wage, meaning they were fined £63,000.
The employees were underpaid by an average of £10 each in 2015, forcing it to pay back almost £135,000.
If you have employees on salaries, make sure that they factor down to a minimum of the minimum wage hourly rate using 52.17 weeks in a year (not 52).
Also, be mindful that any deductions made from pay don’t put you in breach of the minimum wage regulations. For example, asking staff to pay for their uniforms, removing accommodation deposits from salaries (resulting in their hourly rate being below the minimum wage) are in breach of the regulations.
Religious Symbols
The European Court of Justice gave rulings on two cases relating to religious symbols in the workplace.
Achbita v G4S, says that banning all religious, political or philosophical symbols in the workplace isn’t direct discrimination – though to ban symbols from just one religion would be. This ruling also said that banning religious symbols would be indirect discrimination if it had a disproportionate effect on a particular religion or belief.
Bougnaoui v Micropole, adds that to ban religious symbols in response to a customer’s wish not to be served by someone wearing a headscarf would be direct discrimination, and would not be justifiable.
Indirect discrimination will not be unlawful if it can be justified in respect of a legitimate aim. Guidance suggests that an employer’s desire to project an image of neutrality toward its customers is a legitimate aim. However, a ban on religious symbols and if its justified, will always depend on all the circumstances. The ECJ suggested that banning religious symbols was most readily justifiable in customer-facing roles and that the employer should have considered offering a post not involving contact with customers.
Unfair dismissal – new evidence given at appeal!
In O’Brien v Bolton St Catherine’s Academy, the claimant had been absent from work for more than a year at the time of her dismissal and there was no certainty as to when she would return. At the initial capability hearing, there was no clear medical evidence of the claimant’s prognosis or any indication of when she might be able to return to work. The claimant was dismissed. At her appeal hearing the claimant produced evidence that she was fit to return to work imminently but her appeal against dismissal was rejected. She brought claims for direct disability discrimination, unfair dismissal, discrimination arising from disability and automatically unfair dismissal.
The Court of Appeal upheld the claimant’s claim for unfair dismissal. Although the claimant had been absent for an extended period of time and the nature of the evidence about when she might be fit to return was initially unsatisfactory, the decision to dismiss did not take account of new evidence that she would be fit to return. In the Court’s view it was unreasonable of the employee to have disregarded this evidence without at least a further assessment by its own occupational health advisers.
Where there is a change in circumstances between the dismissal hearing and the appeal hearing the employer should take this into account before rubber-stamping the initial decision. Any evidence that an employee is fit for work should be properly considered. Finally, where an employee produces updated medical evidence at the appeal hearing, the decision to dismiss must be fair on the basis of the information available to the employer at the time of the appeal.
Case struck out as claimant discusses her case with a journalist!
In Chidzoy v British Broadcasting Corporation, the claimant was cross-examined by counsel for the BBC for two days during the course of her tribunal hearing. She then returned to the witness stand for a third day of cross-examination. Each time there was a comfort break from the tribunal the claimant was reminded that she remained under oath and should not be discussing her evidence or any aspect of the case with any person during the adjournment. During what was probably the last adjournment the claimant was seen in discussion with a third party (later identified as a journalist). The BBC applied to strike out the claim on the basis that, despite clear warnings that she was under oath, the claimant had discussed her evidence with a journalist.
The tribunal struck out the claimant’s claim on the basis that her conduct had been unreasonable and had showed a disregard for the tribunal’s instructions. The tribunal also considered that a fair trial was no longer possible and that ordering the hearing to start again before a different tribunal would not be proportionate.
