Third Party Harassment

Posted on

Category: HR Alerts

A provision in the Equality Act 2010 was repealed on 1st October 2013 as part of the government’s so-called “red tape challenge”. The provision had made employer’s responsible for a third party’s harassment of their employees e.g. clients, advisers or suppliers, if such harassment by a third party had occurred at least twice before. The Government believes there was no evidence to suggest the old regime served any practical purpose, nor was it an appropriate or proportionate way to deal with the type of conduct that it was originally intended to cover.

Peter Stanway, our BackupHR™ legal expert comments:

Despite the repeal it may still be possible in some circumstances to hold an employer responsible. This is because they may still be liable for the acts of a third party if they take no action when the unwanted conduct which violated the employee’s dignity is ‘related to’ a protected characteristic i.e. a characteristic such as sex or race.

We would still recommend that you make sure that third party harassment does not happen, as part of your general duty of care to employees regarding their health, safety and welfare.

For a free initial chat, please call 01480 677980 and we will be happy to discuss any questions that you may have.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Since 1st September as part of the Growth and Infrastructure Act 2013, employers may offer employees a new form of employment relationship, that of employee shareholder”. In essence” an individual who becomes an “employee shareholder”” will exchange some of their UK employment rights for shares (employee shareholder shares) in the business they work for.””0″

The issue of age discrimination has arisen in a number of high-profile cases recently, with celebrities such as John McCririck claiming ageism in Channel 4’s decision to drop him from their racing coverage. The judgment has not yet been published but according to reports, robust systems, clearly documented concerns about an employee, and following proper procedures counted for a lot. The Tribunal accepted the broadcaster’s argument that its aim was to increase viewing figures. His alleged self-described bigoted and male chauvinist views could potentially undermine their efforts to bring horse racing to a wider audience. The need for change was therefore not down to age discrimination.
The Court of Appeal recently had to consider the slightly more mundane but serious issue of the civil service voluntary redundancy scheme operated by the Department of Work and Pensions. The case (Lockwood v Department for Work and Pensions) concerned a 26 year old employee with 8 years’ service who was entitled to a payment of £10,849 under the scheme. Had she been aged over 35, she would have been entitled to an additional £17,690. Evidence showed that the purpose of the different payments was to reflect the comparative difficulty of loss of employment suffered by the older workers compared to the younger workers.

The court allowed the first ground of appeal; she had suffered age discrimination. However, the appeal was dismissed on the basis that the difference in payments was a proportionate means of achieving the legitimate aim of producing a fair financial cushion for workers until alternative employment could be found, when balanced against the disparate treatment of younger employees.

Peter Stanway, our BackupHR legal expert comments;

Unusually, and by contrast with other forms of discrimination, direct discrimination on the ground of age is capable of being objectively justified. If it is justified, it is not unlawful.

Whilst very different cases, they do show that not every case of discrimination necessarily goes against the employer. This is especially so when employers have good records and clear up to date policies & procedures. This is a key part of what we do for our clients.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

On 14 September 2009 Ms Little started maternity leave prior to the birth of her second child. She applied to her employer Richmond Pharmacology for a flexible working arrangement on her return to work. On 17 June 2010, her application was rejected on the basis that it was not feasible for a sales executive to operate on a part-time basis. She appealed against that refusal. Before an appeal hearing could be arranged, she resigned on 19 July. That same day she was asked by Richmond to reconsider until an appeal hearing took place. On 22 July she attended an appeal hearing. Her appeal was upheld to the extent that she was offered a three-month trial on the terms suggested in her initial application for flexible working. Ms Little did not take up that offer, but instead on 26 July she confirmed her resignation and subsequently made a discrimination claim. The employment tribunal rejected the complaint of indirect sex discrimination as the successful appeal had ‘cured’ the initial ‘detriment’. The EAT upheld the tribunal’s decision, noting that the appeal had concluded before her projected return to work, and she was not put at a personal disadvantage. They noted that the refusal of part-time working was, in this case, conditional on the right of appeal.

Peter Stanway, our BackupHR legal expert comments:

Employers would be right to conclude that an effective appeals process can cure many ills. There is opposing case law on constructive dismissal which is not helpful but this case provides a welcome breath of fresh air and business common sense. It is hard to argue with the comment of the EAT that:

“it is the experience of the industrial members sitting on this appeal that an internal appeal process, consensually pursued, forms part and parcel of the employer’s decision making process”.

The appeal process underpins sound employee relations by demonstrating that Managers are prepared to have their decisions tested when employees’ rights are at stake. Whilst reminding employees of their right to appeal may be viewed as a chore, it can mean the difference between winning or losing a costly discrimination claim.

For a free initial chat, please call 01480 677980 and we will be happy to discuss any questions that you may have, in our own right.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Big Work Survey of 2,000 UK working adults and 500 senior decision makers across Great Britain found businesses could be storing up ‘bigger problems down the line’ because 64% of respondents admit to being stressed at work. Scottish workers are the UK’s most stressed workforce compared with Wales who were the least at just 52%. The top three most stressed regions rank as follows:

  • Scotland – 71%
  • Yorkshire & Humber – 69%
  • North West / West Midlands – 66%

Many of the businesses surveyed by Westfield Health and YouGov acknowledge stress as a problem in the workplace, with over a quarter (26%) saying it is a ‘common pressure’. But nearly all (95%) believe workforce health is important to the success of their organisation.

Nearly half (47%) of employees say their employer does not create a ‘fun and healthy environment’ to work in. 82% of employees had worked over their contractual hours in the last 12 months and nearly 90% of UK workers have done their job while not feeling their healthy best – with nearly three-fifths (59%) admitting they turned up despite being ill because of work commitments. Interestingly our colleagues don’t always help reduce our stress levels, it seems, with the top three workers’ annoying habits rated as regular lateness, gossiping and loud talking.

More than a third (35%) try to counter stress by drinking alcohol and 27% admit to comfort eating both of which will not help health or wellbeing in the long term.

So what should employers do to protect their employees and their organisational health?

Peter Stanway, our BackupHR legal expert comments:

Given that the HSE define stress as the adverse reaction people have to excessive pressures or other types of demand placed on them”The amount of these fees will depend on the type of claim and will be:

  • Type A claims (i.e. the very straightforward ones such as unlawful deductions from wages etc) – £160 issue fee; £230 hearing fee
  • Type B claims (all other claims) – £250 issue fee; £950 hearing fee

 

The fee will be payable online or through a centralised processing centre on issue and before the hearing. The Government hopes in this way to encourage parties to resolve their disputes prior to bringing a claim or before a hearing.

There are all sorts of detailed provisions about multiple claims, failure to pay, and other fees, etc. No fees will be payable in respect of any proceedings underway when the Order comes into force, There are various fee remission arrangements but they are quite rigorous so not many Claimants will find this easy to get through.

Comment

Only time will tell whether these provisions will have the desired effect, i.e. reducing the number of claims being made. Many of the more hopeless or speculative ones should be headed off by the requirement to put one’s money where one’s mouth is.

There is certainly the potential for this cost to be passed on to the Employer at some stage. For example, if a Claimant is successful in their claim, the Employer may be ordered to repay these fees to the Claimant. Given that the initial fee is not high, then the likely impact will come later, with pressure to settle before the higher fee for actually attending becomes applicable. Furthermore, if settlement negotiations are discussed, it is likely that Claimants, and their advisors, would expect all of these fees to be repaid by the Employer as part of any settlement.

The new rules about the Management of Tribunal Cases are also intended to come into force at the same time as the new tribunal charging system, but full details are not yet available.

We would caution against complacency by Employers to avoid costly mistakes being made. Tribunal cases are usually more to do with Employers failing to follow good management practice and their own employment procedures.

Caution

Where an Employment Tribunal finds in favour of a Claimant, it has the power to award various remedies. However, it currently has no power to penalise an Employer for the actual breach of employment law. In order to encourage Employers to take appropriate steps to ensure that they meet their obligations in respect of their employees, and to reduce deliberate and repeated breaches of employment laws, Employment Tribunals will be given the discretion to impose a financial penalty on any Respondent found to have breached the Claimant’s rights.

The provisions relating to financial penalties on Employers were due to come into force in respect of any tribunal claim presented on or after 25th October 2013 but have been delayed for further consideration. Where an Employment Tribunal concludes that an Employer has breached any worker’s rights (note: worker, not employee), and considers that the breach has any aggravating factor then it may order the Employer to pay a penalty to the Secretary of State of between £100 and £5, Senior Managers and all line managers early in the New Year.

Employers who do not manage stress risk low morale, losing key employees through high absence levels, increasing sick pay costs and employee turnover. They also risk expensive personal injury and Employment Tribunal claims.

For a free initial chat, please call 01480 677980 and we will be happy to discuss any questions that you may have, in our own right.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Fees for starting and completing Employment Tribunal claims have been in force since July 2013. As part of The Enterprise and Regulatory Reform Act 2013 provision was put in place to make life tough for ‘bad employers’ who defend claims unreasonably. Tribunals are empowered to impose financial penalties on employers when they breached a worker’s rights and there are aggravating features”. The penalty will be 50% of any award” with a cap of £5

Ms Brito-Babapulle was employed as a Consultant Haematologist at Ealing Hospital. As part of her contract; she was permitted to hold sessions with private patients. Suffering from intermittent health problems which caused her to be off work, the hospital believed that she had continued to see private patients. In the disciplinary process she admitted to the allegation and accepted that what she had done was wrong but asserted that she had failed to appreciate this at the time The disciplinary panel made a finding of gross misconduct and she was summarily dismissed. The Employment Tribunal dismissed her claim for unfair dismissal finding that a reasonable investigation had been carried out, she was dismissed based on a genuine belief that the hospital had reasonable grounds so was inevitably fair.

The Employment Appeal Tribunal however, held that the sanction of dismissal does not necessarily follow an act of gross misconduct in all cases. In their view, she had been found guilty of the charge against her so the tribunal was entitled in the circumstances to conclude that her actions amounted to gross misconduct but ‘mitigating factors’ were not considered. The lay members of the EAT stressed that, although claiming sick pay while working elsewhere was in general regarded very seriously by employers, and in their experience ‘almost inevitably’ led to dismissal, this was not an ‘inevitable conclusion’.

Peter Stanway, our BackupHR legal expert comments:

This decision reflects the ACAS guide ‘Discipline and Grievances at work’, which states that, when deciding whether a disciplinary penalty is appropriate and what form it should take, consideration should be given to:

  • the employee’s disciplinary record (including current warnings)
  • general work record
  • work experience
  • position and length of service
  • any special circumstances that might make it appropriate to adjust the severity of the penalty
  • whether the proposed penalty is reasonable in view of all the circumstances.

It is not new law but it is heartening to have a court confirm the advice we give to our clients. If someone is found to have committed an act of gross misconduct the next decision should always be, are there sufficient mitigating circumstances to consider if a first and final written warning is a more reasonable sanction than dismissal? Dismissal for gross misconduct should only be reserved for cases when the employee’s actions have caused a complete and irreversible breakdown of trust and confidence.

For a free initial chat, please call 01480 677980 and we will be happy to discuss any questions that you may have, in our own right.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Government has published its response to its consultation on reform of the Transfer of Undertakings (Protection of Employment) Regulations 2006. It has decided not to scrap the Service Provision Change (SPC) rules. Instead, the Regulations will be amended to reflect case law so that the activities carried on after the change in service provision must be ‘fundamentally or essentially the same’ as those carried on before. However, the Government does propose improved guidance on TUPE and a number of other changes. These include:

• allowing renegotiation of terms agreed from collective agreements one year after transfer, provided any changes are ‘no less favourable’ to employees,

• allowing changes in the location of the workforce following a transfer to fall within the scope of ‘economic, technical or organisational reasons entailing changes in the workforce’, to prevent genuine place of work redundancies from being automatically unfair,

• amending the law to make it clear that meaningful consultation which begins pre-transfer can count in respect of the collective redundancy rules,

• allowing micro-businesses to inform and consult directly with employees,

• bringing forward the deadline by which employee liability information has to be provided to the transferee from 14 days to 28 days before the transfer.

Peter Stanway, our BackupHR legal expert comments:.

The Government appears to have listened to the 67% of respondents to the consultation who did not support the repeal of the SPC coverage. Removing the 2006 rules would have created significant uncertainty with employers carrying out a SPC being unsure if the change was within the scope of TUPE. This is a major climb-down but a sensible one. The law on this matter is not generally good but some of us remember the lack of certainty prior to 2006, when it was worse.

It is likely that there will be uncertainty over whether activities are ‘fundamentally or essentially the same’ with lots of creativity to exploit this change to the full. If you are outsourcing an existing in-house service then by completely changing its remit and activities may mean that this would no longer be covered under TUPE, and without such liabilities you may get far more competitive quotes. We would however be very cautious about this as TUPE, or avoiding TUPE, requires a lot of thought and planning hence the need to get professional advice.

For a free initial chat, please call 01480 677980 and we will be happy to discuss any questions that you may have, in our own right.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

An intern who worked for Sony has received a £4,600 settlement from them after suing for unpaid wages.

Chris Jarvis, 25, worked from 9:30am until 6pm for three months at Sony’s Cambridge offices in 2012, making a 1.5 hour journey from his home in Milton Keynes. He said that he thought he’d be shadowing a staff member, but was actually working as a tester for Sony’s 3D games artwork. His is reported to have ‘politely informed’ Sony that his role entitled him to the national minimum wage. They said that he was a volunteer, so not entitled to any pay. He reported Sony to HMRC and subsequently sued for unpaid wages. Prior to a scheduled tribunal, they settled for £4,600 – over £1,000 more than his original request!

Peter Stanway, our BackupHR legal expert comments:.

Voluntary workers can only be employed unpaid by a charity, a voluntary organisation, an associated fund-raising body or a statutory body. People can volunteer at a commercial company, but will qualify for the minimum wage if they are doing a real job.

An internship should be an opportunity to gain an insight into the workplace, the chance to acquire skills and experience, make important contacts and ultimately help the individual secure a permanent job. It should not be for the purposes of undertaking work, i.e. adding value.

In taking on interns, employers should:

• ensure they are fully aware of their responsibilities,

• seek professional advice on the particular circumstances,

• put in place measures to minimise the risk of potentially significant claims and bad publicity.

They should document their arrangements with interns using either a fixed-term contract of employment (for interns paid the NMW or more) or a work experience letter of understanding (for volunteers).

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The majority (83%) of female employees move into part-time and/or flexible working roles on their return from maternity leave according to new research with UK HR directors published by recruitment specialist Robert Half. The research is based on a survey based on responses from 200 HR directors in the UK. According to new research by law firm Slater & Gordon, more than one in four mothers feel they have been discriminated against at work while pregnant or after returning to their job from maternity leave. The survey of almost 2,000 UK working mothers also found that 51% feel their employer’s and colleagues’ attitude towards them changed when they became pregnant, while two-thirds said things had been “difficult” for them since they returned from maternity leave.

Peter Stanway, our BackupHR legal expert comments:.

The easy answer to reconcile these findings is that they are asking different questions of very different survey populations but I suspect there is a lot more to it.

Despite the equality legislation, attitudes and working practices continue to block women in achieving their career aspirations. Negative perceptions of women with children is short-sighted and bad for business. It is concerning that a high number of women still feel that motherhood is holding them back in the workplace and that they believe they are being treated unfairly. We hear of mothers complaining about being put on a ‘mummy track’ when back at work, and this research suggests that this is a real experience for many women.

There are onerous legal protections in place. This means that female employees – whether they are pregnant or returning to work as a mother – should not be treated unfavourably whether they are full time or on part time/flexible hours.

Setting aside those legal protections, employers should realise that they are wasting valuable experience and talent when they sideline any section of the population.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.