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Monthly Archives

February 2021

Will the Furlough scheme be extended?

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It is being reported that the Chancellor is preparing to extend the Coronavirus Job Retention Scheme, which is due to end on 30 April 2021. The extension, expected to be announced in the Budget on 3 March 2021, will allow workers to remain on furlough into the Summer, before the scheme is phased out. This will be part of a package of continuing measures to support businesses, including an extension of the business rates holiday for the retail, hospitality and leisure sectors which is due to end on 31 March 2021.

 

This may be for your consideration if you are thinking about making positions redundant. Call your Advisor before you take any action or start a process 01422 822842

 

We will of course keep you well informed.

 

In closing, follow us on Twitter @ElconsLtd and Facebook under Elcons Employment Law Consultants Limited for regular updates too.

Female Christian actress has her claim for religious discrimination, breach of contract and harassment rejected.

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Sevi Omooba was dismissed by Leicester’s Curve Theatre in 2014, six days after posting on Facebook “I do not believe you can be born gay, and I do not believe homosexuality is right, though the law of this land has made it legal doesn’t mean it’s right.”

 A virtual Tribunal heard of the social media backlash and an exchange between the theatre and Ms Omooba in which she maintained her views.  The Tribunal also received information that the theatre had offered her full salary which she refused, instead choosing to bring legal action against the Trust for £4,309 from the theatre plus a further £25,000 for injury to feelings and reputational damage.

Ms Omooba also pursued a claim against her former agency from which she was also subsequently dismissed following news of the comment claiming £98,752 for loss of earnings, future losses, injury to feelings and reputational damage.

Ms Omooba’s claims of discrimination, harassment and breach of contract were rejected by the tribunal who dismissed her suggestion that the dismissal amounted to discrimination on the grounds of religious belief.  Moreover, the Tribunal panel concluded the reason for the dismissal was “the effect of the adverse publicity from [the 2014 post’s] retweet, without modification or explanation, on the cohesion of the cast, the audience’s reception, the reputation of the producers and ‘the good standing and commercial success’ of the production, that were the reasons why she was dismissed”.

In relation to the harassment claim, the panel concluded: “In the view of the tribunal Mr Stafford [Chris Stafford, chief executive of Leicester Theatre Trust] did not have the purpose of violating the claimant’s dignity or creating an intimidating or humiliating environment for her. His purpose was to save the production.”

The claimant’s argument that her characters sexuality was ambiguous and “she would have refused the role if she had considered her gay” was rejected by the panel who concluded “She had taken part in a similar production, she had the script, and knowing that a lesbian relationship was at least one interpretation, she should have considered much earlier whether a red line was to be crossed.”

 

Uber loses appeal to the Supreme Court

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BREAKING NEWS: UBER loses appeal to the Supreme Court – their drivers are ‘workers’

Judgement handed down on 19th February 2021

Uber is a private hire vehicle booking service operating within the UK and internationally. Drivers have a smartphone app which links them with passengers. A claim was brought by the drivers that they are not self-employed but rather that they are workers therefore entitled to national minimum/living wage, paid leave and other legal protections which are afforded to workers and not to self-employed. The argument about employment status was a preliminary issue at the Employment Tribunal which found the drivers were workers and were working from the point which they had the Uber app switched on, were within the territory they were authorised to work within, and they were able/willing to accept new assignments. This decision was then appealed to, and rejected by, the Employment Appeal Tribunal, Court of Appeal, and today the Supreme Court.

This case has been closely followed by those working within the “gig-economy” and will have considerable financial implications for Uber and other companies which provide work on this basis. Uber now face a bill for drivers’ pay for all the time which the drivers had their app switched on (and not just when they had a passenger). Backpay would be limited to 2 years’ pay or £25,000 (whichever the larger) in an employment tribunal but this could be 6 years’ back pay where a claim is brought to a county court.

It is important to bear in mind that the Tribunals and Courts will not be swayed by the documentation which you have in place but rather will look at the nature of the relationship itself to determine the employment status.

 

 

1.7million added to the list of people who need to shield

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The number of people being advised to shield from coronavirus in England has nearly doubled after a change in health guidance, including almost a million who are of working age.

An additional 1.7 million people have been identified as clinically extremely vulnerable to coronavirus, the Department of Health and Social Care (DHSC) announced yesterday.

Of the new additions to the list, 820,000 are under the age of 70 and are unlikely to have been vaccinated.

Therefore they will need to be able to work from home or be offered furlough if possible!

Long serving employee was unfairly dismissed for complaining about his boss on Facebook – Tribunal rules

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A paint sprayer, Michael Austin, who had worked for his employer for 5 years before being dismissed was involved in an “extremely heated discussion” with his boss about the Company’s alleged poor work.

That evening Austin wrote on Facebook “I don’t think I’m a bad person, and I don’t think I have ever felt so low in my life after my boss’s comments today”.

A number of his friends commented on his post some of which were deemed “inappropriate” including some being homophobic and another telling Austin he should “punch his boss in the face because it would make him feel better”.

Austin was asked by the workshop manager to attend a meeting in his office with a witness present. Austin was told the meeting was to discuss his use of social media, the Tribunal heard, and it was only once the meeting was underway that Austin became aware it was a disciplinary hearing. The Tribunal heard Austin was “shell shocked at the way in which he was brought into the disciplinary meeting”.  It was referenced by the employer that the use of social media was covered in the Handbook, which it wasn’t.

He was suspended whilst they made their decision.

The next day Austin was telephoned and told he was dismissed and that a letter would follow in the post. On the same day he was informed in writing that he had been dismissed on the grounds of gross misconduct and was therefore dismissed without notice.  Austin appealed but the dismissal was upheld.

The Employment Tribunal ruled that he was unfairly dismissed due to inadequate investigation, failure to be given proper notice of the hearing or opportunity to prepare for it, along with any evidence of details of the allegations and awarded Austin £28,560.

How to avoid this:–

  1. Ensure that you have a detailed Social Media Policy, setting out what your standards and expectations are and what the consequences are for employees who breach it. Set out what constitutes Gross Misconduct when using social media. Ensure it is well communicated and that managers are trained in its application.
  2. Carry out a full thorough investigation before you take any action which is detailed and does not leave any stone unturned.
  3. Follow a fair and non-discriminatory disciplinary process in line with the ACAS Code of Practice, giving reasonable notice of the hearing, offering the right to be accompanied at the hearing and at the final stage of the process allow the right of Appeal.
  4. The appeal allows the dismissal to potentially be overturned and/or to correct and incorrect process, so it is an essential step that should not be missed.

In summary, speak to your Elcons Advisor before doing anything!

Don’t forget our weekly complimentary online training courses.

Book on the disciplinary process training where we go through the correct processes.

To request a training booking form please e-mail Rachelh@elcons.co.uk. Complete the form and return it to Rachel. It’s as easy as that!

Employer’s Vicarious Liability and The Reasonable Steps Defence

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An employer can be vicariously liable for the harassment of one employee by another. One defence which can be put forward by an employer is the ‘reasonable steps’ defence under section 109(4) of the Equality Act 2010 which states:

‘In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A—

(a) from doing that thing, or

(b) from doing anything of that description.’

 

In some instances, the provision of training can form part of the ‘reasonable steps’ defence but not where that training has become ‘stale’ as in the recent Employment Appeal Tribunal case of Ally v Gehlen UKEAT/0031/20/AT.

The EAT in this case decided that the claim was brought following racist comments made to an employee on a regular basis. Training had been given by the employer over a year before the comments and had done nothing to hinder the comments taking place. There had been no refresher training, which would have constituted a reasonable step, until after the comments had been made. Given that training was later provided to the individual making the comments, the EAT deemed that the employer must have held an opinion that it was effective therefore it should have been held sooner. This was also coupled with concern that managers failed to report comments even though they were aware of them.

 

Being able to evidence that regular training has been carried out in line with your equal opportunity policy is always best practice and would assist to form a defence, if needed.

 

Call us for advice 01422 822842.

Government Kickstart Scheme

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If you employ anyone in conjunction with the Government’s Kickstart Scheme and need a contract for them, get in touch! Remember a contract of employment is a Day 1 right.

The scheme is aimed at providing fixed term job opportunities for people aged between 16 and 24 who are receiving Universal Credit and are deemed to be at risk of long-term unemployment.

Interesting Employment Tribunal case summary

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Asian food manufacturer discriminated against worker who was told he didn’t understand recipes because he was white.

 

Mr Colin Sorby (‘the Claimant’), a production operative on a zero-hours contract with Bradford Management Services LLP at Mumtaz Foods, submitted complaints of harassment, direct discrimination, and victimisation at the Employment Tribunal.

 

The Tribunal heard that on 16 October 2019, Mr Azeem Akhtar, the Claimant’s supervisor, told him that “this is an Asian company” and the Claimant should “go and work for an English company.” This comment led to the Claimant contacting the company’s HR department to report the remark. The Tribunal found that this comment was unwanted, it impacted upon the Claimant’s dignity, and it was related to his protected characteristic of race, therefore, his complaint of harassment succeeded.

 

On 1 November, the Claimant was called to a meeting with HR Representative Mr Paulo Silva, where there was a discussion about his attendance and performance. Before that meeting, there had never been any issues raised regarding the Claimant’s attendance and performance and he had never been subjected to any attendance or performance management policy or proceedings. On 5 November, the Claimant was informed he was being “placed on call” and that he would not be offered any more work because of his poor attendance and performance. The Claimant was told by Mr Silva that he was English and not Asian and therefore “didn’t know how to cook the food properly”, but there had been no mention of any such incapability at the 1 November meeting. Mr Silva informed the Claimant that the allegations had come from Mr Akhtar and it was his decision. The Tribunal found that the Claimant had been subjected to less favourable treatment and it was related to his protected characteristic of race, therefore, his complaint of direct discrimination succeeded.

 

On 12 November, the Claimant raised a grievance where he claimed he was subjected to direct discrimination and the treatment was racially motivated. On 25 November, a letter was sent to the Claimant inviting him to an investigatory meeting concerning allegations of gross misconduct. No reference was made to his grievance. At this point, the Claimant specifically stated that he was being victimised and had suffered a detriment as a result of raising a grievance. The Tribunal found that the raising of a grievance amounted to a protected act and the failure to deal with the grievance and indicating dismissal for unspecified allegations of gross misconduct amounted to a detriment. The Tribunal concluded that the reason for the Claimant’s treatment was because of the protected act, therefore, his complaint of victimisation succeeded.