Canter Levin & Berg Employment Solutions

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March 2015

the employment law briefing

Welcome to this month's newsletter. There is no doubt that the big media story of the month from an employment law perspective is the sacking of Jeremy Clarkson by the BBC. I rather liked the way that the Huffington Post put it: "Man Loses Job After Punching Colleague In Face". The factual report is interspersed with the most hysterical tweets and, of course, the controversy reached a whole new level with reports over the weekend that BBC Director General Tony Hall (Baron Hall of Birkenhead) received death threats from outside the UK.

The probability is that Clarkson was not an employee of the BBC but a contractor. You may recall that the BBC came under fire a few months ago for retaining leading presenters on freelance contracts as opposed to employment contracts with a view to minimising tax in a manner beneficial to both parties. However the general principles are much the same. Clarkson was already on a "final warning" as result of the "eeny meeny" out-take last year. Most would agree that a prolonged verbal assault of the most extreme form (20 minutes) followed by a physical assault lasting 30 seconds (think about it - that's quite a long assault) would constitute a sound basis for single incident gross misconduct dismissal, regardless of the background and any extenuating circumstances. Worse for Clarkson, he doesn't offer any extenuating circumstances. The facts are not disputed and he went to the victim's house in an attempt to apologise for his actions.

What else could the BBC have reasonably done? What if the tables were turned and Clarkson had been assaulted by a junior employee? Of course, the correct answer is that there should be no difference? What message would have been sent out if Clarkson had been allowed to get away with it and how often would that have come back to bite the BBC when dealing with similar claims? There is a propensity in certain sectors of the media to target the BBC as a "trendy leftie" organisation (the Daily Mail is rumoured to employ someone for precisely this purpose!). However, the truth is that any sensible employer would have acted the way that the BBC did. Doing the right thing can sometimes be very expensive but that does not make it wrong.

Meanwhile, elsewhere in the world of employment law this month's articles cover topics including whether Type 2 diabetes is a disability, restricted reporting orders, holiday pay and commission and left-wing democratic socialism as a protected belief.

Kind regards

Martin Malone

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This month's news round-up:

1. is type 2 diabetes a disability?

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Some 3.1 million people in the UK currently have Type 2 diabetes and the number is expected to increase to 4 million by 2025. Of course it is unlikely that there has been an exponential increase in the number of diabetics in the last few years and it is far more likely that there is an increased willingness to make a diagnosis of Type 2 diabetes. Type 2 diabetes was not identified until the 1930s and not treated until the 1950s. Currently it is estimated to affect 6% of the world's population.

As such it has the capacity to be a disability suffered by a significant proportion of the workforce. But is it?

In Metroline Travel Limited -v- Stoute His Honour Judge Daniel Serota QC, sitting in the Employment Appeal Tribunal, decided to address the issue. At a preliminary hearing in the Watford Employment Tribunal Judge Smail decided that Mr Stoute, who suffers from Type 2 diabetes, was disabled within the meaning of the Equality Act 2010. Mr Stoute was employed as a bus driver from 1992 to March 2013 when he was dismissed for gross misconduct. His substantive claim was rejected but, at a hearing in September 2014, Mr Recorder Luba QC suggested that there was a real chance of showing that anyone with Type 2 diabetes "had in consequence of that fact alone met the statutory definition of disability in the Equality Act 2010". It was this aspect that Judge Serota went on to consider.

The Judge noted that there were times when Mr Stoute was not taking medication to reduce blood sugar levels, relying instead on a diabetic diet by avoiding, for example, sugary drinks. The Judge noted that a diabetic diet was also likely to include avoiding foods with a significant sugar content such as sweets, chocolates a fruit juices.

Judge Serota made clear his scepticism about whether managing one's diet could be regarded as a course of medical treatment.

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2. restricted reporting orders

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Employers with experience of dealing with employment tribunals know that disaffected current and former employees can often view them as a way of causing embarrassment to the employer. Frequently, claim forms include details which are quite irrelevant to the claims made. On the other hand employment tribunals can provide a forum for claimants, particularly those making claims related to whistleblowing, to expose serious wrongdoing by employers, regardless of the potential to cause embarrassment. There is therefore a balance to be struck.

As with other proceedings employment tribunals have the right to make restricted reporting orders in appropriate cases. The scope of such an order was recently considered in the Employment Appeal Tribunal in the appropriately anonymised matter of EF & NP v AB, CD and others. Claims in the employment tribunal alleging constructive unfair dismissal, sexual harassment, sex discrimination, victimisation and unlawful deductions from pay had been dismissed in June 2013. The claims had included lurid allegations of sexual harassment and abuse by EF in some of which his wife, NP, was alleged to have been involved.

AB had threatened to publish the allegations as well as disclosing text messages and photographs regarding sexual activities alleged to have involved EF and NP. EF obtained an injunction restraining publication in proceedings in the High Court which also made a full reporting restrictions order save that AB was entitled to commence employment tribunal proceedings.

The employment tribunal proceedings were commenced on 3 May 2012 and a temporary reporting restrictions order was made on 16 May. The order was converted into a full order on 13 August. It was noted that the proceedings involved allegations of the commission of sexual offences. Notwithstanding the reporting restrictions when the hearing took place there was press coverage from which it was possible to identify EF.

When the judgment was issued it emerged that AB was the managing director of CD and EF was the group CEO (what a lot of initials!). AB had alleged that EF had encouraged him to attend sex parties where he had been abused by EF and NP for almost 13 years. The tribunal found that the sex parties did take place between 2001 and 2009 but they petered out long before AB resigned in February 2012. The tribunal rejected AB's claim that EF engaged in unwanted sexual activity with him at a party in 2001. Overall many parts of AB's evidence were found to be unreliable and untrue in material respects.

In February 2012, following whistleblowing allegations about AB made by an anonymous employee EF said that AB wanted £10 million to leave and sign a three years' non-compete clause, for the company to write off his debt and for his daughters (also employees) to be paid £100,000 each to leave. AB said that if the deal was not done he would "see the Respondents [including EF] in court and take others down with him". Two days later AB threatened to publish allegations to the public and shareholders including "abuse of powers of a sexual nature by CEO [EF]".

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3. holiday pay and commission

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Last May I reported the decision of the European Court in Lock v British Gas. It has taken until now for the resulting decision of the employment tribunal in Leicester to be issued.

The judgment itself is unremarkable but its impact is significant since this is the case in which it has been held that holiday pay should include provision for commission that would have been earned had the employee not been on holiday.

Mr Lock was employed from February 2010 by British Gas. His basic pay was £14,670. In addition he was contractually entitled to the benefits of a commission scheme. While on holiday he received only his basic pay. Sales were achieved in the categories of cold calls, hot leads and upgrades. In practice his commission payments greatly exceeded his basic pay. Commissions were based on the sales achieved rather than the amount of work done. He was entitled to 25 days' holiday per annum plus public and bank holidays, during which time he could not earn commission.

The analysis of the relevant law in the judgment is comprehensive but what matters is how it works in practice following the European Court judgment. The way in which it has been achieved is by adding a new sub-paragraph (e) to Regulation 16(3) of the Working Time Regulations.

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4. is an accusation being "too left-wing" harassment related to belief?

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In Henderson v GMB the Employment Appeal Tribunal was asked to consider a claim alleging direct discrimination and harassment relating to Mr Henderson's "left-wing democratic socialist beliefs".

An employment tribunal had found that Mr Henderson had been fairly dismissed but had suffered unlawful direct discrimination and harassment on the basis of the protected characteristic of his "left-wing democratic socialist beliefs" which were held to be protected beliefs. There had been incidents of unwanted conduct by the GMB relating to his beliefs that had the purpose of creating an intimidating, hostile or humiliating environment for him.

Mr Henderson worked as a Regional Organiser for the GMB in North London. His job included undertaking political work as part of the region's political efforts on behalf of the Labour Party. The tribunal found that left-wing democratic socialism included:

(i) a belief in establishing "socialism through democratic processes and [propagating] its ideals within the context of a democratic political system through a working-class industrial and political movement"; (ii) a belief in 'workers' control, that is a term meaning "participation in the management of factories and other commercial enterprises by the people who work there. Crossing workers' picket lines contradicts this aim because it undermines workers' ability to control their workplaces.

Mr Henderson was regarded as an extremely effective and committed employee. The first incident occurred when he was asked to organise a picket line at the House of Commons in November 2011. He did so and publicised it to the media stating that Labour MPs should not cross the picket line. The story was picked up by Sky News and other press outlets.

The matter was raised in PMQs on 30 November 2011 and Ed Miliband was given a hard time about it. Someone at Mr Miliband's office complained about the promotion of the picket line by Mr Henderson as a result of which the GMB General Secretary Paul Kenny called Mr Henderson and shouted at him, saying that his actions were "over the top" and "too left wing". Mr Henderson maintained that following this incident he experienced difficulties with his managers. He maintained that he was given onerous duties in an attempt to make him resign. In April 2012 he became ill with stress.

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