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Employment law specialists
March 2018 Review

Welcome to our review of March's employment law news.

I am sure that a number of you will be preparing for data protection compliance in accordance with the new EU General Data Protection Regulation (GDPR) which comes into effect next month. I uploaded Canter Levin & Berg's new policy to our intranet on Monday and sent notice of the new policy to all our employees (a requirement under the new Regulation). I'll be uploading a compliant template policy with guidance notes in the next few days so that our subscribers can do likewise.

Incidentally, while on the topic of GDPR, you may have seen that a number of businesses have been emailing their subscribers, inviting them to "opt-in" in order to keep receiving emails. When sending these email newsletters, we have been using the standards stipulated by GDPR for a number of years. For example, the data that we use to manage subscriptions is encrypted, an unsubscribe link is included at the foot of every email we send and all our servers and backups are located within the EU. Since we operate our subscriptions on an opt-in basis, our readers have chosen to receive our emails and we can therefore rely on "permission/opt-in" and "legitimate interest" to continue sending out these newsletters. Nonetheless, should you wish to do so, you can click here to confirm your subscription or to opt out.

For those of you who have employees who have taken advantage of the Government's childcare voucher scheme, you may be aware that, following a vote in the Commons on 13 March, the Education Secretary agreed to extend the existing scheme until October. This follows lots of complaints about the replacement scheme, which is live, but has been difficult to operate in practice, as well as creating the problem that parents have to pay for childcare up front and then try to claim the Government contributions (20p for every 80p paid by parents, to a maximum of £2000 per child, or £4000 if the child is disabled). The upshot is a mess for both parents and employers, with two schemes running alongside each other and uncertainty about which will prevail.

Somewhat ironically, March also saw the failure of Acas employees to negotiate acceptable terms with their employer. Staff have complained about inadequate consultation concerning cost-cutting proposals and understaffing. The result is that the employees voted by some four to one in favour of strike action.

By the way, if you haven't already done so, I recommend that you take a look at our HR Online service which enables you to maintain your HR records online, with a minimum of fuss and maximum flexibility for both you and your employees. You can watch the video or request a free demo here.

Katharine Kelly commences her maternity leave from this Friday. I know that many of you have dealt with Katharine over a number of years and I am sure that you will join me in wishing her well. During her absence, Tom Sutherland (0151 239 1040 / thomassutherland@canter-law.co.uk) will be on hand to deal with your day to day enquiries, along with Louisa Gardner who will be joining us later this month. You can also contact me (martinmalone@canter-law.co.uk / 0151 239 1003) if you require any assistance.

Kind regards,

Martin Malone

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This month's news
  The AA   The stakes are high when the wrongful dismissal claimant is the former boss of The AA
 
by Martin Malone
 

In June 2014, when The AA was taken public in what was described as a management buy-in, chartered accountant Bob McKenzie was appointed as its chief executive on a base salary of £750,000 and a package, with various benefits, worth some £1.2m per year.

On 1 August 2017 he was sacked for gross misconduct after he was reported to have to have got into a hotel bar fight with one of the Company's senior managers. He was reported to have engaged in "a sustained and violent attack" on the manager which was captured on the hotel's CCTV. Days after the incident he was removed from the board. As a result of being dismissed for gross misconduct, thereby disqualifying himself from any further contractual benefits, he stood to lose what was estimated at the time to be about £100m in share awards. Following his dismissal Mr McKenzie admitted himself to hospital suffering from work related stress.

He was known as strong boardroom performer, driven by financial returns. In an interview with The Sunday Telegraph in 2016 he said of his employment prior to joining The AA:

"Work hard and play hard: you were given targets and you met them or else you parted company."

Shortly following his appointment, chief executive Chris Jansen left abruptly, followed finance director Andy Boland. Mr McKenzie assumed the (much criticised) dual role of chairman and chief executive, assuming greater power in 2015 by absorbing the duties of executive director Nick Hewitt, architect of the business plan that led to the float, who also left abruptly.

Mr McKenzie instructed top City firm Bird and Bird and in January 2018 The AA declared that it was "astonished" that Mr McKenzie had commenced an unfair dismissal claim in the employment tribunal, with the intention of bringing a wrongful dismissal claim for "tens of millions of pounds" in the High Court.

 
 
Read more
 

  Mind The Gap   Gender Pay Gap Reporting: Myth-busting
 
by Tom Sutherland
 

I write further to the deadline for Gender Pay Gap Reporting expiring last week. Much has been made in the media of that deadline being the day by which qualifying employers (i.e. those with 250 or more employees) have to submit the percentage difference in pay between their male and female staff.

The initial results? Nearly 80% of those employers who have responded (some haven’t) have reported higher pay levels to men than women.

So, that means that those employers are discriminating against women, right? Well, not necessarily. But the figures are there in black and white – surely, every employer with a higher pay towards males is inherently sexist? Not really.

The reality is that the figures are suggestive only and there are many legitimate reasons why pay may be skewed either way, whether towards males or females. Let’s take a look and bust some myths about the Gender Pay Gap Reporting.

 
 
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  DPD courier   DPD relaxes onerous terms imposed on its delivery drivers
 
by Martin Malone
 

A year ago I wrote about the onerous terms imposed on DPD couriers, which had come to the attention of the Work and Pensions Select Committee:

"Meanwhile, it has emerged that DPD, which deliver parcels for Marks & Spencer, John Lewis and River Island, fines their couriers £150 per day if they cannot find cover when they are ill. This has resulted in drivers being forced to work when they are sick. The fine, which is described as “liquidated damages”, means that couriers who earn on average £200 a day, lose £350 if they cannot work through illness and are unable to find a substitute."

Chair of the Committee (and my MP) Frank Field, commented at the time:

"The gig economy is producing wave after wave of evidence on the grim reality of life at the bottom of Britain’s labour market…A group of companies now controls the working lives of an unknown number of people, and yet evades its own responsibilities as employers and taxpayers by labelling those people as self-employed… This move [by DPD] makes the rest of the gig economy look as though it operates in the Garden of Eden."

In February 2018 The Guardian reported the sad story of Don Lane, a DPD courier, who was fined £150 for attending a medical appointment to treat his diabetes and who, at age 53, subsequently collapsed and died for reasons connected with the disease. His widow, Ruth, disclosed that he had missed medical appointments because he felt under pressure to cover his round. He had collapsed twice, including once into a diabetic coma, while at the wheel of his DPD van. His fine was imposed when he went to see a specialist about eye damage caused by his diabetes. He collapsed in late December, having worked through illness during the Christmas rush and died in the Royal Bournemouth Hospital on 4 January.

 
 
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  law books   Do the recent Equality & Human Rights Commission proposals to ‘combat’ sexual harassment make sense?
 
by Tom Sutherland
 

The Equality & Human Rights Commission (“EHRC”) is a fantastic organisation that seeks to protect employees and workers from discrimination at work. I regularly read their published Reports and publications because they interest me and keep me informed of potential future developments, which is handy given my sizable discrimination-related workload for employees and employers alike.

The EHRC have recently published their most recent Report: “Turning the tables: Ending sexual harassment at work”. The Report raises well-known concerns about the lack of support provided to, and the pressure and detriment placed upon, individuals who identify sexual harassment issues in the workplace.

As usual, the Report ends with some law reform-based recommendations for the Government to consider to improve matters. And, rather unusually with an EHRC Report, whilst I completely agree with the motive behind the recommendations, I can’t much see how the majority of the recommendations themselves will make much positive difference. For me, it appears to be a case of ‘good intent, bad execution’.

But, rather than simply take my word for it, let’s explore some of the recommendations and have a proper look.

 
 
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    Coming back for seconds: Waiter appeals dismissal for ‘rude, aggressive’ behaviour due to ‘being French
 
by Tom Sutherland
 

As an Employment Solicitor, I deal with multiple discrimination claims. Personally, I find the majority of discrimination claims fascinating. Why? Because they are so varied and can be brought due to behaviour linked (in almost any way) to an individual’s gender, age, belief or religion, race, sexual orientation, disability, marriage or civil partnership, pregnancy or nationality.

As you’ll have no doubt spotted from the unusual title, it’s that last one, nationality, which I want to explore today.

Before we get into the legal angle, let’s quickly look at the facts. A waiter is reported to have taken action against a restaurant in Vancouver for his dismissal last year. His former employer stated that his dismissal was due to his “aggressive tone and nature” with colleagues further to previous verbal warnings as to his “combative and aggressive” behaviour towards fellow staff.

The waiter, Mr Guillaume Rey, has argued that his dismissal (and the reasoning behind it) is discriminatory because French culture “tends to be more direct and expressive”. Yes, that’s right, his core argument is that his confrontational behaviour should have been overlooked and/or condoned simply because he was French.

 
 
Read more
 

Lexcel
Who we are
ABOUT OUR TEAM

Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

Our team is made up of qualified legal professionals who ensure that your business is being guided and supported by the latest and most efficient employment law resources at all times.

   
   
Katharine Kelly
Katharine Kelly
Head of Employment

Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis.

Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.

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Sean Carty
Sean Carty
Head of Commercial and Litigation
Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law and he specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.
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Tom Sutherland
Tom Sutherland
Associate Solicitor

Tom is an Associate Solicitor, who joined the Employment Team in August 2017.

Tom deals with all areas of Employment Law but has extensive experience in disability discrimination and unfair dismissal claims on both sides. His varied experience of acting on both sides of tribunal claims allows him to offer employers detailed and accurate guidance as to likely next steps and effectively analyse disputes.

     
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Martin Malone
Martin Malone
Director and Chief Operating Officer

Martin is a director of Canter Levin & Berg Limited and its Chief Operating Officer. He splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.

     
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