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Employment law specialists
May 2018 Review

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

Well, thank goodness all the GDPR hullabaloo is over, or at least nearly: I'm still getting a few after the event so-called opt-in emails. As I've been saying for the last couple of months, the over-reaction to the implementation of the GDPR has been quite remarkable. I won't repeat myself but if you want to know my thoughts about the plethora of unnecessary emails you can do so here. A recent survey revealed that 70 per cent of law firms did not send out opt-in emails to their subscriber databases (23 per cent did and 7 per cent didn't know whether they had or not!). More importantly, those of you who have business websites should have an updated website privacy and cookies policy. Subscribers can download a template policy here.

This month's news items include what is undoubtedly the most shocking photograph we've ever published. It's a picture of a bound and gagged DeeAnn Fitzpatrick who alleges that she was subjected to a campaign of bullying and harassment while working for Marine Scotland, a government agency. Louisa Gardner also reports this month about new rules requiring all workers (not just employees) to be provided with itemised payslips and guidance about dress codes in the workplace.

My contribution this month concerns an unusual case in which an employee who, without prior warnings or discilinary proceedings, was dismissed for conduct which was not deemed to be gross misconduct.

Kind regards,

Martin Malone

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This month's news
  DeeAnn Fitzpatrick   Shocking behaviour revealed at Marine Scotland
 
by Louisa Gardner
 

A whistleblower who complained of a racist and misogynistic workplace culture at a Scottish Government controlled Marine Scotland office has claimed she was restrained in a chair and gagged by two male co-workers in response to her speaking out.

DeeAnn Fitzpatrick is a civil servant and Canadian national employed as a fisheries officer at Marine Scotland’s office in Scrabster on the Caithness coast, Scotland. Fitzpatrick claims that she was subjected to bullying, harassment and a sustained pattern of racist and misogynistic behaviour over a period of nearly ten years whilst working at the office. Her claims are currently being considered at an employment tribunal in Aberdeen. Allegations include that she was mocked for having a miscarriage, advised by co-workers that they didn’t want to work with a ‘foreign woman’ and subjected to racist language. Fitzpatrick has been unable to work and has been signed off on sick leave since November 2016, after also experiencing a family bereavement during this time.

BBC Scotland have obtained and released a photograph of the described event earlier this month, taken by one of the men allegedly responsible. It pictures Ms Fitzpatrick gagged and secured in the chair with packaging tape. Fitzpatrick claims that she was subjected to the treatment as a result of ‘blowing the whistle’ on the behaviour of her male colleagues. She has stated that in 2010, two male colleagues had restrained her in the chair before telling her ‘This is what you get when you speak out against the boys’. When Ms Fitzpatrick reported the incident to her manager she was advised that he would ‘have words’ with the colleagues involved but the matter was not reportedly escalated any further.

While the Tribunal proceedings are ongoing, Ms Fitzpatrick is also understood to be involved in disciplinary procedures in the workplace with a hearing due at the end of May. The allegations levelled against her are that she is ‘overzealous’ in the performance of her work duties and is rude to Clients. Ms Fitzpatrick and her supporters feel that the disciplinary procedures are a sham and are in place only to remove her from her position.

Marine Scotland acts as a watchdog for the Scottish fisheries and aquaculture industries and is a Civil Service directorate within the Scottish Government. A government spokesperson has advised a statement will not be made as the issue surrounds ‘internal staffing issues’. The government does not wish to ‘pre-empt’ the outcome as there are internal disciplinary procedures running concurrently with the Employment Tribunal claim. The spokesperson has confirmed however that the government is satisfied that there are ‘clear standards of behaviour which apply to all staff’.

One of the two co-accused Jody Paske - who is no longer employed by Marine Scotland, has dismissed the allegations as ‘office banter’ and ‘Just a craic’.

 
 
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  high heels   Dressing for work
 
by Louisa Gardner
 

The government has released some useful guidance to assist employers in getting to grips with worker’s rights and the law surrounding dress codes in the workplace. The guidance acknowledges that employers should have the power to draft and enforce a workplace dress code policy but must ensure that it is not discriminatory in nature. There is a lot of misunderstanding and confusion surrounding such policies and it can be difficult for employers to get the balance right. Can a policy require a male employee to wear a tie? A female employee a skirt? What should your stance be on manicured nails? While the guidance does not change the law in this area, it does provide some welcomed clarity (although it is not without its critics).

As you may recall, the ‘high heel scandal’ brought dress code discussions to the media forefront back in 2016 after a temp worker, Nicola Thorp was sent home on the first day of her assignment at a large London firm for wearing flat shoes. It was stated within the employment agency’s Grooming Policy that female staff were required to wear smart shoes with a heel height of between two and four inches. Nicola was advised by the agency that she could take time out of the working day to purchase a suitable pair and was sent home without pay when she refused.

As a result of her treatment, Nicola submitted a petition to government to make illegal any policy which forced women to wear high heels at work. The petition received 152,420 signatures over a six month period and gained the right to be debated in parliament on the 4th of March 2017. The government’s view is that the current legislation is clear and sufficient enough as it stands to protect employee’s rights. While pledging to take action to remove the barriers to equality for women at work, the government maintains that employers are entitled to set dress codes for their employees provided that they are reasonable.

A joint report by the Petitions and Women and Equalities Committees however has called on the government to do more – recommending a review of the area of law and a substantial increase in the penalties available to employment tribunals to award against employers for discriminatory practices. It found that discriminatory dress codes remained widespread and if necessary parliament should be asked to revise the legislation to make it more effective.

The government has stopped short of introducing new legislation in this area however, opting instead to clarify the existing law with non-statutory guidance. It advises that dress code standards can be different but must be of a similar standard. For example – it is fine to require a male member of staff to wear a tie as long as there is also a requirement for female employees to dress in ‘smart attire’. This means that there must be similar or equivalent rules laid down for both male and female members of staff and that it is best to avoid any gender specific requirements. Any requirement for example to wear high heels, hosiery, a specific hairstyle, make up or manicured nails will be unlawful, unless the same requirement is imposed on male employees (which is highly unlikely). The high heel example stands out especially here due to the associated health implications and the fact that there is no male equivalent available. Dress codes should not be a source of harassment – either by colleagues or customers, a female employee therefore cannot be required to dress in a provocative way.

 
 
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  dismissal   Is it fair to dismiss for action which falls short of gross misconduct?
 
by Martin Malone
 

It is well known that dismissal can result from a single matter which is usually found to amount to gross misconduct, or as the result of more than one event, with the prior matters resulting in written warnings and/or a final written warning. Indeed, most disciplinary procedures outline this process and generally include examples of what will normally be treated as gross misconduct.

However, in Quintiles Commercial UK v Barongo the question for the Employment Appeal Tribunal (EAT) was whether it was fair for Quintiles to dismiss Mr Barongo for conduct which was initially classified as gross misconduct but subsequently downgraded to serious misconduct.

Quintiles supplies staff for pharmaceutical companies. Mr Barongo started working for them in October 2012 and was latterly engaged to sell drugs for Astra Zeneca. On 5 January 2016 he was dismissed on notice on two grounds. First, he had failed complete Astra Zeneca's compliance training course by the deadline of 3 November 2015 and, second, failing to attend their compulsory training course on 19 November 2015. Mr Barongo did not deny the allegations and he also accepted that they amounted to misconduct on his part. However, he contended that he had been dealing with other matters. He said that he had not intentionally failed to engage with the training but he had chosen to priorities other matters. This had been at a time when he was on a performance improvement plan.

There was a disciplinary hearing conducted with his line manager which took place by telephone. As the EAT pointed out, conducting the hearing by phone might not have been best practice but it was not in itself unfair. His line manager concluded that the duty of trust and confidence which ought to exist between employer and employee had been broken and, as a result, Mr Barongo was dismissed on notice, for gross misconduct.

He appealed against the decision and the appeal was heard by one of the employer's directors, Mr Athey, who took the view that there had been a breach of the duty of trust and confidence, but that it amounted to serious rather than gross misconduct.

Mr Barongo submitted a claim of unfair dismissal to the Employment Tribunal. The Tribunal took the view that the downgrading of the misconduct from gross to serious was highly significant.

 
 
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  payslip   Ensuring employers don’t pay for failing to comply with incoming payroll legislation
 
by Louisa Gardner
 

New requirements for employers to provide payslips are on the way – the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018  comes in to effect on the 6 April 2019. Once implemented, all workers will have the right to obtain a written, itemised payslip at any time before or after their wage or salary has been paid to them. Previously, this obligation extended to employees only. The new law comes after a recommendation by the Low Pay Commission in 2016 and forms part of the Government’s raft of initial responses to the Taylor Review on Modern Employment Practices. The Taylor Review, published in July 2017 set out key recommendations to increase the rights of workers and this new legislation is aimed at ensuring that low paid workers can work out whether they have been paid correctly.

The widening of the obligation will increase transparency in relation to wages and will assist workers in challenging discrepancies. It will also highlight if an employer is falling short of their minimum pay obligations (National Minimum Wage and National Living Wage).

Aside from being necessary evidence for pay disputes, payslips are required by workers for many other purposes - securing credit for a property, securing rental accommodation, proof of loss of earnings and proof of employment generally.

The extension of the right to include all workers will now mean workers in the gig economy and those on casual or zero hours contracts will be entitled to an itemised pay slip where previously they were not.

 
 
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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
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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
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
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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
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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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Louisa Gardner
Louisa Gardner
Employment Paralegal

Louisa is a paralegal and joined the Employment Team in April 2018.

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