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November 2015 Review
the employment law briefing
Welcome to our review of November's employment law news. It has been a relatively quiet month in terms of news which is relevant for SMEs. However, the cases covered include practical advice concerning the calculation of holiday entitlement when an employee's working pattern changes, e.g. from part time to full time. While that case went to the European Court of Justice on a direct referral from the Birmingham Employment Tribunal, the French case of Ebrahimian concerns non-renewal of a contract dating back to 2000 whereas the judgment of the European Court of Human Rights was published only a few days ago!
I have also covered the case of Hak v St Christopher's Fellowship which considers the dilemma of finding out whether a party needs a translator when a translator is not present for a tribunal hearing.
The BBC's Digital Media Initiative turned out to be one of its most disastrous failures, costing an eye watering £98.4m by the time it was abandoned in 2013. Chief Technology Officer John Linwood was scapegoated and subsequently won his unfair dismissal case. However, adding insult to injury, it has now turned out that the case cost the BBC nearly half a miillion pounds in legal costs alone when it could have been settled at the outset for £50,000.
Finally, I've commented on some recent research about office Christmas parties, which are apparently declining in popularity. While for some they are a highlight of the social calendar, for others they ordeals to be survived! Which camp are you in and, as an employer, are you providing the right type of party for employees in 2015?
This month's news:
This month's news round-up:
Recent research has shown that 30% of employers do not usually have Christmas parties for their employees. This represents a significant reduction in the number of festive parties since data started being collected in 2009. Some employers have blamed financial constraints while others have said that, quite simply, they're not missed by employees.
According to Evren Esen, director of survey programmes for the Society for Human Resource Management (in the US):
Maybe it's one of those things that's not as appealing to employees any more...Millennial employees may also have different expectations of the workplace and how they want to spend their time at work.
Meanwhile in the UK, reputation and brand management specialist Igniyte, has published the results of a survey which shows that one in four UK employees have vowed to drink less this year, with a view to avoiding embarrassing themselves and/or flirting with a colleague.
The research also shows that nearly one in three employees have flirted with another employee and over one in four kissed a co-worker at a Christmas party. While such activities may at face value seem to be relatively harmless, the research also reveals some more worrying tendencies. Apparently 14% of energy and utility sector workers have been dumped by their partners as a result of their Christmas party behaviour, while 14% of employees in the same sector are planning to confront a colleague or tell them that they don't like them. In the property sector one in ten have received written or verbal warnings following bad behaviour at a Christmas party and, remarkably, 8% of those questioned lost their jobs as a result of what they did.
As a sign of changing times 15% are planning to change their Facebook settings before the party so that they have to approve a 'tag' in a photo or status.
Of course, it is not just employees that may behave badly. The apparently relaxed environment of the Christmas party can cause big problems resulting from the misbehaviour of employers. Every year there are news stories about discrimination in various forms (particularly sex discrimination) and, sadly, reports of serious assaults. It's led some to ask, in all seriousness "is there anything worse than an office Christmas party?". In the words of Constance Watson in The Spectator:
It is almost always a horror show. Colleagues who are cheerful all year round turn into angry drunks. Usually benign bosses become second-rate pimps. The interesting become boring and the boring become interminable.
Her sensible advice is not to be too stingy with alcohol but to keep the party simple and short. If some want to go on and get paralytic somewhere else, that's up to them. Critically however it will not be at a function organised by and very likely associated with the employer. A good case in point in terms of reputation damage can be seen in the case involving MBNA Bank that I discussed last month.
News has emerged of a very costly outcome for the BBC following its failure to defend an unfair dismissal claim brought by former chief technology officer, John Linwood. Mr Linwood was dismissed in 2013 following the disastrous failure of the Corporation's Digital Media Initiative. Launched in 2008 it was intended to modernise production and output by transferring to a fully digital, tapeless workflow. However, after numerous problems and delays, the BBC's contract with Siemens was terminated in 2009. It emerged that Siemens had been appointed without a tendering exercise. At the time of termination in 2009 the BBC's losses were £38.2m but these were partially offset by a £27.5m settlement paid by Siemens.
In 2011 the BBC was criticised by the National Audit office for its mishandling of the project. Details of the sorry tale were set out in the NAO's full report issued in January 2014. Remarkably it continued to limp along until an embarrassing press release was issued by Director of Operations Dominic Coles on 24 May 2013 which confirmed its closure once and for all. Remarkably, by then the overall losses had spiralled to £98.4m. News of the abandonment of the project coincided with the announcement that Mr Linwood had been suspended pending an external investigation. He was sacked in July 2013 and did not receive a pay out.
In January 2014, when giving evidence to the Public Accounts Committee, Mr Linwood revealed that he had brought legal proceedings against the BBC, essentially on the basis that he had been scapegoated. His claim was heard in the London Central Employment Tribunals throughout most of May and four days in June 2014, following which the unanimous decision of the Tribunal was that he was unfairly dismissed. There was a 15% finding of contributory fault.
What makes the story of renewed interest is that it has now emerged that the BBC spent nearly £500,000 on defending a claim that could have been settled for £50,000. A Freedom of Information Act request has revealed that the BBC spent £498,000 on costs, VAT and expenses, plus damages estimated at £80,000. However, an offer to settle of £50,000 had been rejected before the bulk of the legal fees were incurred.
According to the Tribunal judgment a culture of "sacrificial responsibility" at the BBC led to "avoidance strategies" and "the steering of the spotlight of blame in other directions" by those who feared that they would be associated with "a sinking ship".
For many years France has been renowned for its strict adherence to a secular approach in public services. Known as laïcité, it is an ideology which, for many, goes some way to defining what it means to be a modern French person. The approach follows the formal separation of church and state in 1905. There are no hymns or religious assemblies in schools and absolutely no chance of a nativity play at this time of year.
In 2004 the principle of secularism was challenged when thousands of French women and schoolchildren took to the streets to protest their right to wear headscarves in schools. There were technical rules which ought to have allowed Muslim women to wear headscarves in government run establishments such as schools but attempts to do so frequently led to local protests and bans. In February 2004 President Chirac introduced legislation to ban the wearing of all "ostensible religious insignia" in state schools. The legislation was passed easily, by 494 votes to 36.
Fast forward to 2015 and the same issue has been before the European Court of Human Rights in a case which, remarkably, stems from the non-renewal of a fixed term contract in 2000. In Ebrahimian v France, Ms Ebrahimian is a French national who was born in 1951. She was employed on a fixed term contract as a social worker in the psychiatric department of Nanterre Hospital and Social Care Centre. Her contract ran from 1 October to 31 December 1999. On its expiry the contract was extended by one year to 31 December 2000.
On 11 December 2000 Ms Ebrahimian was informed by HR that her contract would not be renewed because she would not remove her headgear when working and following complaints from patients. In a letter sent by the Director of HR she was reminded of a Government declaration that "while the freedom of conscience of public officials was guaranteed, the principle of the secular character of the State prevented them from enjoying the right to manifest their religious beliefs while discharging their functions; accordingly, wearing a visible symbol of religious affiliation constituted a breach of a public official's duties".
Ms Ebrahimian applied to the Paris Administrative Court, as a result of which she was put forward as a candidate for the post of social assistant. However she did not participate in the recruitment process. In October 2002 the Court found that the decision not to renew the contract was in accordance with the principles of secularism and neutrality of public services.
In a further judgment delivered in February 2004 the Administrative Court found that there had been procedural errors. However in May 2005 the decision not to renew the contract was again confirmed. An application to the Versailles Administrative Court to set aside the decision was unsuccessful, as was an appeal to the Administrative Court of Appeal.
Ms Ebrahimian appealed to the European Court of Human Rights in October 2011. In its judgment, issued on 26 November 2015, the ECHR noted that the reason for non-renewal of the contract was her refusal to remove her veil, which was an expression of her affiliation to the Muslim faith. This had to be regarded as interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However...
This is the question that concerned President of the Employment Appeal Tribunal Mr Justice Langstaff in the case of Hak v St Christopher's Fellowship.
Mr Hak worked as a night wake worker at a children's home in Newton Road, Birmingham. He is Cambodian and his native language is Khmer. He has lived in the UK for the last 17 years. In April 2013 he was dismissed, purportedly for misconduct. However, he maintained that it was on racial grounds - because he was not Afro-Caribbean - and/or as the result of making public interest disclosures.
In his ET1 he said that he had texted a co-worker and asked her out for dinner. She declined and he sent a number of texts to her thereafter. In response she filed a formal complaint of sexual harassment. On the day of the hearing of the complaint Mr Hak had filed a report in which he had made a number of allegations about other co-workers, specifically black Jamaican employees. He said that the complainant was being "lured...toward a male worker" and that "something is going to turn the Newton Road into the United Kingdom of Jamaicans as soon as any white female worker there will need to have sexual affairs with a Jamaican male worker". He also said that she was "quite vulnerable because she is on public transport which is easily monitored by this ethnic group in Sandwell areas" and that "she would feel "very unsafe while she is still working and living in the Sandwell area which is full of these ethnic people".
He was called to a disciplinary hearing and was dismissed for what he reported were allegations of "racism...and serious unsubstantiated allegations (my views)". His appeal against dismissal was unsuccessful.
His ET1 set out his complaint in 55 paragraphs over 11 pages of closely spaced written English. The matter was listed for a preliminary hearing on 9 October 2013 and the Respondent indicated that it intended to make an application to strike out the claim. Mr Hak wrote to the Tribunal and made a number of observations including:
English is not my first language and I have not been able to afford the benefit of legal advice, and therefore, I would welcome any suggestions the Employment Tribunal may have in advising how I may set out my case in a clearer format for the other side and the Tribunal to understand;
In response the Tribunal asked him whether he required an interpreter. However, in another letter, the Tribunal said that it was a private hearing and only the parties could attend. Mr Hak asked for an interpreter. However, one speaking Khmer could not be found and the hearing on 9 October went ahead. Employment Judge Kearsley observed:
Whilst the Claimant had demonstrated a good command of written English he indicated that he would struggle with articulating legal arguments in other than his first language. I felt that although I could have made orders today to prepare for a final hearing it would be unfair to the Claimant to face the risk of his claims being dismissed without his having the benefit of an interpreter.
The matter proceeded to a further preliminary hearting on 13 November. Judge Gilroy QC noted that Mr Hak had made a number of derogatory remarks about black Jamaicans, using wholly inappropriate racially stereotypical phrases and descriptions to speak of other employees and his discrimination claim was "wholly devoid of merit". At the same time the employer had valid grounds to dismiss him. However, this hearing also took place without an interpreter attending and Mr Hak said that he "was unable as a result fully to understand the proceedings or sufficiently to present his case". He appealed.
Kathleen Greenfield v The Care Bureau Limited is a decision of the European Court of Justice which provides very welcome practical and common sense advice for those tasked with calculating holiday entitlement when an employee's working pattern changes.
The case was referred to the ECJ by the Birmingham Employment Tribunal in April 2014. Ms Greenfield had worked for The Care Bureau since June 2009. Her working days and hours could vary from week to week. She was entitled to 5.6 weeks' holiday per year and the holiday year ran from 15 June. She left the employer on 28 May 2013, having taken seven days' paid leave during her final leave year (in July 2012). In the twelve weeks prior to taking her leave her pattern of work was one day per week.
However, from August 2012 she worked twelve days on and two days off (taken as alternate weekends). This equated to 41.4 hours per week. In November she asked for a week's paid leave but was told that as a result of the holiday taken in June and July she had exhausted her entitlement to paid annual leave. This was because the entitlement to paid leave was calculated at the date on which the leave was taken, based on the working pattern for the prior 12 weeks. Since that pattern was one day per week she had taken the equivalent of seven weeks' paid leave, thereby exhausting (and exceeding) the annual entitlement.
Ms Greenfield took her case to the Birmingham Employment Tribunal and won. The Care Bureau Limited requested written reasons and the Tribunal proposed to reconsider its decision on the basis that the law was unclear, thereby justifying a reference to the European Court. However, after considering written representations the tribunal decided that a reference was unnecessary and confirmed its decision to find in favour of Ms Greenfield. The Care Bureau Limited appealed to the Employment Appeal Tribunal.
It also applied to the Birmingham Employment Tribunal to reconsider its judgment. It did so and revoked its judgment, partly on account of a mathematical error and also to enable the reference to the ECJ.
Ms Greenfield contended that leave already accrued and taken should be retroactively recalculated and adjusted following an increase in working hours in order to be proportional to the new number of working hours rather than the hours worked at the time that the leave was taken.
The Care Bureau Ltd maintained that EU law did not provide for a new calculation and there is therefore no need to make such an adjustment under national law.
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