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September 2016 Review
Welcome to our review of employment law news in September 2016. We're taking a brief respite from Brexit this month, save for noting that the "Great Repeal Bill" announced at the commencement of the Conservative Party Conference will be considered by Parliament in the 2017-18 session and is more about what will not happen rather than what will. This is because legislation will remain as it is (i.e. having regard to European law) unless or until replaced by new legislation. The upshot is that current laws covering employment rights and obligations will remain unaltered for many years and may not change at all. Plus ca change!

This month's reports cover an unedifying case in which an employee of an anti-abuse charity was subjected to abuse by the charity's boss who, notwithstanding being castigated by an Employment Judge, appears unrepentant; a case which demonstrates that an ACAS early conciliation certificate can remain effective, even if the employee subsequently resigns; a case involving the Metropolitan Police which shows that inflexibly applying an employment procedure can lead to a finding of discrimination; and a case which demonstrates either breathtaking ignorance of equality law or takes "genuine occupational requirement" to a whole new level!.

It's that time of year when I remind you about increases to the National Minimum Wage rates which (for pay reference periods from 1 October) are as follows:
  • £7.20 per hour - 25 years and older
  • £6.95 per hour - 21-24 years
  • £5.55 per hour - 18-20 years
  • £4.00 per hour - 16-17 years
  • £3.40 per hour for apprentices under 19 and/or in the first year of apprenticeship
The compulsory National Living Wage is also £7.20 per hour for those who are 25 and over. Next year's rate changes will take place in April (with further changes each April thereafter). Katharine Kelly has further information about the October changes here.

If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.

Kind regards,
Martin Malone
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Special Offer
OFFER EXTENDED: Until 31 December 2016 we are offering you the opportunity of an on-site audit of your employment documents and procedures from one of our experienced employment lawyers completely free of charge and with no obligation. Who says that lawyers always cost you money? We will conduct a detailed check to ensure that your employment procedures are fully up to date and, if they are not, we will let you know what needs to be dealt with. Surely it's worthwhile, if for nothing else other than the peace of mind in knowing that an independent expert review has been carried out. If you would like to make an appointment please contact Katharine Kelly (0151 239 1079 / katharinekelly@canter-law.co.uk).
You can view our brochure here or download a copy here.

If you would like hard copies of the brochure for you and your colleagues please email me at martinmalone@canter-law.co.uk with your name and address and I will be pleased to send them to you.
This month's news
Ali Khan
Anti-abuse charity employee awarded £90,000 for "calculated and premeditated" harassment
by Martin Malone
Roshni is the Urdu word for "light". In June 2002 millionaire Ali Khan founded the charity of that name which is based in Glasgow. Its stated objectives are: "The advancement of education; the advancement of citizenship or community development; the relief of those in need by reason of age, ill health, disability, financial hardship or other disadvantage". Its intended beneficiaries include children and young people and people of a particular ethnic or racial origin.

Misconduct within the charity became the focus of attention when an employee rejected advances towards her by Mr Khan, a married father of two. According to an Employment Tribunal, sitting in Glasgow, the situation deteriorated when Mr Khan attempted to turn the employee's family against her. He threatened to turn up unannounced at her mother's house to reveal an alleged affair between them.

The employee was so concerned by Mr Khan's behaviour that she had a priority emergency police phone line installed at her home.

Mr Khan reacted to the rejection of his advances by reducing the employee's working hours and she was issued with a final written warning. These actions were accompanied a campaign of physical and verbal abuse including making sexually explicit remarks, threatening to "post a video of them online", to disclose intimate details of her private life, isolate her in the community and "damage her prospects".

A clinical psychologist diagnosed that the employee had been left with major depressive disorder and post-traumatic stress disorder.

The Tribunal noted that the charity did nothing to stop the catalogue of abuse. It found that the Mr Khan's threats left her feeling "very depressed, low and upset as well as powerless" and that she suffered "a lengthy and sustained series of acts of victimisation". She was left in a constant state of "fear for her personal safety". She was awarded compensation amounting to £90,000.

However, the charity has shown a notable lack of contrition following the Tribunal findings.


ACAS early conciliation certificate can relate to a claim where the claimant resigned after the certificate was issued
by Katharine Kelly
Many employers will by now be familiar with the ACAS Early Conciliation (EC) process which was initially introduced in April 2014. The concept of Early Conciliation is that ACAS will attempt to resolve any potential claim before it is formally submitted to an Employment Tribunal - indeed it is now the case that claims must have completed the process and an EC certificate issued before a claim can be lodged.

There are some exceptions to this rule - for example in cases of a claim being made against the Security Services, or another joint claimant already having an Early Conciliation certificate in respect of the matter, however generally the Tribunals have been quite strict in imposing the rule. It therefore may come as a surprise to learn that in the recent case of Compass Group UK and Ireland Ltd v Morgan, the Employment Appeal Tribunal held that the Claimant's constructive dismissal claim was covered by an EC certificate that had been issued before the Claimant had resigned.

The background to the case is that in October 2014 the Claimant submitted a grievance to her employer when she was instructed to work in an alternative location in a more junior capacity to her existing role. In November 2014 she commenced the EC process and on 3 January 2015, the EC certificate was issued after no action was taken to resolve her grievance. The Claimant subsequently resigned and brought two Employment Tribunal claims - constructive dismissal and disability discrimination.

The Respondent initially argued that the Claimant's constructive dismissal claim was not properly instituted as she had not followed the EC process given that she resigned after the EC certificate had been issued. They further submitted that any cause of action occurring after ACAS had been notified, even in circumstances where it relates to facts occurring during the EC process, could not be capable of being pursued without ACAS being notified. At first instance the Employment Tribunal found in favour of the Claimant and held that there was a connection between the matters in dispute during EC and the matters in dispute in the claim itself.

The Respondent subsequently appealed to the Employment Appeal Tribunal (EAT), this time stating that the cut-off date after which the EC Certificate does not extend is the issue of the EC Certificate (not the date of notification to ACAS as was the argument to the Employment Tribunal).


It's not enough to have fair procedures: they must be applied fairly
by Martin Malone
In Buchanan v Commissioner of Police of the Metropolis the Employment Appeal Tribunal considered the case of a serving police officer who was disabled as the result of a serious motor bike accident while on duty (the bike's brakes failed). The accident happened in late 2012 when he was responding to an emergency call. Following the accident he was diagnosed with serious PTSD and did not return to work. By April 2013 he was recognised as a disabled person within the meaning of the Equality Act 2010. By May 2013 the employer knew or could reasonably have been expected to know that he was disabled and during that month he was placed on the employer's rather unfortunately named "Unsatisfactory Performance Procedure" (UPP).

The Procedure is derived from provisions in the Police (Performance) Regulations 2012. The Regulations define unsatisfactory performance as "an inability or failure of a police officer to perform the duties of the role or rank he is undertaking to a satisfactory standard or level". The Procedure has three stages. Under the first, a line manager may require an officer to attend a stage one meeting to discuss performance or attendance. Following such a meeting an improvement notice may be issued. Alternatively the meeting may be adjourned or postponed so that the process does not have to proceed to the next stage.

The second stage is invoked if there has not been a sufficient improvement and involves a mandatory meeting. If a notice is issued then it must be a "final improvement notice". The third stage (which was not reached in Mr Buchanan's case) also involves a mandatory meeting, this time before a panel and witnesses may be called.

Sitting in the Employment Appeal Tribunal, His Honour Judge David Richardson noted that the Regulations make no express provisions relating to disability, but the Procedure includes plenty of opportunities for allowances or adjustments for disability to be made (for example by exercising the discretion not to call a first stage meeting). However, although the Procedure could be made to work in the case of a disabled officer, the question of disability would have to be addressed carefully by management in order to comply with the requirements of the Equality Act 2010. Judge Richardson observed that what was really required for an informed decision to be made in respect of disabled employees was medical evidence concerning the prospect of an officer returning to work and, if so, in what capacity, as well as opportunities for consultation with the officer about available options.

In Mr Buchanan's case he was told on 21 August that he had to return to work on 9 September or face "UPP and all that it entails".


Taking recruitment a step too far!
by Katharine Kelly
Recruitment firm 'Matching Models' has recently come under fire for posting a job advertisement requesting that applicants are 'attractive women' only and have even specified what bra size the successful applicant should be.

The advertisement in question specified that applicants for a PA position should have "a classic look, brown long hair with b-c cup". It went on to state that the job would be based in the countryside and that "a lady with no commitments would seem to match our client expectations". The Equality and Human Rights Commission (EHRC) called the advertisement "appalling, unlawful and demeaning to women". Women's rights campaigners have also criticised the firm with Sam Smeathers (Chief Executive of the Fawcett Society) stating:
It is extraordinary that they are taking this approach and almost certainly falls foul of equality legislation. If we ever wonder why the battle for gender equality hasn't been won, this is a timely reminder.
Matching Models is also recruiting a "sexy female driver" to drive a Porsche Cayenne two days a week for between £40,000 and £50,000-a-year for a Knightsbridge-based businessman and polo team owner.


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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
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
Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though 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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Martin Malone
Martin Malone
Martin is a Partner in the Firm and 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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