Regional Discrimination

I want to introduce two situations, a senior manager in London castigates two employees in the following terms, the abuse is the last of a long line of verbal abuse along the same lines:

  • “Pull your finger out and work harder you lazy Geordie piece of shit”
  • “Pull your finger out and work harder you lazy Scottish piece of shit”.

Faced with a situation in which a manager has been abusing a member of their staff for reasons related to their geographical background an employee will frequently want to pursue a complaint of bullying against the manager. But, as many an employee representative will recount even in clear cases of bullying it is not unknown for an employer to refuse to take the employee’s complaints seriously – or even, in some cases, to target the complainant with disciplinary action for raising a complaint.

The aggrieved worker will, naturally enough, want to seek advice as to whether he or she has a legal claim against the abuser and/or the employer. It is true that outside of an Employment Tribunal the workers may both have a claim that the conduct was unlawful under the Protection from Harassment Act 1997. A not entirely dissimilar claim can be seen in the House of Lords case Majrowski v. Guy’s and St. Thomas’ NHS Trust where an employer was found liable for the sustained bullying behaviour of a manager.

The reality though, especially for relatively low value claim such as this one, is that the worker is priced out of pursuing such claims.

A more expeditious and cost effective route would be to pursue a case under the harassment provisions of the Equality Act 2010. The Equality Act defines harassment as:

A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B’s dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The key difference between this definition of harassment and that in the Protection from Harassment Act is that the unwanted conduct must be “related to a relevant protected characteristic” which means that it is related to age, disability, gender reassignment, marriage or civil partnership, race, religion or belief, sex or sexual orientation.

Since the definition of the protected characteristic of race includes nationality/national origins the act allows claims related to race where an applicant is English or Scottish (BBC Scotland v Souster [2001]).  For the Scottish worker therefore the aggrieved worker does have the opportunity to pursue a claim that the boss is racially harassing the worker. For the worker born and raised in Tyneside however even though the discriminatory and oppressive bullying is just as intense and damaging they will have no recourse in the Employment Tribunal whatsoever.

Given there is evidence that workers who are tied to particular regions of the  constituent nations of the UK are disadvantaged because of their regional identification this highlights a major gap in the UK’s anti-discrimination laws. It is all very well for the former Employment Minister Esther McVey to encourage job applicants not to hide their regional accents but if there is no meaningful legal redress to challenge this discrimination then it is hard take such encouragement seriously because, if they do, there is clear evidence that workers will be disadvantaged.


Cases referenced:

Majrowski v. Guy’s and St. Thomas’ NHS Trust [2006] UKHL 34

BBC Scotland v Souster [2001] IRLR 150

Sickness Absence while on Holiday

Does an employee who is on long term sick leave need to show that there was a reason that they did not take annual leave during the period they were off a long period of sick leave?

This is one of the questions that was raised in Plumb v Duncan Print Group Ltd last month. The short answer is no. Given previous decisions in cases like Stringer and Larner this is not a surprise.

While as a rep I have frequently been asked by members to advise employees on whether they have the right to their unpaid leave being paid upon dismissal the specific circumstances raised in this case are rare (because not many employees are on sick leave for years on end!). Still, while not necessarily a helpful case this is a good case to clarify the status of the untaken holiday of those who are on long term sickness absence.

The claimant in this case was was a longstanding employee of the Respondent. In April 2010 he suffered an injury at work and was from that point onwards off sick until his dismissal in February 2014. The claimant was therefore off sick for a continuous period of just under four years and, during that time he did not take any leave annual leave.

When he was dismissed the claimant asked that  outstanding annual leave from the Respondent for the annual leave years in which he had not taken any leave be paid to him.

Give a Reason?

(Mis)Applying Larner the first tier tribunal found that there was no evidence that the claimant had been ‘unable’ to take annual leave in the relevant years and, therefore the ability to carryover leave that Larner had allowed did not apply.

On appeal, Justice Lewis found following the rationale of the ECJ in C-44/08 Pereda v Madrid Movilidad SA [2009] ECR I-8405 that since the purpose of annual leave for relaxation and leisure and sickness leave is recovery the two are normally incompatible. For that reason reference to inability should be read with that in mind. Therefore the first tier tribunal was in error to conclude that the claimant on sick leave must give a reason for not being able to take annual leave: being on sick leave is reason enough.

It’s a Rollover …

The normal situation is that unless there is a contractual clause to that effect an employee could not carry over leave from one year to the next; in other words, they had to use it or lose it. Larner had however established that a claimant could in certain circumstances ‘carry over’ annual leave if they are unable to take it because of sickness absence to the subsequent year. Separate caselaw (KHS AG v Schulte) had established that the right to carry over leave, even when a claimant had been unable to take annual leave, was not indefinite and that a cut off of 15 months was (in the circumstances of that case) reasonable. The second issue before the EAT in Plumb therefore was whether the right to carry over leave extended to 40+ months (just under four years). Unsurpringly, given the finding in KHS AG it found it did not. Interpreting the UK WTR Regulations in line with the EU legislation and caselaw the EAT found that, at a maximum, the time limit was 18 months. Therefore, any unclaimed holiday over 18 months was could not be enforced.

Practical Impact

The case itself does not strike me as especially important save for the explicit clarification that no reason for not taking annual leave needs to be given when a worker is absent on sick leave.

However, the case prompt three pieces of advice for reps when faced with assisting members on long term sick leave:

  • If a member is dismissed following long term sickness absence then ensure there is clarity at an early stage of the leave they were eligible for which they did not take in the preceding 18 month’s. If this leave is not paid on dismissal the member may have a claim for unauthorised deduction of wages.
  • Likewise, if an employee has been on long term sick but then returns to work ensure that their  leave on return is correct. In my experience payroll/HR are more likely to make mistakes here than when dismissing a worker because they may not have holiday pay in mind as much. Again, if not correct the worker may have a claim for unauthorised deduction of wages.
  • Less likely to be relevant but important when there is an absence of over 12 months and no sign of a dismissal on the horizon I think members should be encouraged to take annual leave in excess of the yearly leave they are entitled to whilst they are still sick. If they do not then they will be at real risk of losing this leave entirely. Although it will not interrupt the long term sickness it will still be beneficial to the member as the leave will be at the full rate of pay (rather than sick pay which by this stage is likely to be much less) and will, also, not contribute to Sick pay arrangements.


Cases cited:

Plumb v Duncan Print Group Ltd [2015] UKEAT 0071_15_0807

C-44/08 Pereda v Madrid Movilidad SA [2009] ECR I-8405

KHS AG v. Schulte (Case C 214/10) [2012] IRLR 156

To Appeal or not to Appeal

When an employee is dismissed they face a decision whether they should appeal against their dismissal using internal appeal mechanisms or apply directly to an Employment Tribunal.

Naturally, when an employee has been dismissed and the employee feels that decision is wrong they will frequently want to exercise their right to appeal against that decision. That is understandable since the appeal is probably the last time the employee will have the chance of getting their job back, however slight that likelihood is.  Indeed, the ACAS Code of Practice (paragraph 26) recommends that employees should appeal: “Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision.”

The difficulty for employees however is that an appeal could harm a subsequent claim for unfair dismissal. The EAT in Adivihalli v Export Credits Guarantee Department made clear that a properly conducted employer’s appeal can correct errors in the preceding disciplinary hearing:

Where an Industrial Tribunal is considering a complaint of unfair dismissal and where an employee under his contract of employment has the right to appeal and exercises that right, in considering whether the employee has been fairly or unfairly dismissed, the Industrial Tribunal should have regard to the overall process of the termination of the contract of employment, or, in other words, the dismissal.

In some circumstances unfairness at the original dismissal stage may be corrected or cured as a result of what happens at the appellate process: that will depend on all the circumstances of the case. It will depend upon the nature of the unfairness at the first stage; the nature of the hearing of the appeal at the second stage; and the equity and substantial merits of the case. Whether or not an appeal cures a procedural defect is not a matter to be determined by reference to the precise category into which appeal process falls.

In short if an employees receives a decision to dismiss but there were significant errors (especially procedural errors) by the employer in how they came to that decision then the employee is faced with a difficult decision. Do they appeal the decision knowing that reinstatement is very unlikely but that the appeal could ‘remedy’ the errors in the earlier process and mean a successful legal challenge is much less likely or do they bypass an appeal (and risk a reduction for noncompliance with the ACAS Code notwithstanding potential Polkey adjustments) and pursue straight to an Employment Tribunal?

The recent case in Adeshina v St George’s University Hospitals NHS Foundation Trust highlights this dilemma. The claimant was accused of gross misconduct and, after a lengthy delay in the disciplinary process was dismissed. The claimant appealed that dismissal but the appeal procedure upheld the decision to dismiss. She then subsequently lodged an Employment Tribunal claim for unfair dismissal (along with other claims).

At the ET hearing and in the ET judgement the Respondent came in for significant criticism. It found that:

  • the decision maker had relied on information and evidence that had not been put to the claimant. The result of this was it found the decision maker could not “have held a reasonable belief in the Claimant’s misconduct” which is necessary for a fair dismissal
  • The decision maker did not make a reasoned finding for all aspects of the allegations against the complainant but nevertheless found those complaints proven without reasonable grounds for doing so.
  • In the dismissal the Respondent also relied on “other factors” which had not been put to the claimant.

The result was that there is no doubt that on the basis of the process the Respondent applied the claimant had been unfairly dismissed and, had the claimant not appealed the dismissal but instead lodged an Employment Tribunal claim her claim would have been successful with the possibility of a compensation award and even (albeit very unlikely) an order for reinstatement.

As it is however the claimant did appeal and the ET found that “the appeal process was fair and had the effect of curing the deficiencies at the dismissal stage.  Taken overall, the Claimant’s dismissal was fair.” The result therefore is that what would have been a successful ET claim was transformed (by seeking to resolve the matter through internal disciplinary procedures) into a losing case.

The case does raise the question as to whether it is always best for a dismissed employee to actually appeal a dismissal – normally this will be appropriate but in some cases it may not be in an employee’s interest to do so. Or to put it another way, sometimes you’re damned if you do, damned if you don’t.

Cases Referenced

Adeshina v St George’s University Hospitals NHS Foundation Trust [2015] UKEAT 0293_14_0105

Adivihalli v Export Credits Guarantee Department [1998] UKEAT 917_97_2703

Volunteering Leave RIP?

When an employee is dismissed they face a decision whether they should appeal against their dismissal using internal appeal mechanisms or apply directly to an Employment Tribunal.

Back in April 2015, whilst in full electioneering mode, the Conservative Party made a commitment that if elected they would introduce a right for all public sector and all employees of companies employing at least 250 employees to have three days paid leave to complete volunteering.

Interestingly, despite not being an especially thought out proposal the Conservatives were explicit that any union member who wanted to volunteer to their trade union, the biggest membership organisations in the UK, would be expressly excluded from this right to paid leave.

This was not just a vague aspiration but was given a central place in the Conservative’s manifesto (see page 45). Keen observers, like HR Bullet’s Craig Gordon, noticed that fresh from the election there was a silence about the commitment in the Queen’s Speech which is arguably inconsistent with a firm commitment to deliver this new right.

The Financial Times has also picked up on the complete absence of any intent within the Tory party to deliver on its commitment in the first legislative session of Parliament. The FT report last month indicated that its sources indicate that within two months of trumpeting the idea the government had already performed its first U-turn and dropped it:

You are right in thinking they are going to forget about that one,” said the government figure. “It has not been mentioned [since the election] and there are no plans in the pipeline for a consultation.

Of course, the explicit exclusion of any trade union activities (which could include helping learners develop new skills, helping navigate the benefit system, running a credit union etc) was a cynical ploy. Nevertheless, any moves to encourage voluntary action is still surely a social good so we should regret the hasty way the project appears to have been dropped after voters have placed their votes – I would hope that the political cynicism of the trade union exclusion does not mean trade unions themselves do not continue to lobby the government to make good on its commitment to the public.

Adivihalli v Export Credits Guarantee Department [1998] UKEAT 917_97_2703