Unfair Dismissal Can Blight Your Lifetime Earnings

Unfair dismissal can blight your career indefinitely but, with the right legal advice, you can be compensated for every penny you lose in earnings. One case that proved the point concerned a finance director who was persecuted for whistleblowing and found herself out of a job in middle age.

The woman blew the whistle on the chief executive officer of the company for which she worked in respect of a share deal. She ultimately resigned, but her complaint that her constructive dismissal was automatically unfair, within the meaning of the Employment Rights Act 1996, was upheld by an Employment Tribunal (ET).

The ET ruled, however, that a two-year cut off should apply to her future loss of earnings claim. That was on the basis of medical evidence that she would by then have achieved optimum recovery from the trauma of her dismissal.

In upholding her challenge to that decision, the Employment Appeal Tribunal (EAT) noted that the woman was in her fifties and was unlikely ever again to achieve such a senior position, nor such a high level of remuneration. Her recovery was not expected to be complete even after two years of rehabilitation.

The work that she was likely to find in the future was at best that of a financial controller. In the circumstances, the EAT found that her loss of earnings arising from her dismissal would continue throughout her working life. The case was sent back to the same ET for the value of her claim to be reassessed upwards.

Sacked Maritime Armed Guard Has Compensation Hopes Boosted

When losing parties read an Employment Tribunal (ET) decision, fairness demands that it should be clear to them exactly why they have failed. In one case where that did not happen, a maritime armed guard who was sacked after failing to get on with a client won a fresh chance to prove that his dismissal was unfair.

The Ex-Royal Marine was employed to provide armed security services on board vessels at risk of piracy. After he attended an induction day with a new client, the latter stated that it did not wish to work with him. The company that employed him assured him that it would investigate the matter further, but did not do so before his fixed-term contract expired.

He complained to an ET that he had not received the benefit of a disciplinary hearing at which he would have had the opportunity to explain himself, and his employer had failed to seek out alternative employment for him. The ET, however, found that his dismissal was fair in that it fell within the range of reasonable responses open to the company, and accepted the employer’s arguments that it was not its practice to see if there was alternative work in other sections of the company and that the market was contracting.

In ruling on the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET had reached a permissible conclusion that, in a contracting market, there was no evidence that alternative vacancies existed at the time within the company or its associated businesses.

However, in upholding his appeal, the EAT noted that the company had specifically told him that it would investigate his falling out with the client further. There was, in the circumstances, no sufficient basis for the ET’s assumption that the company had actively decided not to proceed with that investigation in the belief that it would not have altered the outcome, rather than simply allowing the matter to drift. The ET’s decision was therefore unsafe and the case was sent back to a freshly constituted ET for reconsideration.

Think-tank Report Says UK Agency Workers Are Exploited

Christmas 2016 will see an estimated 340,000 UK workers employed for temporary work via agency contracts which provide only minimal legal protection against unfair treatment in the workplace.

This revelation is part of the research from a new think-tank report conducted by the UK Resolution Foundation that reveals details of its eighteen-month investigation into how British agency workers are treated. Findings of the report show that many agency-contracted workers are shockingly underpaid compared to their non-agency colleagues despite performing the same duties.

The report entitled Secret Agents: agency workers in the new world of work intends to create awareness of the discriminatory nature of non-agency work in a manner similar to how other recent reports have brought attention to issues that negatively affect workers who are employed via zero-hours contracts. There is considerable overlap between the two work forms, as14% of agency workers are also employed via zero-hour contractual agreements.

The Resolution Foundation’s senior policy analyst, Lindsay Judge, has noted how addressing agency issues is often neglected: “While zero-hours contracts are often in the news, agency workers are the ‘forgotten face’ of the modern workforce, despite being just as prevalent across the labour market.”

Agency workers now account for a very significant volume of the UK workforce. In London nearly 20% of the city’s workforce are on non-agency contracts, and many of these workers lack the employment rights non-agency staff are accustomed to, such as sick payments and parental leave.

The report also reveals that workers employed via agencies are from a much broader range of age groups than the 18-30 bracket that agencies are often believed to employ.

Lindsay Judge feels “it is important that the discussion of the non-traditional parts of work in modern Britain consider the relatively lower pay that agency workers receive compared to identical employees in similar jobs.”

This view is supported by Frances O’Grady, the general secretary of TUC, who states that “agency workers are often paid less than their permanent colleagues, even when they do exactly the same job […] We need the government to toughen the law to create a level playing field for agency workers.”

The report also highlights how agency contracts are often used for long-term rather than short employment, contrary to past reports of how such contracts are usually temporary and short-term.

The Resolution Foundation has spoken ahead of the report’s publication, claiming the organization is not biased towards the nature of agency work, and fully recognises how there is often a need for such contracts as workers often search for flexible employment to support their lifestyle arrangements.

However, the report does draw attention to the fact that a considerable number of workers on agency contracts are not choosing to work this way, and that 60% of workers would rather be fully employed if given the choice.

In 2011 approximately 200,000 UK workers were on agency contracts that existed across a range of industries, from office temps to hospital nurses. This figure has more than quadrupled to around 865,000 since then. The Resolution Foundation’s report estimates this number will increase to more than a million by 2020.

The largest sector for agency employment is the health and social care sector, which has a staggering 18% of the UK’s agency staff.

The report shows that despite more men being employed via agency work (54%), women account for 85% of the workers employed during the recorded increase that has occurred in the UK over the past five years,

An imbalance in the number of ethnic workers on agency contracts is also evident in the report’s findings, as 20% of agency workers are non-white despite accounting for only 2.7% of the workforce.

There has been a surge in agency related case coming to tribunal in recent months, including high profile grievances involving household names like Deliveroo, Uber and Sports Direct. These cases all involved grievances relating to the unfair treatment of staff.

One area of concern regarding agency contracts is the legal loophole often referred to as the ‘Swedish derogation’. This allows employers to pay temp workers less than their fully-employed peers as long as the agency is paying them continuously for a period of at least four weeks during times when the business is unable to find work for those workers.

Dorchester Hotel Criticised Over New Grooming Rules for Female Staff

The Dorchester is certainly one of the most luxurious hotels in the UK, but no business should be powerful enough to dictate how female staff groom their bodies as the renowned hotel intends to do.

A list of the rules the business expects its female staff to abide by has caused a considerable backlash due to the excessive demand they involved. The content of the new regulations was leaked by staff of The Dorchester after they received an email from the hotel’s managers outlining the changes.

The five-star hotel claims the changes are justifiable as they are was researched in relation to recent customer complaints over the hygiene of staff members, but the nature of the demands is deeply unfair; with content including how women are not to report for work if they have ‘oily skin’, ‘bad breath’ or ‘garish makeup’. There are also suggestions that women manicure their fingernails, shave their legs and wear formal dresses.

A dress code policy is necessary for a business to ensure its desired image is projected, however, the extent of the detail requested by the Dorchester shows an objectification of female workers which could be considered discriminatory as it dictates a notion of what femininity is rather than it being an individual’s personal expression.

The dress codes involved can also be considered impractical for performing certain tasks, such as preventing a waitress’s ability to move comfortably while working.

There is also concern that other rules in the list such as removal of hair could encroach on religious freedom of expression which workers are entitled to. The rights of workers against discrimination is protected under the 2010 Equality Act, which supports employee ‘protected characteristics’, including age, sexuality, religion, gender and disability.

A requirement like a manicure is also an unfair obligation as the financial expense of the beauty products involved is not supported by The Dorchester. Any rule involving the use of beauty products should at least be provided to employees; especially as workers in the hospitality industry often struggle financially.

Furthermore, workers from certain ethnic background may find that following The Dorchester’s rules an issue due to their natural skin and hair types being unsuitable for the desired modifications. The rules appear to require female workers to conform to a westernised expectation of femininity.

The Dorchester’s grooming rules has already been criticised by several organisations. Chief executive of the Fawcett Society, Sam Smethers, believes ‘employers should concentrate on what enables people to do a good job and what drives productivity’ rather than their looks.

In an anonymous interview with the Daily Mail, a Dorchester worker stated the treatment of she and her colleagues is ‘like something out of the dark ages and downright offensive. It’s not as though you choose to have oily skin, and a lot of women, especially teenagers, cannot help it […] The women are all pretty livid but worry that if they complain or rebel they’ll be sacked on the spot.”

It also cannot be overlooked that the new rules are focused on female employees rather than male. Any new dress code or grooming policy should certainly apply to male employees where an equivalent can be made possible. However, no new rules have been suggested for men.

Roland Fasel, the Dorchester’s general manager, has spoken in defence of the new rules as an effort to ‘uphold world-leading hospitality standards, including grooming, in line with many other brands.’

Employee Claims Sex & Race Discrimination for Not Bowing to Her Employer

The globally renowned Korean business Dongbu Daewoo Electronics has been taken to tribunal by a female employee who claims she was subjected to acts of sex and race discrimination.

Mrs Misook McDonald, who is representing herself at tribunal, was allegedly demoted from her job as a financial manager because she did not bow to her boss Mr Ho Seung Yoo, who is employed as chief financial officer.

Mrs McDonald claims she was called into the director’s office at the Berkshire branch of the electronics giant to be reprimanded by Mr Yoo for her ‘disrespect’ at not bowing to him at the beginning and end of each day. She was later demoted from her position as financial manager.

Mrs McDonald also claims that on another occasion she was told to prepare coffee for a number of guests despite this task not being part of her daily duties. When she refused Mr Yoo allegedly responded with the discriminatory question “Isn’t that what female workers should do?”

Both Mr Yoo and Dongbu Daewoo Electronics deny all allegations.

A case of this kind is of particular interest as there are elements of cultural contrast involved, specifically in regard to British and Korean attitudes. In the latter country bowing is generally considered an act of respect comparable to a handshake or verbal greeting, but such a gesture is not familiar to the British workplace.

Although Dongbu Daewoo Electronics is a Korean business, a form of greeting synonymous with the culture of that nation does is not required to translate to its offices in another nation, especially if the employees are not citizens of that nation. Mrs McDonald is of mixed race, with a Scottish father and Korean mother.

The tribunal heard that she was made to feel an outcast at the Berkshire offices and did not receive a warning prior to being demoted to position of administrator. Mrs McDonald stated at tribunal that she believes her employers felt they could behave this way because she is an Asian female:

“I know if I had been an older British white Caucasian male, Mr Yoo would have seen me very differently and would not dare to push me around so easily […] “I expressed that I felt discriminated just because I am viewed as a Korean female and younger, hence lower in status that I can be looked down upon and pushed aside”.

Her allegations of race discrimination are rooted in her assertion that she was demoted so another employee could take her place. She originally received a lot of praise from her employers as she was the only bilingual employee in the office; speaking both English and Korean. This changed when a Korean national with stronger language abilities was employed and she was given the lower admin role.

“I know he was glad to utilise me when I was the only bi-lingual person but when a better speaking Korean employee came along, I was not his preferred choice. I am also not considered ‘pure’ as my father is English.”

Mrs McDonald claims she did not bow to Mr Yoo because she wanted to avoid him and thus stop further harassment. The alleged discrimination eventually led Mrs McDonald to take leave from work due to stress.

She informed her managing director Mr Chong Park about what had happened, but a private investigation into the the matter did not find grounds to support her grievance. The mediator employed for the investigation stated there was “no reason to favour one account over another” since Mr Yoo denies all the allegations, claiming he was taken by surprise at the claims: “Mrs McDonald never complained about being called into my office whilst at work until she lodged her grievance.”

Mr Yoo also rejects any responsibility for sexist or racist behaviour. In regards to Mrs McDonald’s claim of discrimination for refusing to bow he said the following:

“Bowing is considered a custom in Korea but nobody in our UK office is required to bow. Some of our Korean staff choose to bow but as I say nobody must bow, it is entirely voluntary.”

Speaking at tribunal the company’s Managing Director, Mr Park, also denied that employees were expected to bow to their manager. However, he did claim that he initially had some concern at Mr Yoo’s conduct when the chief financial officer first came from South Korea to Berkshire to begin a four-year contract in 2015, stating that he wondered “is he normal or is he mental?” Such a reaction from Mr Park suggests there was either a degree of culture clash occurring, or that Mr Yoo’s conduct in the workplace has been at least been unconventional at times.

 

As branch director, Mr Park confirmed his support for Mr Yoo’s decision to implement a change of role for Mrs McDonald, claiming the alteration was largely in job title only and was due to a need to prevent redundancy across the office: “Mr Yoo designed the presentation which included the job chart to show the CEO and HQ that we had met their request. Nobody’s job role actually changed at that stage.”

Mr Yoo denies that Mrs McDonald was regularly given duties beneath her position, and says that his request for coffee was due to her past actions suggesting she would not object to it:

“When initially Mrs McDonald joined our company, every morning she brought me a cup of coffee or tea, every single morning. […] It was quite strange to me […] however, I just accepted it”.

He claims her generous attitude convinced him she would be comfortable performing a similar action for others and that he reluctantly requested this: “I asked her to make some coffee for my guests, I was really sorry for asking that of her at the time.”

The tribunal continues.