Extended Criminal Record Certificates – A Balance Must Be Struck

Those who work with children or vulnerable adults are required to have extended criminal record certificates (ECRCs) so that prospective employers can judge whether they are fit to perform such sensitive roles. However, as one Court of Appeal case showed, a careful balance has to be struck between disclosure of information and the serious blight that might cause to an individual’s career.

The case concerned a teacher who vehemently denied claims that he had made sexually inappropriate comments to students, aged between 17 and 24, during a college trip abroad. His local police force decided, however, that it was necessary to include those allegations on his ECRC. That made it very unlikely that he would be able to find employment in his chosen field, but his judicial review challenge to the decision was dismissed by the High Court.

In upholding his appeal against that ruling, the Court of Appeal found that the police decision was unbalanced and disproportionate. The man’s ECRC made no mention of the fact that the Independent Safeguarding Authority had approved him as fit to continue teaching children. It was clear that the police had failed to take account of a relevant factor when reaching the decision. The ECRC was quashed.

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The Firm’s Annual Christmas Party

The annual Christmas party gives employers the opportunity to thank members of staff for their contribution over the past year and is a chance for everyone to relax and enjoy the holiday season. However, it is easy to forget that an employer owes its employees certain obligations, even outside work, when the event has been organised by the employer, and that employees’ conduct during it should comply with normal standards and should not breach workplace equal treatment and anti-harassment policies. An employer may be held vicariously liable for the actions of employees at such functions as they are likely to be considered as having occurred ‘in the course of employment’.

In order to prevent what should be a happy occasion from leading to recriminations or worse, an employer should take certain basic steps. Here are some of the more important ones:

  • When planning any work event, thought should be given to whether it will coincide with the dates of religious festivals;
  • Carry out a risk assessment – this should include the venue and, in particular, the possible risks associated with serving alcohol. Making sure employees can get home safely is important, so consider hiring transport or providing taxis if necessary. Ensure soft drinks are provided as an alternative to alcoholic drinks and that individual dietary requirements are catered for;
  • Ensure that, if employees’ partners are invited, there is no discrimination with regard to who is included. Ensure also that reasonable adjustments are made to allow any disabled employee or partner to attend and that any employees absent on maternity leave or because of long-term sickness are included;
  • Where possible, make sure that the arrangements accommodate the requirements of employees of different religions;
  • Ensure that employees understand the difference between ‘banter’ and behaviour that could be considered to infringe the dignity of any person present…and if such behaviour occurs, act quickly to prevent a reoccurrence. Take prompt action if a complaint is received;
  • Make sure that employees who are expected to attend work the day after the function understand that absence through over-indulgence is likely to be regarded as a disciplinary rather than a medical matter; and
  • Make sure employees are aware that any illegal acts will not be tolerated.

The biggest problems that are likely to arise are that inappropriate behaviour may occur, especially if alcohol flows too freely, and that there may be conduct which members of a particular religious persuasion find objectionable.

Your firm’s contract of employment will probably deal with most or all of these issues. However, it is sensible to have a separate policy on what is expected of employees at workplace social events and to remind employees of its contents in advance of any function.

In one vicarious liability case, a claim was brought by an employee who was punched in the face by a colleague and suffered serious brain injury some time after a group of employees had left the firm’s Christmas party and adjourned to a nearby hotel. The High Court ruled that the employer could not be held liable for serious injuries inflicted by one member of staff on another some hours after the planned Christmas event had finished. This makes clear the wisdom of organising an event with an obvious finishing time, such as a meal at a restaurant, so that those who wish to continue to celebrate afterwards do so at a venue of their choice.

If you need any help contact us today on 020 8263 6080 or click here for a free initial consultation.

Discrimination – Identifying the Right Comparator Can be Problematic

The usual way of detecting discrimination is to conduct a comparison between the treatment of complainants and colleagues in a similar position. However, as one Employment Appeal Tribunal (EAT) decision illustrated, identifying an appropriate comparator is frequently problematic.

The case concerned a doctor who claimed that her employer’s two-thirds final salary pension scheme unlawfully discriminated against those who had worked both full time and part time during their careers. She had retired after working for 27 years for the same employer and was awarded about 78 per cent of a full pension. That was on the basis that, when periods of part-time work were taken into account, she had completed the equivalent of 21 years’ full-time service.

In complaining to an Employment Tribunal (ET), she argued that a full-time worker who had worked for 20 years or more would have qualified for a full pension. It was submitted that the scheme was infected by double pro-rating in the case of those with some part-time service and that she had been put at a particular disadvantage.

Her claim was, however, dismissed on the basis that making use of her suggested full-time comparator would have failed to take account of a critical feature of the scheme – that benefit accrual rates under it depended on the employee’s age on joining the employer and the years remaining until normal pension age.

In rejecting her challenge to that decision, the EAT could detect no error of law in the ET’s decision on the comparator issue. It was unfortunate that the ET had cut and pasted the majority of its decision, on an almost word-for-word basis, from the employer’s written arguments. However, its reasoning was sufficient to enable her to understand its conclusion that she was not being paid less by way of pension entitlement than a comparable full-time worker.

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Restaurant Owner Pays with His Liberty for Peanut Allergy Sufferer’s Death

Disregarding health and safety rules can put your liberty, as well as the welfare of your staff and customers, in jeopardy. The owner of a restaurant that served a peanut allergy sufferer with a fatal dish found that out to his cost.

The customer had an allergy so severe that it could be triggered by mere proximity to peanuts. He took no chances and, before ordering a takeaway curry from the restaurant, sought and received confirmation that the dish contained no nuts. After eating it, however, he went into severe anaphylactic shock and died.

It later emerged that the restaurant was in serious financial difficulties and that cheap ingredients, which included peanuts, had been used in preparing the dish. Staff had been warned by a trading standards officer just a week before the fatal incident that customers must be told that their meals contained nuts. The owner was subsequently prosecuted and jailed for six years after being found guilty of manslaughter and six breaches of food safety standards.

The facts of the case emerged as the Court of Appeal found that the evidence against the owner was overwhelming and rejected his challenge to the manslaughter conviction. Despite his previous good character, the Court was also wholly unpersuaded that his jail term was excessive. The customer had died due to gross negligence, driven by money, that had persisted for months.

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Restrictive Covenant in Engineer’s Contract Passes Reasonableness Test

Restrictive covenants in employment contracts involve the imposition of restraints on employees’ personal freedom and have to be reasonable to be enforceable. In one case, the High Court ruled that a clause in an engineer’s contract that prevented him from working for competitors for 12 months passed that test.

The engineer worked for a company that specialised in making high-tech consumer goods and was obsessed by maintaining the confidentiality of its research. He was put to work on a secret project to develop a new electric car shortly after he had received a conditional offer of employment from an electric car manufacturer. He did not inform his employer of that development.

His employment contract contained a restrictive covenant that, amongst other things, forbade him from working for any company that operated in a similar field to his employer for a 12-month period after leaving his job. After the car manufacturer’s offer was made final and the engineer announced his resignation, his employer launched proceedings to hold him to the terms of the covenant.

He argued that the covenant, which had a worldwide reach, was void in that it placed excessive restraints on his freedom to make a living. However, the Court found that the restrictions were no wider than was reasonably necessary to protect the employer’s commercial interest in preserving its trade secrets.

The Court acknowledged that the engineer and the car manufacturer had acted in good faith and that there was no reason to suspect that the engineer intended to divulge his employer’s confidential information to the car manufacturer. However, the purpose of the covenant was not merely to restrain deliberate disclosure of confidential information and there was a real risk of innocent breach.

Whilst expressing sympathy for the engineer, the Court noted that he was largely the author of his own misfortune in unwisely failing to tell his employer of the conditional offer he had received before embarking on the secret project. The Court issued an injunction restraining him from taking up his new post for 12 months from the date on which he left his job.

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Near-Fatal Industrial Accident Triggers Health and Safety Appeal

Many people do dangerous jobs, but employers are required by law to do all in their power to minimise risks, and the consequences of failing to do so can be severe. In one case, an equipment maintenance company was served with an improvement notice under the Health and Safety at Work etc. Act 1974 after a near-fatal accident.

A worker suffered catastrophic injuries when he fell through the floor of the cab of a straddle carrier that was used to shift lorry containers and fell 14 metres to the ground. A panel had been removed from the floor during maintenance work and, although a sign had been put in place indicating that the straddle carrier was not in use, it did not prevent access and was inadequate and misleading.

Following an investigation by a health and safety officer, the man’s employer was served with the notice, which required various systemic and physical improvements to be made that were designed to eliminate the risk of a recurrence. The employer appealed against the notice to an Employment Tribunal (ET).

The employer’s staff worked in the same yard as others who were employed by another company and it was asserted that the latter was to blame for the creation of the hazard. The employer argued that it did have a system in place that would have prevented the accident victim from gaining access to the cab.

In dismissing the appeal, however, the ET noted that both companies’ employees had worked together in close proximity and the baton of responsibility for various tasks had been passed between them on an ad hoc basis. That had led to confusion and increased risk on the site and the employer’s assertion that it was not at fault was not supported by evidence. The officer had reasonably formed the view that the employer had contravened one or more health and safety rules and that such contravention was likely to continue or be repeated.

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The Employment Tribunal Fees Refund Scheme

Following a four-week pilot scheme, the Employment Tribunal Fees Refund Scheme is now open to anyone who paid fees in respect of an Employment Tribunal or Employment Appeal Tribunal claim after their introduction in July 2013.

Those eligible can apply online here.

Alternatively, the following forms are available to apply for a refund by post or email:

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Equality Rights – EU Law Takes Priority over UK Legislation

In a ground-breaking decision that underlined the primacy of European law, the Supreme Court has opened the way for a police officer to appeal against her dismissal to an Employment Tribunal (ET) on disability discrimination grounds.

PoliceThe officer had suffered post-traumatic stress disorder after being assaulted whilst on duty. She was subsequently involved in an incident that led to her arrest and asserted that her behaviour on that occasion was related to her condition. However, following a disciplinary hearing before a Police Misconduct Panel (PMP), she was dismissed without notice.

She sought to appeal against her dismissal to an ET on the basis that the decision to sack her constituted disability discrimination and disability-related harassment. However, in a decision that was later upheld by the Employment Appeal Tribunal and the Court of Appeal, the ET struck out her claim on the basis that the PMP was a judicial body and that her claim was barred by the principle of judicial immunity.

In unanimously allowing her appeal, however, the Supreme Court noted that EU Council Directive 2000/78/EC confers on everyone, including police officers, a directly effective right to be treated equally in relation to employment and working conditions, including dismissals. The Directive took priority over domestic law and the UK was obliged to ensure that appropriate judicial and/or administrative procedures are available by which such rights can be enforced by effective, proportionate and dissuasive sanctions.

Allowing police officers to bring such claims before an ET would give them access to a wider range of remedies, including compensation, and the concept of judicial immunity should not be treated as a bar on complaints to ETs brought by police officers who claimed that they had been treated contrary to the Directive.

Reading additional words into Section 42(1) of the Equality Act 2010, so as to enable the officer to pursue her claim, was in line with the grain of the legislation and was warranted by the principle that domestic legislation should be interpreted in conformity with EU law. The officer’s case was remitted to the ET for full consideration of her complaints.

 

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‘Worker’ Status of Uber Drivers Confirmed in Landmark Case

In a ground-breaking ruling, the Employment Appeal Tribunal (EAT) has confirmed that drivers for online cab giants Uber are ‘workers’, as defined by the Employment Rights Act 1996, and are thus entitled to a panoply of rights and benefits.taxis

In upholding complaints by a number of Uber drivers who plied their trade in London, an Employment Tribunal (ET) had found that, whenever they had the company’s app switched on and were willing to accept assignments, they qualified as workers and were, amongst other things, entitled to the protection of the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

In challenging that ruling, Uber pointed out that the drivers had no written contract with the American parent company’s London-based subsidiary. Whilst they did sign written agreements with the parent company, their terms were inconsistent with the existence of any worker relationship. It was submitted that the agreements made clear that the drivers provided transportation services to those who hailed them and that Uber provided services to the drivers as their agents. The drivers were carrying on business on their own account and were not required to work for Uber.

In dismissing the appeal, however, the EAT found that the contractual documents did not reflect the true relationship between the drivers and the London subsidiary. The reality was that the drivers formed a central part of Uber’s business in providing transportation services. The level of control to which they were required to submit pointed away from a conclusion that they worked on their own account and that their direct contractual relationship was with their passengers. It could not be said that the London subsidiary merely acted as the drivers’ agent.

The obligations imposed upon the drivers to accept trips offered by Uber, and not to cancel trips once accepted – there being potential penalties for doing so – was another powerful indicator that the relationship was not one of agency. If they had the app switched on, the drivers were required to be willing and able to accept assignments and Uber described them as being ‘on duty’. There was nothing inconsistent or perverse about the ET’s conclusions.

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Christmas and the Workplace

Christmas is a busy time for a lot of businesses, with many taking on temporary staff to cope with the extra workload. At the same time, many employees will want to take time off to spend with their family, go on holiday or attend religious services.

Employers are wise to plan ahead to cope with the varying demands placed on them at this time of year, and to this end the Advisory, Conciliation and Advisory Service has produced a guidance leaflet covering employees’ rights with regard to time off on bank holidays, annual leave and sickness absence over the Christmas period and Christmas parties.

 

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