Jobsworth by Michael ScuttReligion and Belief Discrimination | Jobsworth by Michael Scutt

Barrack Room Lawyers Beware

Michael Scutt — Wed, 12 Oct 2011 17:05:56 +0000

You’ve probably heard some barrack room lawyer saying “they can’t touch me, I’ve put all the assets in my wife’s name” or “they can do what they want, I’m a limited company.” In this case “they” is usually a spouse or a creditor. In the case of Bungay and Paul v Chandel & Ors (UKEAT/0331/10) “they” was actually a Claimant in proceedings before an ET.

Bungay and Paul were directors in the company. They were found by the ET to have conducted a campaign of discriminatory action against Mr Chandel which were intended to get him removed from his post. Even after Mr Chandel’s dismissal, the two directors continued to make unfounded and malicious complaints to the police.

So far, so unremarkable (if rather unpleasant) you might say. Directors are subject to fiduciary duties too. For instance two of those duties include “acting for proper purposes” and ”acting in good faith in the best interests of the company”, both of which may arguably be infringed by this type of conduct. The problem, of course, is that enforcing a fiduciary duty is not usually an option open to an employee.

However, and the really interesting aspect of this case is that by the time the ET got round to considering what remedy to award Mr Chandel, the company had gone into liquidation. This didn’t prevent the ET from holding that Messrs Bungay and Paul should be held “jointly and severally liable” for their actions and awarded compensation to be paid by them both, and also made an award for aggravated damages to reflect the severity of their conduct. Thus rather neatly sidestepping the small problem of the company itself (and being the legal entity with whom the employee had contracted) no longer being in existence.

Inevitably, the case went to the EAT. The issue regarding the directors liability came down to whether they could be held to be “agents” of the company and thus liable despite the fact they were directors of a limited company. Under the now defunct Employment Equality (Religion or Belief) Regulations 2003 reg. 22(2) provided that a Principal will have liability conferred on it for the discriminatory acts of its agents. Reg 23(2)deemed that a person who is held liable for the actions of the Principal will be held to be its agent. In this case the Regs deemed the directors liable. Mr Justice Silber then considered the case law and relied on Lana v Positive Action Training Housing (London) [2001] IRLR 501 which states that the test of authority is whether when doing a discriminatory act the discriminator was exercising authority conferred by the Principal, and not whether the Principal had authorised the agents to discriminate. In other words if the directors did the act whilst running the business thety will be caught.

The EAT looked at the company’s Articles of Association which gave the directors power to run the business and, of course, they had been running the business when they removed Mr Chandel.

That put liability firmly back onto the two directors (and not the other “innocent” directors) and instead of making an award against all, the court held that an award should only be made against those directors (Gilbank v Miles (2006) IRLR 538 ) who had “consciously fostered and encouraged a discriminatory culture” .

Aggravated damages, which are rare at the best of times, were ordered because the campaign of discrimination had continued after termination.

Company directors need to be careful following this decision as it does provide another route for a Claimant to pursue in employment disputes. Acting badly and then hoping to hide behind a limited company might not be a panacea. Although in Bungay the central point of law turned on the drafting of the Employment Equality Regs (now repealed by the Equality Act),the EqA contains similar provisions at ss.109 & 110.

This case is probably going to be of importance only in disputes involving discrimination. “Ordinary” unfair dismissal cases will not be affected as there is no corresponding “deeming” provision. But, with the government due to increase the qualifying period from 1 year to 2 years for unfair dismissal by April 2012 the number of discrimination claims may well increase as disgruntled employees seek creative ways around the time limit.

Thanks to Henderson Chambers for the summary of this case.

Barrack Room Lawyers Beware originally appeared on Jobsworth by Michael Scutt on 12/10/2011.

A Clash of Cultures: Gay Rights vs Religious Belief

Michael Scutt — Mon, 24 Jan 2011 10:00:56 +0000

There was a lot of coverage last week in the media on the outcome of the case of Hall & Preddy v Bull & Bull involving the clash of religious beliefs and gay rights. It wasn’t an employment case but a dispute over discrimination (against a homosexual couple) in service provision, in this case Mr & Mrs Bull, a devout Christian couple who ran a B&B and refused to allow Mr Hall and Mr Preddy to stay in their B&B because it offended their religious beliefs.

It’s a very readable Judgment, particularly the opening paragraphs. For an excellent analysis of the law see Mrs Markleham’s blog here and for a thoughtful counter-argument from Steven Mather see here.

The Judge held it to be an instance of “direct discrimination”, as opposed to “indirect discrimination”, because only married (and thus heterosexual) couples were allowed to take a double room, which disadvantaged Messrs Hall and Preddy because (being gay) they were in a civil partnership. The relevant law is contained in the Equality Act (Sexual Orientation) Regulations 2007. The crucial point is that those Regulations specifically provide that there no distinction is to be made between married couples and those in a civil partnership (s.3(4)),

In the workplace both religious belief and sexual orientation are protected by legislation, as they are in service provision cases. What happens when both collide, as here? The Judge held that the gay couple were entitled to compensation and awarded them £1,800 each. Cue much wailing and gnashing of teeth from the Christian corner over how their rights had been infringed. The Judge did give leave to appeal and it will be interesting to see if Mr and Mrs Bull do pursue what is a very difficult issue of competing rights in a free society.

I think there are two points to make about this;

This case doesn’t mean that Christians have to accept homosexual people into their homes if they don’t want to. In this case they were running a business – a B&B – a very different matter. They weren’t obliged to let Messrs Hall & Preddy into their private quarters.

Discrimination is always wrong. For instance, if the guests had been refused entry because they were black, or Jewish, or disabled (remember why Glenn Hoddle resigned as England manager?) what would have been the reaction then?

In Thursday’s The Independent a letter writer posed the question “what would have happened had a couple called Mary (heavily pregnant) & Joseph turned up at the B&B and announced they needed a bed for the night and then announced that Joseph wasn’t the biological father”? How would Mr and Mrs Bull’s religious convictions dealt with that one?

A Clash of Cultures: Gay Rights vs Religious Belief originally appeared on Jobsworth by Michael Scutt on 24/01/2011.

Should employers be scared of Jedism?

Michael Scutt — Tue, 06 Apr 2010 11:00:05 +0000

I admit I had to laugh and wondered whether it was an April Fool’s joke come early. I’m referring to the story in The Sun a few days ago about Chris Jarvis, the hoodie, who was refused entry to Southend Job Centre for refusing to take his hood down. He complained. Why? Because he claimed that his religious beliefs had been infringed, on account of him being a member of the International Church of Jediism – i.e he believed he was a Jedi Knight. The job centre subsequently apologised for offending him. He is quoted as saying “Muslims can walk around in whatever religious gear they like, so why can’t I?” ignoring the obvious fact that Islam is one of the world’s great religions dating back to the 600s, as opposed to a science fiction film by George Lucas in 1977. The clue, Chris, might be in the word “fiction”. I would have had more sympathy with him had he argued about the increasing tendency of organisations to cite “security” with glib abandon where there is little risk posed.

Anyway, I digress. What has this to do with employment law? The answer lies in the Employment Equality (Religion and Philosophical Belief) Regulations 2006, which don’t apply to service provision of this sort, but do in the workplace. Should employers be getting nervous about these type of cases? Those regulations prohibit less favourable treatment or harassment to an employee or worker on the basis of their religion or belief. The case of Grainger v Nicholson, decided last year that a belief in global warming could amount to a philosophical belief for the purpose of those regulations, meaning that (in that case) Mr Nicholson was able to claim that his selection for redundancy was a manifestation of discrimination. The court in Grainger set out a five part test for deciding what should constitute a “philosophical belief”;

1. The belief must be genuinely held

2. It must be a belief and not an opinion or viewpoint

3. It must be a belief as to a weighty and substantial aspect of human life and behaviour

4. It must attain a certain level of cogency, seriousness, cohesion and importance

5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

Could an employee claim that he had been discriminated against on the basis that his rights as a Jedi had been infringed? Yes, but the better question is would the claim be successful? Would an Employment Tribunal hold that Jediism was a religion deserving of protection under the Regs? I doubt it: the bar for what qualifies is set high, as can be seen from the above five points. The third and fourth criteria probably end Jediism’s pretensions to recognition. Even in the unlikely event that a Tribunal did decide that Jediism did qualify, the employee still has to show that the reason for their treatment was because of their adherence to that religion and not for some unconnected reason. But, if the religion or belief claimed was more orthodox – say a refusal to undergo conventional medical treatment because of a belief in holistic therapies – that could be a very interesting situation and one quite likely to attratc protection under the Regs, in my view.

One story which was an April Fool’s was posted by Personnel Today last week. Apparently a last minute amendment to the Equality Bill bans wedding rings from the workplace to avoid offending divorcees. Good story. Has anyone else seen any good employment law April Fool jokes?

Should employers be scared of Jedism? originally appeared on Jobsworth by Michael Scutt on 06/04/2010.

Seven Ways for Employers to Avoid Stress at Work Claims

Michael Scutt — Tue, 19 Jan 2010 10:00:45 +0000

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”. Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination. All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal. Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful. There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell. Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.

How to mitigate the risk of these claims arising?

1. Adopt best practice

The Health & Safety Executive publishes a great deal of information on the subject. In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change. The TUC and ACAS also publish useful materials on stress at work.

2. Be aware.

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out. This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW). The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”. The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress. An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.

Take action before it is too late

3. Have a stress policy and adhere to it

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.

4. Act fairly and consistently

Stress claims can arise from incidents of bullying/harassment and victimisation. Put in place policies promoting equality in the workplace – and enforce them. Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion. An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.

5. Contracts of employment (1)

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report. This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.

6. Contracts of employment (2)

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting. Employees tend to become well again once they are not being paid. SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15. Click here for more details on SSP. Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own. Please seek legal advice before deciding to do so.

7. Act decisively

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it. Take legal advice as soon as possible.

Related posts: Coming Soon … Miserable Monday

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.

None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you. You should not rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation. I am always happy to provide legal advice via Dale Langley & Co.

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

Seven Top Stress Management Tips for Employees

Michael Scutt — Mon, 18 Jan 2010 10:20:35 +0000

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author. His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October. Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services. Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees.

Today, Ian focusses on how employees can manage stress.

1. Identify and write down your major stressors

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important.

2. Establish some goals and objectives

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010.

3. Develop a Personal Relaxation Plan

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress.

4. Give yourself some thinking time

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?”

5. Be positive

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.”

6. Practice good time management

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan!

7. Keep a Stress Diary

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas.

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level.

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk. The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

Climate change can be a philosophical belief

Michael Scutt — Wed, 04 Nov 2009 15:14:20 +0000

The case of Grainger PLC v Nicholson UKEAT/0219/09/ZT gained lots of media coverage, including the front page of today’s The Independent (“Green beliefs win legal protection”). I covered the case when it was before the Employment Tribunal and Mr Nicholson initially won. The Employment Appeal Tribunal (EAT) has rejected the company’s appeal and held that Mr Nicholson’s belief in climate change is capable of qualifying as a philosophical belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003. These regulations protect workers with religious or philosophical beliefs from being discriminated against because of their religion or belief. This was a preliminary hearing on whether belief in climate change could qualify within the meaning of those Regulations. Mr Nicholson still needs to return to the ET for the case on its facts to be decided. That will include cross-examination of his beliefs to establish to what extent they govern his life.

It is predicted that this decision will lead to employees being able to claim that they have been discriminated against on the ground of any spurious or loony belief that they might have or pretend to hold. Undoubtedly employers are going to face some interesting assertions of belief over time. To assist in considering what factors should be taken into account when considering the nature of the asserted belief, the EAT set out some guidelines for deciding whether a “philosophical belief” should qualify;

The belief must be genuinely held
It must be a belief and not an opinion or viewpoint based on current information
It must be a belief as to a weight and substantial aspect of human life and behaviour
It must attain a certain level of cogency, seriousness, cohesion and importance
It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

The judgment notes that political beliefs could qualify for protection and, given the furore over Nick Griffin’s recent appearance on BBC’s Question Time and subsequent media concern that the BNP is on the rise, it is interesting to consider whether a member of the BNP who is dismissed from his/her job because of support for the BNP could qualify under these Regulations for protection. This was raised in Grainger and the Court pointed to (5) above as the limitation which should prevent “racist or homophobic political philosophy” from gaining protection. On the face of it, therefore, the hypothetical BNP member would not be able to claim under these Regulations. This is, of course, a fairly new area of law and that particular issue has not yet been tested.

Please contact me with any comments or details of any other cases that take this point further, or if you simply need advice on your own position. I can be contacted on 0207 464 8433 or via email at michaelscutt@dalelangley.co.uk

Climate change can be a philosophical belief originally appeared on Jobsworth by Michael Scutt on 04/11/2009.

Climate change – the new religion?

michaelscutt — Fri, 20 Mar 2009 18:03:46 +0000

If there was any doubt that it was then it has been dispelled by a London Employment Tribunal recently. The facts are interesting enough, but the point of law raised is potentially massive and may cause to happen what Judges fear more than anything else: the floodgates opening! Cue Biblical style disaster, get building the ark now! (Judges and lawyers always worry about “the floodgates” opening when there is a new development in law – it might mean a deluge of cases swamping the courts).

In this particular case, according to The Independent, one Tim Nicholson was employed by a company called Grainger plc, a property investment company, as their Head of Sustainability. His job seems to have been to develop the company’s green policies and reduce its carbon footprint. Grainger apparently had strong policies on corporate responsibility and the environment, albeit Mr Nicholson thought they were just for decorative effect. When he tried to do his job and implement green iniatives he was met with resistance and obstruction.

He was made redundant and claimed unfair dismissal. Importantly, he also claiemd that he had been discriminated against because of his “philosophical” belief in climate change. He had made far reaching ”green” adaptations to his lifestyle and practised what he preached. He brought the claim under the Employment Equality (Religion and Belief) Regulations, which provide that a person shall not be subject to less favourable treatment on the basis of their religious or philosophical belief. What is important in this instance is that a belief in climate change has not hitherto been afforded, officially anyway, the status of a philosophical or religious belief, although you might be forgiven for thinking that it had given the huge amount of publicity given to it. The Regulations themselves do not provide a definition of what constitutes a religion or a philosophical belief. At a preliminary hearing the Employment Judge decided that Mr Nicholson’s green beliefs did come within the protection provided by the Regulations.

The important issue from the employment law perspective is the impact this could have upon claims. We are not told for how long Mr Nicholson was employed by Grainger prior to his redundancy, but if he had less than 12 months continuous employment he would not be eligible to bring a claim for unfair dismissal. However, there is no 12 month qualification period where the dismissal is alleged to have been on discriminatory grounds. Secondly, claims for discrimination are not limited by the statutory cap on compensation (currently £66,200) that applies to unfair dismissal claims.

This wasn’t the final hearing and no judgment has been given on whether Mr Nicholson was dismissed unfairly or discriminatorily. There will probably be an appeal and I would be very surprised if this decision is not overturned at some stage. Keep those floodgates closed!

Climate change – the new religion? originally appeared on Jobsworth by Michael Scutt on 20/03/2009.