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Mind Your Language: Polyglot Personnel Problems

10th March 2016

Few employers nowadays would be so unaware of race discrimination legislation, or so indifferent to it, that they would instruct employees whose first language was not English not to speak in that language at work. At least not without a very good reason. A claim for discrimination (less favourable treatment) or harassment (violation of workplace dignity) might generate language of an entirely different nature… So what might amount to a very good reason? “Making others feel excluded” might tick the right box here, as long as this related to communication about work related issues during work time. It is plain common sense that if Polish employees converse with each other in Polish during the lunch hour, this would hardly justify a manager’s reprimand or a complaint from an excluded colleague. What about workplace security? A recent case in the Employment Appeal Tribunal, Kelly v Covance Laboratories, addressed that very issue. The company worked in animal testing and was rightly concerned to protect itself against terrorist infiltration. It became suspicious of K, a new recruit of Russian nationality, when she was overheard having long conversations in Russian on her mobile phone in the office toilets. She was warned not to speak Russian at work, so that any conversations she had in the workplace could be understood by English speaking managers. In due course, facing a capability meeting and a disciplinary process for undisclosed criminal convictions, K resigned and brought claims for discrimination and harassment. The claims failed. Although the instruction not…

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Online Selling and Dispute Resolution: a mandatory link

5th February 2016

Do you run a business selling goods or services online? You do? OK then, did you know that with effect from 9 January 2016, your website must carry a link to the EU Commission’s Online Dispute Resolution platform? You didn’t? Well, you may not be alone, and you will probably be curious to know more. The explanation lies in the Alternative Dispute Resolution for Consumer Disputes Regulations 2015;, the relevant provisions coming into force on 9 January 2016. On pages 4&5, we may note the formula “the trader must provide a link to the ODR platform”. What exactly is the ODR platform, then? The definition is to be found on page 2: – “a European online dispute resolution platform established under Article 5 of Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes”. Here is the link to the ODR – only too pleased to help. Now it’s over to you and your website designers. Please feel free to let us know if you need any further legal overhaul for your online terms or anything related. http://ec.europa.eu/consumers/odr/ You may, of course, be wondering why you have not been required to link to the Pre-Action Conduct Practice Direction of the Civil Procedure Rules of England & Wales, a good practical source of information about dispute resolution and how desirable it is. You probably won’t be alone. But that’s a question to raise with a politician, not a…

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Private Email at Work: Green Light (to snoop) or Red Herring?

25th January 2016

From an employment law perspective, what are we to make of the 12 January 2016 decision in Barbulescu v Romania, which has been proclaimed in the more excitable areas of the media as a green light for employers to snoop on private email at work? Let’s take a few steps back. Mr Barbulescu was dismissed on 1 August 2007. His first instance challenge to the dismissal failed, and his appeal against that decision was dismissed on 17 June 2008. So he took Romania to the European Court of Human Rights on 15 December 2008, leading to the present decision over 7 years later. Mr Barbulescu’s employer had internal regulations prohibiting use of company resources for personal purposes. In defiance of those regulations, he was shown (after 8 days’ company monitoring) to have used his company Yahoo Messenger account for personal purposes. He claimed he did so only for professional purposes. The company showed him written evidence of his wrongdoing and dismissed him. So after breaching company rules, being found out, lying to his employer and troubling the Romanian courts to no avail, Mr Barbulescu chose to take his native country to an external court, citing Article 8 of the European Convention on Human Rights (“dismissal based on a breach of privacy”) and Article 6 (“unfair proceedings before domestic courts”). With the latter being found to be manifestly ill founded, what would the ECHR make of the former? The answer: although Article 8 was applicable, because the employer had engaged Mr…

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Latent Disability – The Pitfalls Of Not Knowing (Part 2)

30th November 2015

Are you looking for a decent book to read over Christmas? A legal suspense/drama, perhaps, preferably set in the UK for a change? You’re in luck. There’s always “Craven Conflict” by David Cooper of this firm. It’s available for an immediate download via Amazon’s Kindle Direct service at only £1.99. From the back cover: – “Barely days after recruitment consultant Karen Rutherford’s right hand man unexpectedly quits his job, she discovers to her horror that he has stolen her database and launched an underhand campaign to entice her clients away and destroy her business. Her anger turns to disbelief when the law fails to come to her immediate aid. With her livelihood threatened to the core, she finds herself locked into a courtroom battle that escalates into bitter conflict when a fraught episode from her private life pours oil on already troubled waters. Not far away, legal executive Paul Craven can barely believe his luck and his headhunter’s skills when he lands his dream job. Or so he thought. As the cold reality of the new workplace sinks in, it slowly dawns on him that his deepest personal secret – the fact that he is afflicted with Asperger’s Syndrome – may be impossible to keep to himself any longer. Amid the turmoil, being drawn into someone else’s commercial dispute was all he needed… Craven Conflict. Unwelcome choices. Harsh decisions. Barely lesser evils.” So how does this tie in with the pitfalls of not knowing about an employee’s latent disability? Here’s…

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Latent Disability – The Pitfalls Of Not Knowing (Part 1)

20th November 2015

Imagine you are an employer accused of disability discrimination. You will soon become aware that “disability” is defined under the Equality Act as (a) a physical or mental impairment that has (b) a substantial and long term adverse effect on (c) the employee’s ability to carry out normal day to day activities. In many cases, the disability will have been obvious. But what if it was mental rather than physical, and therefore invisible? What if someone who you never suspected to be a disabled person alleges that you have failed to make reasonable adjustments? Are you vulnerable to a claim regardless of your professed lack of knowledge? The quick answer, under s.15(2) Equality Act, is that if you did not know and could not reasonably be expected to know that your employee had a disability, this is a defence. As ever, the devil is in the detail. There may be no statutory duty to enquire about possible or suspected disability, but the Equality & Human Rights Commission’s Employment Code suggests you should do all you reasonably can to find out. Tricky, isn’t it? What should you do about a poor performer who everyone in the office thinks of as unusually eccentric? Should you stay focused on performance issues alone, or ask a few leading questions about disability? What would trigger any legal duty to ask? What about the risk of offending a very private person who had decided to rely on coping strategies? Let’s look at some cases. Starting with…

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Derogatory Facebook comments: dismissal fair?

12th November 2015

In the case of David Smith, the respondent to his employers’ successful Employment Appeal Tribunal appeal in British Waterways Board v Smith, it was indeed. He will no doubt have kicked himself for insulting his supervisors in robust industrial language on his Facebook page, and for failing to convince the disciplinary panel that his Facebook account had been hacked after online stalking. But that, however, is only part of the story. A colleague who was also found to have posted highly offensive Facebook comments escaped with a final written warning. Another whose comments were criticised but not offensive was let off with an oral warning. What tipped the balance? In Mr Smith’s case, his role required him not to drink alcohol when on standby. His Facebook postings also boasted that he had done so, in defiance of the requirement. With his employer thereby left open to condemnation on a public forum, dismissal fell within the range of reasonable responses open to a reasonable employer. It will no doubt have helped greatly that it had a written policy that barred employees from “any action on the internet which might embarrass or discredit British Waterways, including defamation of third parties, for example by posting comments on bulletin boards or chat rooms…” And here’s a twist. When did Mr Smith post the comments? Two years before his dismissal. Did that provide any scope for a plea for leniency? It did not. The lessons? Employers can reap clear benefits from a written social media…

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Autumn Newsletters

28th October 2015

Our autumn newsletters are now available to read on the Newsletters page. The recent Tyco decision, addressing when travelling time will count as working time, is covered in the employment newsletter, along with a further recent tribunal decision (Truman) about associative discrimination – in other words, when the protected characteristic is not the claimant’s, but that of someone associated with the claimant. What about product shapes? Can they count as trade marks? On the commercial side, there is an important decision involving KitKat among this season’s articles. Interested? You’ll find the Employment newsletter here and the Commercial newsletter here.

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Can a limited company claim discrimination? You may be surprised…

28th September 2015

At first sight, it would be all too easy to react to today’s Employment Appeal Tribunal finding in EAD Solicitors LLP & others v Abrams, namely that a limited company can claim discrimination, by asking out loud how a limited company can suffer hurt feelings and whether the law is determined to prove itself an ass once more. But there is more to it. The decision is well reasoned under the Equality Act. In this case, the allegation was of age discrimination, and the limited company was the personal service company of the other claimant Mr Abrams. The company provided Mr Abrams’ services to the LLP, and took his profit share on his behalf. Matters turned sour when the LLP sought to terminate the company’s membership once Mr Abrams’ notional retirement date had been reached. So how did the limited company win through? As the EAT concluded, the Equality Act does not deal with individuals on the basis of their protected characteristics (race, sex, age etc), but identifies discrimination as treatment caused by or related to a protected characteristic. The focus is subtly different from what might be assumed. So on the special facts of this case, where the discriminatory act was still linked to Mr Abrams’ age, there was said to be no reason to fear the opening of the floodgates. The closing comments of Langstaff J are, however, worthy of note. What if a company is shunned commercially because its workforce is primarily composed of protected minorities, or…

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When can travelling time to and from work become working time?

10th September 2015

Do you employ staff without a fixed workplace, whose duties involve attendance at customer sites that vary from day to day – care workers, heating engineers, sales reps and so on? Have you always taken it as read that they will begin their working day at the customer’s site and arrive on time to do so, and will not have any right to claim pay for their travelling time to and from their home address? Were you safe in the assumption that it was never going to occur to them to contend that their daily commute should count as part of their working day, when it would have been absurd for your office based staff to do so? It may be time to think again. Today’s decision of the European Court of Justice in the gloriously named Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL, which will hopefully be abbreviated to Tyco or TIS when cited from now on, has made it clear that for workers without a fixed or habitual place of work, time spent travelling between their homes and the premises of their first and last customer counts as “working time” under the EU’s Working Time Directive. How come? Well, in the ECJ’s view, the journeys of such peripatetic workers are an integral part of their role, and a necessary means of providing their services to their customers. In this particular case, because the employer determined all of the appointment times and their…

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Summer Newsletters

15th July 2015

Our summer newsletters are now available to read on the Newsletters page. Among the new employment issues, one that may be of particular interest is the effect of giving – or indeed receiving – a final written warning that is tainted by bad faith. The significance, of course, is that the outcome of a later disciplinary process will usually be materially influenced by any live written warning. On the commercial side, there is a cautionary tale about the consequences of a commercial contract payment application being submitted six days too early. Half a million pounds’ worth of delayed cashflow is no trivial matter. Interested? You’ll find the Employment newsletter here and the Commercial newsletter here.

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