Etiquettes of an Employment Tribunal

Very recently I was at the employment tribunal and very embarrassingly (for me) realised my client was not aware of the etiquettes of the tribunal. So I thought I would write a short blog post to help parties understand the rules of the tribunal (though please act with caution as they can differ from tribunal to tribunal):

1. When the tribunal panel enters and exits a room, stand up, and wait for permission to sit down or leave (unless informed otherwise at the outset of the hearing).

2.If you are a Claimant never leave the room without requesting an adjournment (witnesses can leave quietly for rest breaks).

3. When you are answering questions, try and keep an eye on the tribunal panel, if they are writing something down slow down to ensure they have made an accurate note of your answer.

4. When reading your witness statement out load (which over time we will see less of this) ensure that you stop, preferably at the end of the paragraph, whenever there is mention of pages to the bundle. Your advocate will usually request the tribunal panel to read the relevant pages. If you are representing yourself the tribunal judge is likely to ask you if you would like them to read the pages referred to.

5. Ensure you inform your advocate, or the tribunal panel (if you are representing yourself in person), to read all the pages which you believe will further your case. The tribunal panel does not read the bundle in advance of the hearing, and they will only read and (therefore refer to any subsequent judgement) pages which the parties have brought to their attention during the hearing.

6. Usually you do not, require permission from the tribunal judge to take off your jacket, however if you are representing in an unfamiliar tribunal, it will not hurt to ask for permission and may save you some embarrassment later.

That is all I can think of however if my fellow colleagues, can think of anything else, please do leave a comment.

What challenges does social media bring to management?

Employers are increasingly facing challenges in respect to dealing with employee’s and social media such as Facebook, Twitter and YouTube: especially as more and more industries trial the implementation of social media into their marketing plans.

As a solicitor, only yesterday did I attend a course on how social media works, how it should be used and implemented into my marketing strategy. So no doubt given the financial climate, many of us will be using it as a more cost effective way to connect with likeminded people and professionals we would like to do business with (on a reciprocal basis if possible).

So what do employers have in place to ensure that social media can be used safely in their business? There has been some case law and ACAS guidance which helps and assist companies when dealing with disciplinary issues arising from what can only be termed as social media misconduct.

There are two kinds of usage of social media which are prawn to result in disciplinary action, this is:
1. Posting videos, comments, photo’s revealing some form of work related misbehaviour on a social media forum e.g. ringing in sick and them shortly posting ‘off to Alton Towers’.
2. Expressing views which employers do not wish to be connected with their organisation.

Helpfully ACAS produced guidance in January 2011, in their ‘Social Media in the workplace’ http://www.acas.org.uk/index.aspx?articleid=3375. The 2010 my Job Group Survey found that:

- Over half of employees said that had never criticised or talked negatively about their workplace.
- While a third said they had, 19% of this group complained about their boss or owner of the company, 13% had complained/criticised their peers and 12% had criticised their direct manager.
Some commentators have suggested that the way to avoid disciplinary situations is to ensure that employees have a forum where they can let off steam, perhaps this suggestion implemented correctly could be the answer.

Case study’s from the media:

There have been a couple of cases in the media (perhaps ironically) which have been related to disciplinary action having arisen as a consequence of some form of social media. There was the first case of Joe Gordon in 2005 (has social media really been around that long?) who was dismissed as a result of a personal blog which occasionally referenced his work at Waterstone's. These references included details of his shift pattern and it referred to his boss as “evil”. Perhaps, partly due to the media coverage his dismissal was overturned on appeal.

Catherine Sanderson was another one people may recall. She was from memory the lawyer working for a British firm in France, again in a non-work related blog she occasionally referred to her firm and as a consequence was dismissed. She took her employers to a tribunal in France and received an award for wrongful dismissal.

Here in the UK we have recently had sportsmen being disciplined, an example that springs to mind is former Liverpool footballer, Ryan Babel, who was fined by the English Football Association for casting aspersions of the integrity of the referee, Howard Webb, by posting doctored photographs of him in a Manchester United shirt on twitter.

There have also been cricketers and Rugby players who have been fined due to making inappropriate comments on a social media platform.

What should a business have in place?

It will not come as a surprise to any of you, but the most important things would be a social media policy which is well defined and reasonable. This will ensure both management and staff fully appreciate the implications of comments being made on a social media forum.
Employers should ensure that their social media misconduct is not dissimilar to offline conduct.

Ethical considerations:

When considering whether an employee should be disciplined for misconduct from social media which centres around harming the reputation of the company, managers/owners should always consider the scale of the harm i.e. how harmful is it if the comment is read by a relatively small group of people.

How should a company formulate a policy?

If possible (and smaller companies may find this difficult) engage employees in the process of formulating a policy. Ensure that the policy is not too wide (for example making any attempt to set out that employees are responsible for comments made by their friends would be seen as being too wide and potentially unenforceable).
The following should be covered in your social media policy:
1. Network Security.
2. Acceptable behaviour and use for:
- Internet and emails.
- Smart phones.
- Social network sites and
- Blogging and tweeting.
3. Data Protection and monitoring.
4. Business objectives and
5. Disciplinary process.

Is there anything else I should be aware of?

There has been a recent tendency for employers during the recruitment and/or disciplinary investigations to use evidence from the employees Facebook or Twitter account and this can cause all sorts of issues not least the Human Rights Act 1998 (which is very quickly brought into the equation).

If you are an employer, owner or manager you should ensure that you are familiar with the Regulations of Investigatory Powers Act 2000 as material monitored without consent could lead to a claim against you. However, monitoring is not unlawful in the following circumstances:
1. Where the employer reasonably believes he has consent from the employee and
2. Where the employer is monitoring to prevent a crime, protect their business or to comply with financial regulations.

I hope you have found the above information useful and please remember if you are in the process of drafting a social media policy or disciplining an employee for social media misconduct please contact me for case specific advice ideally before any action is taken on 0113 350 4030 or alternatively samira.ali@scesolicitors.co.uk.

Employment law changes from 6 April 2012

From 6 April 2012 the following employment law changes took effect:

1. The continuous service requirement for employees starting jobs on or after 6 April 2012 will increase to two years for unfair dismissal claims. Employees who started before 6 April 2012 will remain under the old regime, a years service. We are unlikely to see the true effect of this rule change until 6 April 2013.

2. Judges will be allowed to sit alone on unfair dismissal claims, where there are no complaints of discrimination or any other detriment. It is likely that all single issue, unfair dismissal claims will be listed to be heard by a single judge. Parties can however, make an application, for members to be present. Unsurprisingly, judges can decide they need their lay members (the trade union and HR representative) to make a decision on the issues to be decided on the day of the hearing (which may lead to postponements).

Unfortunately there is no further guidance in respect to the types of cases, judges will be allowed to sit alone, this will be decided on a case by case basis.

3. Witness statements shall be taken as read and ‘shall be the witnesses evidence in chief’. This is going to particularly impact on employees and employers who chose to draft their own witness statement (no doubt to save cost). Parties should take great care in drafting precise witness statements, if crucial details/information are missing, the witness will have to rely on the opposing advocate or the tribunal to ask them the appropriate question to bring the evidence to the tribunals attention.

Tribunals will be empowered to make a costs order if attendance of certain witnesses was not ‘necessary’ in deciding the issues before the tribunal and was seen as being a ‘time wasting’ exercise.

4. The tribunal will be granted the power to request parties to pay witness expense.

5. Deposit orders have been increased from £500 to £1,000.

The consultations for the introduction of fees for bringing claims and pre-tribunal conciliation continue – and I will ensure you are all kept updated.

Discrimination on the grounds of pregnancy/maternity leave

This week while preparing to defend a claim for discrimination on the grounds of pregnancy/maternity I re-read the interesting case of Johal –v- Commissioner for Equality and HR UKEAT/0541/09/DA where the EAT held (after examining a number of important discrimination cases) that the Claimant had not been discriminated or treated less favourably on the grounds that she was on maternity leave when her employer failed to inform her of an internal role, the real reason was that there had been an administrative error.

The EAT set out that the question a tribunal has to decide is “Why did the employer dismiss her?”. The case was decided in respect to the Sex Discrimination Act 1975 however the principles are likely to be applicable to the Equality Act 2010.

So business owners who have genuinely overlooked an employee because they have been on maternity leave may have a defence. If you are currently in a similar situation and need some advice and guidance please contact me on 0113 350 4030 or samira.ali@scesolicitors.co.uk.

Age Discrimination and ‘proportionate means of achieving a legitimate aim’

Finally the Court of Appeal decision of Woodcock –v- Cumbria Care Trust [2012] EWCA Civ 330

The facts:

Some of my readers will recall that this was an appeal by Mr Woodcock in respect to his age discrimination claim. The Trust dismissed Mr Woodcock on the grounds of redundancy when he was just short of his 49th birthday giving him 12 months notice without a consultation period. The Trust’s reasons for not following the correct redundancy procedure was that had they done so Mr Woodcock would have reached 50 when he was given the notice, this would have entitled him to an early retirement with an enhanced pension. The timing of the notice deprived him of the benefit.

The benefit Mr Woodcock would have attained could only have been achieved at a substantial additional cost to the Trust; and the Trust’s aim in its timing of the notice was to achieve a dismissal on redundancy grounds that would save such additional cost.

The issue

The issue was whether the Trust’s discriminatory treatment of Mr Woodcock was ‘a proportionate means of achieving legitimate aim’. If the answer was in the positive then Mr Woodcock would not have suffered any age discrimination. Both the Employment Tribunal (ET) and Employment Appeals Tribunal (EAT) held that it was and Mr Woodcock appealed.

Mr Woodcock also appealed the finding of unfair dismissal on the basis that he was not provided with a fair and proper consultation.

This case related to direct age discrimination, unlike other forms of discrimination ‘direct age discrimination’ can be objectively justified.

The Court of Appeals Finding:

From the facts, the Court of Appeal found that save for a 'chapter of accidents', the initial consultation meeting would have been held long before Mr Woodcock's 49th birthday so that he would ordinarily have been given notice long before any prospect of the enhanced pension arose.  This was found to have satisfied the 'costs plus' test that had been established in
Cross v British Airways [2005] IRLR423.  As such, the treatment was justified therefore the discrimination claim (along with an unfair dismissal claim) was dismissed.

In light of this decision it seems that future cases raising issues of costs will turn on substantive questions or proportionality rather than whether the employers behaviour was properly to be characterised as cost or costs plus.

This case will prove detrimental for police officers and other public workers, facing compulsory retirement.

The case looked at some interesting issues so if you are going through a similar process make you get legal advice, contact me for a free consultation on 0113 350 4030.

Are interns workers?

It seems that businesses should be very careful in the type of work that they delegate to interns as a recent tribunal (Ms Keri Hudson –v- TPG Web publishing Ltd (TPG) [2011]) held that due to the nature of the work carried out by the claimant she was a ‘worker’ therefore entitled to receive the national minimum wage.

The tribunal in this case heard how the claimant undertook editorial responsibilities without payment.

In the absence of an employment contact the tribunal were satisfied that there was an implied contractual duty on the basis the company had previously discussed remuneration with the claimant and the duties she carried out were of value to the company.

The moral of the case is take legal advice when considering hiring interns.

Statutory Maternity Pay (SMP) - what are the rules?

I think everyone gets confused about maternity and entitlements. So I thought a quick guide to help everyone understand their rights would be useful. Whether you are an employer or employee if after reading this guidance note you are still confused then please do make contact and I will try and place you on the correct path.

Who is entitled to SMP?

Employees qualify for SMP if they satisfy the:

(1) The continuous employment rule:

- This means an employee must be employed by the same employer continuously for at least 26 weeks into the 15th week before the week the baby is due (the qualifying week).

- Exceptions can be made if the baby is born premature.

When can a break amount to being continuous employment? 

When an employee:
- Is absent (for periods of 26 consecutive weeks or less) because of sickness, injury, pregnancy or childbirth;
- Has taken a period of statutory maternity leave, adoption leave, paternity leave or parental leave (in which case, that period counts towards the period of continuous employment);
- Did not take maternity leave but were not working because they had a break to give birth; they worked for the employer before and after the break, and the break is not more than 26 weeks;
- Has temporarily ceased because the employer was unable to offer the employee any work;
- Is away in circumstances in which, by arrangement or custom, is regarded as continuing for some purposes (for example, teachers employed on term-by-term contracts with the same or associated employers);
- Was unfairly dismissed and, after action under the Employment Rights Act 1996, were reinstated (or would have been, but for their pregnancy) and have refunded any redundancy or equivalent payment received from the employer upon dismissal;
- Is away because of a stoppage of work during an industrial dispute. A strike does not break continuity of employment, but the weeks or part weeks of a strike do not count towards the 26 weeks of employment.
Agency workers:
- Workers employed by an agency, in each of the 26 weeks into the qualifying week, satisfy the continuous employment rule providing they did some work during any week.
- There may be complete weeks when the employee did no work for the agency. This does not necessarily mean that the employee’s continuity of employment is broken.

What happens if someone’s employment stops work during or after the qualifying week?

If an employee’s employment ends during or after the qualifying week they can still qualify for SMP from your former employer.

Change of employer

If an employee changes jobs during her pregnancy, she is unlikely to be able to meet the continuous employment rule unless:
- TUPE applies;
- An Act of Parliament, one corporate body takes over from another as their employer;
- There is a change in the partners, personal representative or trustees who employ them;
- They move from one employer to another at a time when the two employers are associated employers, that is if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control;
- The employee is a teacher in a school maintained by a local education authority, and the employee moves to another school maintained by the same authority.

(2) The Earnings Rule

To qualify for SMP the employee’s average gross weekly earning must be at least£97 per week for the tax year 2010/2011 and £102 a week for the tax year 2011/2012.

As a general rule, the employee’s earnings will be averaged over a period of at least 8 weeks up to and including the last pay day before the end of the qualifying week. This period is called the 'relevant period' (but this may vary depending on how the employee’s salary is paid).

What if the employee’s employment contract ends?

If an employee satisfies both the continuous employment rule and earning rule the employer must pay SMP even if their contract ends at any time after the start of the qualifying period the employer must pay SMP.

How much SMP do employee’s get?

- The first six weeks are paid at 90% of the employee’s average gross weekly earnings with no upper limit and
- For the remaining 33 weeks at the lower of either the standard rate of £128.73, or 90% of your average gross weekly earnings.

Is there anything else that employees must do to qualify for SMP?

YES they must:

- Tell their employer when they want their SMP to start and
- Provide medical evidence of the date the baby is due