Archive for the ‘Disciplinary & Grievance’ Category

Sharon Shoesmith was dismissed by Haringey Council as its director of childrens’ services after the death of Baby P for gross misconduct and without the right to a disciplinary process as required by UK employment law. In other words, she was not given the chance to defend herself and therefore the tax payer will be shelling out a shilling. It stands as a stark reminder to employers everywhere that however wrong you may think an employee is, they do not forfeit their right to a fair hearing.

In its defence her employer, Haringey Council, said it was under pressure from the Secretary of State Ed Balls to fire her.

The Court of Appeal has rejected Shoesmith’s appeal in relation to OFSTED but upheld it against the Secretary of State for Education and Haringey Council. The judge said the dismissal was unreasonable: “she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated”.

Despite the tragic events which led up to this case, every employee is entitled to the right to reply when their job is on the line. Ed Balls was either lashing out, attempting to save his own skin or buckling under pressure. I don’t know which it was but in any case it was wrong. Crikey, even TV audiences have the right to reply and  if the government thinks itself above the law,  it is in the wrong country. Thank goodness!

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An employer sent me an email yesterday as follows: “I’ve received a letter from TV Licensing regarding licenses on commercial/business premises. Apparently employees would be breaking the law if they watched TV or recorded TV programmes on computers, laptops etc. ”  This is correct to some extent (see references to ‘Live’ programmes and similar terminology) so employers need to have policies in place to ensure that employees are not in breach of copyright regulations. (Our standard policies include this precaution see Employment Law Essentials). Here are the specifics, as usual the devil is in the detail  and the following extract from Advice Guide is a practical start.

Who needs a television licence?

You need a TV Licence to use any television-receiving equipment to watch or record TV programmes as they are being shown on TV. These include programmes on the BBC, ITV, Channel 4, Channel 5, cable and satellite television. Television-receiving equipment includes:

  •     TV sets
  •     set-top boxes
  •     DVD recorders
  •     video recorders
  •     computers and laptops
  •     mobile phones or other battery-operated devices
  •     games consoles

You don’t need a television licence if a TV set cannot receive TV programmes and is used only:

  •     for close circuit monitoring
  •     for watching pre-recorded videos or DVDs
  •     as a computer monitor – see under heading You don’t use your television set or other device to watch or record broadcast programmes.

You don’t need a TV licence if you only ever watch catch-up services, like BBC i-Player, that let you watch programmes after they have been broadcast.

A television licence allows the person named on it and any member of their household to use one or more television sets or video or DVD recorders at the address covered by the licence. If you are covered by a licence at your home address you are also covered to use a battery-powered device, such as a laptop or mobile phone, to watch live TV when you are away from home.

If you only have a black and white television, you only require a black and white television licence. If you have a colour television, a DVD recorder or video recorder, you will require a colour television licence. This will apply even if the DVD or video recorder is used with a black and white television set.

You don’t use your television set or other device to watch or record broadcast programmes

If you do not use your television set, video recorder or DVD player to watch or record live broadcast programmes (that is, BBC, ITV, Channel 4, Channel 5, cable television or satellite television) you will not need a licence. This means that you would not need a licence if, for example, you only:

  •     use the television set as a computer monitor
  •     use the television set to play electronic games
  •     watch pre-recorded videos or DVDs, whether or not these have been bought or recorded by someone else

However, the television set must be incapable of receiving all live broadcast programmes. This could be done, for example, by making sure that a television set, DVD or video recorder are not:

  •     tuned into any channels
  •     connected to an aerial
  •     connected to any cable or satellite services

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A station master has been sacked for risking his life to save others. UK employment law and Health and Safety regulations often go hand in hand for many employers especially if they operate in high risk industries, such as railway travel. In this case, South West Trains say they have taken the decision to sack popular station master, Faletto, on grounds of gross misconduct after he went onto the track to remove a shopping trolley which may have been capable of causing a serious accident.

The problem is that from an employment law and health ans safety perspective, Faletto had to contravene safety regulations to do so and this led to the accusation of gross misconduct. Mr. Faletto says he took action in an emergency situation and that in such circumstances the employer’s safety regulations allowed such an intervention. The case is likely to centre around employment law principles such as whether it was reasonable for the employee to take the action he did in the circumstances, and was it reasonable for the employer to find him guilty of gross misconduct, and if so, was it reasonable to sack him for the offence or were mitigating factors such as length of service, unblemished record, contingent circumstances (Mr. Faletto believed his request to turn off the power had been actioned) and so forth, capable of reducing the penalty to a disciplinary warning?

If the matter goes to court the tribunal will be the arbiter of these questions. The country will await the outcome of the tribunal’s decision which is likely to have an impact on other employment law dismissal cases where contravention of safety regulations are involved in extreme circumstances.

Ian Faletto has been praised for his customer service and has won many awards in decades of service for South West Trains who are standing by their decision and dismissed his appeal. The public are coming out in support for Mr. Faletto in their droves and petitions, PR and BBC coverage will all serve to put pressure on South West Trains whose journey through the employment law tribunal will not necessarily be an easy one!

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An electrician and former soldier faces the sack for displaying a small palm cross in the window of his company van.

As reported by The Telegraph, Colin Atkinson, 64, from Wakefield, has been called to a disciplinary hearing at the housing association where he has worked for 15 years.

His bosses at the publicly funded Wakefield and District Housing (WDH) have demanded he remove the eight inch long cross made from woven palm leaves that sits on the dashboard of his van.

A spokesperson for the Council said “We do not allow employees to display any personal representations in our vehicles, although they are free to do so upon their person.”

This is interesting in that it is a reminder of a case in 2010 when the English courts held that it was not unlawful discrimination for the employer (British Airways) to ban Nadia Eweida, a Christian employee from wearing a cross at work.

The Court of Appeal ruled that to establish indirect religious discrimination, an identifiable section of a workforce (quite possibly a small one but not a solitary individual) must be shown to suffer a particular disadvantage. Ms Eweida is taking her case to the European Court of Human Rights.

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City law firm Allen & Overy allegedly told female solicitors to increase the lengths of their skirts and reduce the height of their heels or face “uncomfortable discussions” with the human resources department reports The Telegraph. The instructions were  sent by email to trainee solicitors at the firm by the trainee solicitor liaison committee.

The email allegedly said “We’ve been asked to draw your attention to the fact that HR have received numerous complaints about the way female trainees have been dressing around the office,” and went on to point out that the recipients were not going clubbing but rather they were going to work and should dress accordingly.

The news was broken by Allen & Overy insiders on the legal industry’s insider blog ‘Roll On Friday‘.

The story has a catchy headline and no doubt there will be many outraged employees who believe it is their right to wear whatever they want to work. Sorry to be the bearer of bad news, but in fact, that isn’t true!

From a practical point of view, I find the dress code is a very sensitive subject for most employers who struggle to get the tone right in terms of content, implementation and finally, managing any breach of the policy. Some find it so awkward that they don’t bother with a dress code at all and would rather deal with trangressions on an ad hoc basis. Not ideal!

But while employers have a right to require employees to dress appropriately they also have a duty to keep their employees informed of their policies and procedures and I applaud the firm’s intervention at an early stage.

Better to let employees know what is expected from the start than to turn a blind eye and hope things will improve without intervention. Not every employee burns the midnight oil reading the Staff Handbook and it is totally unnecessary to resort to disciplinary action in most of these cases if HR takes an educational and informative approach.

However, if the parties do end up in court an employment tribunal is likely to want to know what action HR took to make employees aware of the policy before taking disciplinary action.

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Unless the contract of employment states or can be interpreted otherwise, notice to leave will run from the day after it is given, irrespective of whether notice is given verbally or in writing.

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This is the first UK libel case arising out of Tweeting.  Employers need to be careful when employees use social media at home or at work. Whether you require staff to promote your business through Twitter or make new contacts on Linkedin, it is vital to put a social media policy in place first as this UK libel action is likely to be the first of many as witnessed by the US in recent years.

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