Staffordshire Solicitors | Solicitors in Stafford and Rugeley - Hand Morgan and Owen - Employment E-Bulletin

HMO QUARTERLY EMPLOYMENT BULLETIN – JULY 2010

RELIGIOUS DISCRIMINATION
In the recent case of McFarlane v Relate The Court of Appeal has held that dismissing a Relate counsellor for refusing to counsel same-sex couples was not discriminatory on the grounds of religion or belief. The judgment, applying a similar case of London Borough Islington v Ladele (in which a Christian registrar refused to perform civil partnerships), is authority for the proposition that there is nothing in the Employment Equality (Religion or Belief) Regulations 2003 or in the Human that entitled Mr Mcfarlane to refuse to provide counselling services to all sections of the community.

ILLEGIBLE WRITING AND CLAIM FORMS
In the case of May v Greenwich Council The Employment Appeals Tribunal dealt with a case concerning a illegible claim form.

Mr May presented a claim form on the last available date of the required three month period. In attempting to fit everything into the ET1 form, which he completed by hand, his handwriting became rather diminutive.   The Tribunal rejected the Claim on this basis and his Claim there fore became time barred before he could resubmit his form.

The EAT allowed Mr May’s Appeal and stated that Employment Tribunal could not refuse to accept the claim under rule 3(2) of the Employment Tribunal Rules (that the claim does not have the required information) because of partial illegibility where the Claim Form contains the required details.

Interestingly the Judge stated that this particular claim form was legible and that a document is only illegible if it is not possible read without the need to use a magnifying glass!

EMPLOYEE MISCONDUCT AND POLICE INVOLVEMENT
In the case of Secretary of State for Justice v Mansfield The Employment Appeal Tribunal ruled on whether it is reasonable for employers to suspend misconduct investigations whilst the employee concerned is being investigated by the police.

Mr Mansfield a prison officer was suspended on a variety of charges including allegations of planting drugs in prisoner cells. He was suspended in May 2006 pending an investigation by the prison service. At this point the police also began an investigation into the matter which resulted in a prosecution. However criminal charges made against Mr Mansfield were dropped by April 2007 and the prison’s internal investigation resumed thereafter. A disciplinary hearing took place in January 2008 where after Mr Mansfield was dismissed for gross misconduct. This decision was upheld at two subsequent internal appeals.

Overturning an Employment Tribunal decision the Employment Appeal Tribunal reversed this decision, holding that it is not unreasonable for an employer to suspend its internal investigation pending a police investigation into the same misconduct

MISCONDUCT INVESTIGATIONS
When considering an unfair dismissal case involving misconduct employment tribunals will look at whether the employer’s investigation was fair and reasonable. An employer need not have conclusive proof of an employee’s misconduct but a genuine and reasonable belief.

In the recent Court of Appeal case of Salford Royal NHS Foundation Trust v Roldan the employee, who had been recruited from Singapore in 2003, claimed unfair dismissal on the basis that the employer had failed to conduct a proper investigation into her alleged misconduct.

In considering whether the investigation was fair and adequate, a Tribunal should look at the consequences for the employee of a finding of unfair dismissal and also the surrounding circumstances

This case reached the Court of Appeal where it was clarified that the more serious the consequences of dismissal for the employee, the more careful an investigation is required.

In the case the circumstances were that the employee had given 4 years service apparently without complaint and if the dismissal had been found to be fair there would have been a real risk of a detriment to her career and the employee would have been at risk of deportation. Accordingly a more careful investigation was needed because the consequences. The Court of Appeal ruled that the Tribunal had been entitled to find that the dismissal was unfair

THE EQUALITY ACT
With 210 clauses, 28 schedules the Equality Bill received Royal Assent on 8 April and became the Equality Act 2010. It is scheduled to come into force in October (new government allowing)

In essence the Act is intended to harmonise and extend the various areas of discrimination law.

Key changes include ;

•   Significantly extending the law on associative discrimination across all strands of discrimination legislation so including age, disability, sex and gender reassignment

•   Banning pay secrecy clauses that prevent employees disclosing their pay details

•   Allowing Employers to take positive steps to recruit groups who are under-represented in their workforce where they have a choice between two equally suitable candidates

•   Tribunals dealing with discrimination claims will be given the power to make recommendations for actions by the employer which affect the whole of their workforce not just the person who brought the claim, for example the retaining of staff.

•   A new obligation for landlords and managers of residential properties to make reasonable adjustments for disabled tenants in respect of common areas.

Look out for more detailed analysis later in the year.

IMPORTANCE OF RISK ASSESSMENTS
The importance of adequate risk assessments was highlighted in the recent
Health and Safety Executive (HSE) prosecution of Hanson Building Products over an incident in which a worker was killed by crush injuries to his head.

The company from Coleshill in Warwickshire were fined £280,000 for a fatality at its distribution plant in April 2008 that saw a workers head crushed between blocks on a conveyor belt.

He was quality checking the blocks when another employee - who could not see him due to an obstructed view - changed the direction in which the conveyor was heading.
The HSE investigation into the incident found that the company had only identified the risk of workers trapping their fingers between the blocks and the stairway. The Company was fined after admitting a breach of Section 2(1) of the Health and Safety at Work etc Act 1974.
Whilst insurers will provide cover for damages and costs from a civil claim a fine from a criminal prosecution will rarely be covered.

12 July 2010

If you would like to read other articles, fact sheets and bulletins on Employment Law go to http://www.hmo.co.uk/content/view/87/93/

For advice and assistance in respect of Employment matters contact Nigel Pepper, Consultant or Patrick Nelson, Associate on 01785 211411.

Disclaimer
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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