Welcome to the May edition of our monthly Newswire, where you will find the usual selection of articles on various topics related to HR and employment law. If you want to discuss any of the issues raised in more detail, just pick up the telephone and give me a call. I look forward to hearing from you.
We are currently running a lot of internal training sessions for our clients and contacts. In the course of preparing myself for a seminar on equality and diversity, I came across a recent Personnel Today article on the case of Wickers v Colchester Visionplus. This dispute concerned a former employee of a Specsavers franchise who successfully claimed for disability discrimination after a company director made comments to the effect that:
“everyone gets depressed sometimes, you just have to pull yourself together”.
Now I might be inclined to say that you don’t need to have undergone detailed equality and diversity training to know that this probably wasn’t the right thing to say. Nevertheless, it aptly illustrates the sorts of mistakes and errors of judgement that managers and supervisors can make, especially if they have never taken the time to think about their duties and responsibilities in this area. As if to underline the point, you may also have read about the recent resignation of Shane Sutton, former technical director at British Cycling. He has been accused of (i) telling a female cyclist to “go and have a baby” and (ii) making derogatory comments about Paralympic athletes. These are allegations that he denies. Nevertheless, once again, it reminds us of the importance of knowing what is and isn’t acceptable behaviour in the workplace.
Of course, the unfortunate reality is that whatever your colleagues might say or do, it is generally the business that will carry the can. That is unless the business can show that it took ‘all reasonable steps’ to prevent the discriminatory behaviour from happening in the first place. Establishing the ‘reasonable steps’ defence is not easy. But an important part of the jigsaw puzzle is the ability to show that you have trained your staff in relation to equality and diversity issues. With this in mind, why not kick things off by asking us to run a training session for you and your colleagues. And before you start to worry, we normally run these sorts of sessions completely free of charge. So that’s one less thing for you to worry about, isn’t it?
If you are interested in discussing this offer further, just drop me a line or give me a call. I look forward to hearing from you. Is it contractual or not? Department for Transport v Sparks Around this time last year, I commented on the case of Department for Transport v Sparks. Following further developments in this ongoing dispute, I thought that I ought to update you.
This case concerns the DfT, which wanted to update its staff handbook. More specifically, it was seeking to change the ‘trigger points’ at which its absence management procedures were activated. Rather than waiting until employees were absent for 21 days, the procedure was to be activated after as few as 5 days’ (or 3 occasions of) absence in any 12-month period. The High Court was asked to consider whether the relevant provisions in the DfT’s handbook were contractual, such that the employees’ consent to any variation would be required.
The High Court found in favour of the employees, concluding that the wording of the handbook suggested that the absence management procedures were part of the employment contract. The High Court also found that the DfT could not unilaterally change the ‘trigger points’ without consent. As a result, the High Court ordered that the employees' original contractual terms should be reinstated.
The DfT was not prepared to leave it there and appealed to the Court of Appeal (CA). However, in a recent judgment handed down on 14 April 2016, the CA agreed with the High Court and dismissed the DfT’s appeal. The CA was satisfied that the wording of the handbook pointed to a 'distinct flavour of contractual incorporation'. The CA reinforced the point by stating that the particular provisions in question were 'apt for incorporation' into the contract and thus could not be varied without the employees’ consent.
This case reminds us all of the importance of being clear about which parts of your handbook are contractual and which are not. I know that it can seem like a good idea to make all your policies and procedures contractual. But you need to bear the following points in mind:
For both these reasons, it is normally preferable to make your handbook (or at least most of it) non-contractual, giving you greater flexibility to change your policies and procedures as and when you choose. If you need our help in reviewing your policies and procedures, please get in touch.
There have been a number of cases over recent years which have wrestled with the question of what to do when different moral and religious beliefs collide. Another such case has come along in the form of Wasteney v East London NHS Trust.
In the course of her employment, Ms Wasteney allegedly sought to convert a junior member of staff from the Muslim to the Christian faith. She used a combination of prayer, the laying on of hands, inviting the employee to church services and giving her books about conversion. The Muslim employee complained about Ms Wasteney’s conduct, as a result of which she was found guilty of serious misconduct and given a formal warning. In response, Ms Wasteney brought claims against the NHS trust for religious discrimination and harassment.
Having lost at an Employment Tribunal hearing, Ms Wasteney appealed to the Employment Appeal Tribunal (EAT). However, the EAT upheld the ET’s original decision. Whilst the NHS trust would have been wrong to discipline Ms Wasteney simply for holding or manifesting her religious beliefs, it had acted lawfully in finding that she had overstepped the mark in the way in which she had behaved towards a more junior member of staff.
These sorts of situations are particularly difficult to deal with. But a good first step would be to run an internal training session for your managers and supervisors. You know it makes sense. Enforcing restrictive covenants - Is money the solution? You will, no doubt, be aware of how difficult it can be for businesses to enforce the restrictive covenants included in their contracts of employment. The recent case of Bartholomews Agri Food v Thornton considers whether a cash payment to the employee might be the solution.
Mr Thornton’s employment contract contained a post-termination restriction that, broadly speaking, sought to prevent him from providing competing goods and services to Bartholomews’ customers for a period of 6 month after the termination of his employment. Very unusually, as part of the arrangement, Mr Thornton’s employer promised to pay him his normal salary for the duration of the restrictions, regardless of the fact that his employment had terminated and he was (subject to complying with the restrictions) free to take up new employment elsewhere.
Having reviewed the contract terms and considered the evidence, the High Court ruled that the restrictions were unenforceable. In particular the judge found that:
Indeed, the judge went further and concluded that it would be contrary to public policy to allow Bartholomews to 'purchase' a restraint of trade of this nature. So is money the solution to the problem of enforcing restrictive covenants? It would appear that the simple answer is “no!” One more thing…
Whilst we are on the subject, the government has issued a ‘call for evidence’, seeking views on whether post-termination restrictions might be stifling British innovation. If you want to make you feelings known, you can find more information here:
James Willis Head of Employment 01293 596931 james.willis@stevensdrake.com
stevensdrake © 2019 All Rights Reserved. Authorised and regulated by the Solicitors Regulation Authority Number 525527. *stevensdrake* and *stevensdrake solicitors* are trading names of stevensdrake limited (registered in England and Wales under number 7159192). A list of the directors is displayed at the above address. stevensdrake are authorised and regulated by the Financial Conduct Authority (FCA) for debt collection and insurance mediation. It is registered the FCA under registration number 702596.
