Wright, Johnston & Mackenzie Solicitors

WJM Employment Team win major award

WJM?s Employment Team won the prestigious Employment Firm of the Year Award at the Law Awards of Scotland Ceremony on 18th September.

The Awards, described as ?the Oscars for the profession? by no less a person than Helena Kennedy QC, are judged by a distinguished panel of experts based on submissions from both clients and the individual firms.

Martin Stephen, Head of Employment said “This Award was won against tough competition on the basis of a concerted effort by the WJM Employment Team?. Martin praised the efforts of Andrew Wilson, Liam Entwistle, Fraser Gillies, John Grant, Fiona Robertson, Laura Kelman and Julia MacDonald who make up the core of the team.

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Stressed out by phoning in sick?

Over recent years employers have sought a variety of methods to stop employees taking liberties with sick days, an example being rewarding employees who do not take a sick day within a set time period with some form of reward or bonus.

However, the battle has made a technological leap with the planned introduction by some companies of Voice Risk Analysis computer software. This software will measure the amount of stress in an employee?s voice when they report in sick. The idea is that it will be harder to lie to the computer than it is to the employer.

Those of you who attended the most recent WJM Employment Club seminar, will know that the issue of managing sickness absence can at times be very difficult. If you want to discuss how you can better manage sickness absence, or if you want to come along to one of our free Employment Club seminars, please contact us.

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?Dramatic? might be an understatement . . . !

In July the European Court of Justice (ECJ) published a highly important, and potentially nightmarish decision for employers.

In Coleman v Attridge Law, a claim was brought by Ms Coleman that she had been ?subject to unfair constructive dismissal and had been treated less favourably than other employees because she was the primary carer of a disabled child?.

The case was referred to the European Court of Justice (ECJ). The ECJ was asked to interpret whether the Equal Treatment Framework Directive prohibits discrimination by association, where the discrimination and harassment is based on the association by the employee with a disabled person.

The ECJ ruled that the Directive was not intended to protect against associative discrimination in these circumstances. The Directive is EU law that has been transposed into UK law as the Disability Discrimination Act 1995. As the Directive applies to age, sexual orientation, religion and belief as well as disability, this decision would appear to lead to the conclusion that discrimination by association with a person falling under one of these other categories will be unlawful too.

There is still some way to go with this case, but as it develops we will keep you informed.

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Investigations need to be adequate

The Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s finding that even if an employer truly believes that an employee has acted fraudulently, it must show this has been reasonably and adequately investigated.

In this case two employees of William Hill Organisation Ltd were dismissed on the grounds of fraud. However, the Employment Tribunal held that the investigation conducted was not adequate enough to allow a conclusion of fraud to be reached, and therefore the employees were held to be unfairly dismissed.

This case highlights the importance of following procedure when it comes to dismissals. The law remains unchanged - employers must carry out a reasonable investigation, even in the most blatent cases of dishonesty, and have reasonable grounds for believing that an employee has been dishonest before dismissing.

For help on procedures and investigations, please contact us.

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A delay not so bad after all?

In the recent case of Selvarajan v Wilmot, the Court of Appeal has overturned a number of EAT decisions relating to unreasonable delay when following procedures.

The employer dismissed an employee and then took 4 months to deal with the appeal against the dismissal. Unreasonable delays such as these, have been held, under previous EAT judgements, leading to a finding of unfair dismissal.

However, the Court of Appeal ruled that, as the procedure had been completed, it was not an unfair dismissal. Care must be taken however. The finding in this case does not, however, give employers the right to take as long as they like to deal with such matters.

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Where is your place of work?

This might seem an obvious question for all of us, but a recent case has shown it might not be that clear cut.

Gordon Williams, a self-employed decorator, was driving in his van and smoking when he was stopped by local Council officials. To his surprise, they told him he was stopped because he was smoking in a public place. The officials believed that the smoking ban legislation applied to his van because it was his ?place of work?.

Mr Williams lost his case. He plans to appeal because the vehicle is insured for private, not business, use. Mr Gordon summarised his predicament by stating, ?it is not my place of work ? I decorate houses, not vans.?

If you want advice on how to make sure you comply with the smoking ban in Scotland, please give us a call.

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Government to crack down on ?rogue? employers

Early in August, the Government started a new drive to crack down on employers who take advantage of vulnerable workers to undercut other businesses. The drive will incorporate a telephone helpline for employees and a ?6 million campaign aimed at raising awareness of employment rights. A new body, the Fair Employment Enforcement Board, will also be created which will co-ordinate the work of a number of Government agencies and will be chaired by the Minister for Employment Relations. The Board will draw members from business, unions and other enforcement agencies.

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Age Discrimination Cases to be put on hold

Due to the current appeal of the Heyday case to the ECJ, the Court of Appeal has ruled that cases which raise the same issue as the Heyday case should be ?stayed?, which means they will be put on hold until a final decision is made in Heyday.

You may recall that the Heyday case challenged Regulation 30 of the Employment Equality (Age) Regulations 2006, which allows an exception to age discrimination in the case of retirement. It was argued that that is incompatible with the Equal Treatment Framework Directive, the EU directive that led to the UK Regulations.

As we go to print the Advocate General has handed down his decision. He recommends that the ECJ dismisses Age Concern?s challenges to the lawfulness of Regulations 3 and 30 of the Employment Equality (Age Discrimination Regulations 2006.

The ECJ normally follows the Advocate General?s recommendations . . . . more to follow in future Briefings

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Jobs Direct?

In July 2008, the ECJ overruled previous case law and found that discriminatory job adverts were direct discrimination.

In the case of Centrum Voor Gelijkheid van Kansen en Voor Racismebestrijding v Frima Feryn, an employer advertised for staff stating that they did not employ immigrants because its clients did not like immigrants.

Prior to the July 2008 ruling, individuals could not bring a claim in relation to a job advert because that would have been outwith the remit of the discrimination legislation. However, following this decision, individuals do have the right, it would appear, to bring claims.

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Religious Confusion

The right to believe what you want, to live your life in accordance with your beliefs and have protection against discrimination are, in many people?s eyes, some of the most important rights in society. However, as can be seen in the following two cases, it is often difficult to balance these rights with rights of others.

In Ladele v London Borough of Islington it was held that a Christian registrar had been discriminated against on the grounds of her faith. She had asked to be excused from officiating at same sex civil partnerships, but was told that if she did not do so she would be dismissed. Her employers called her ?homophobic?. The Tribunal held that Ms Ladele had been discriminated against and that her employment environment amounted to one that was ?intimidating, hostile, degrading, humiliating and offensive?.

In a second case, a Christian charity could not justify a ?Christian Only? employment policy, as they could not show a ?genuine occupational requirement?, for limiting such appointments. As much of the work they did was secular, the Tribunal held that they could not limit employees to Christians.

This is a very difficult area and, as can be seen, much turns on the facts that surround each individual claim. Minority groupings are now protected under law and you may wish to seek advice on managing what can be sensitive issues.

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Right To Request Flexible Working

The Government has launched a consultation to extend and revamp the rights of employees to request flexible working. The consultation will cover:

  Extending the right to parents with children under 16 (it is currently under 6)

  Methods of raising awareness of the right to request flexible working; and

  * Methods of making it easier for employers to deal with requests.

As always, we will keep you updated with any developments.

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WJM Employment Club

Our next meeting will be taking place on the 8th October in our Glasgow office. We meet at 5.15pm to start promptly at 5.30pm. As we plan this next session, we would really appreciate your thoughts. If you have any issues that you would like addressed on the night please let us know. Email topics or questions to .(JavaScript must be enabled to view this email address).

The last meeting of 2008 will be held on the 10th December in our Glasgow office.

If you would like to attend the October meeting, please contact Emma McNeil by email to .(JavaScript must be enabled to view this email address) or by telephone on 0141 223 7280.

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And Finally. . .

As mentioned in our last briefing, the Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008 came into effect in July. They will benefit mothers whose expected week of childbirth is on or after 5th October 2008. They remove the distinction between employment rights during Ordinary maternity leave and Additional maternity leave.

For more information on how maternity leave and maternity pay is best handled, please contact Julia McDonald, our in-house HR specialist.

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Would you like this Briefing by email?

We strive constantly to improve the services we provide. If you would prefer to receive this Briefing by email please let us know on .(JavaScript must be enabled to view this email address)

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Further Information

For further information on these or any other employment issues please contact:

Martin Stephen .(JavaScript must be enabled to view this email address) 0141 248 3434

Andrew Wilson .(JavaScript must be enabled to view this email address) 0131 221 5560

Liam Entwistle .(JavaScript must be enabled to view this email address). 0141 248 3434

For information on our HR Services please contact:

Julia MacDonald .(JavaScript must be enabled to view this email address) 0141 248 3434

For information on Praesidium Employment Law Protection please contact:

Martin Stephen .(JavaScript must be enabled to view this email address) 0141 248 3434

Employment Firm of the Year 2008
The Law Awards of Scotland

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