Www.clarionsolicitors.com DIGNITY AT WORK: An Examination of Case Law Joanna Dodd 26 February 2015

www.clarionsolicitors.com

DIGNITY AT WORK:

An Examination of Case Law

Joanna Dodd

26 February 2015


DIGNITY AT WORK

Avoiding discrimination

Supporting Staff Preventing

bullying and harassment

Creating a culture of

mutual respect

Having fair employment

practices

Safeguarding vulnerable

staff

Promoting the health and well-

being of workers


Examination of recent case law.

Consideration of learning points for inclusion in policies and procedures.

Case study on managing absence.

Advice on safeguarding dignity at work.

Question and answer session.

Agenda


Munchkins Restaurant Ltd and another v Karmazyn and others UKEAT/0359/09

• If an employee puts up with conduct for years and even initiates ‘banter’ of a sexual nature, is the conduct still ‘unwanted’?

Harassment


Told to wear short skirts

Regularly asked

questions about their sex lives

Sometimes asked M similar

questions to divert

attention

No equal opportunities policy

No policy banning

harassment/bullying


Claims succeeded.

R and M jointly and severally liable.

Waitresses were migrant works, no certainty of employment, under financial pressure.

Non-objection could be fearful suffering. Does not mean conduct unwanted.

Judgment


• Caspersz v Ministry of Defence Ms Casperz worked for M.

M made sexist comments about Ms C.

Ms C made complaints about M’s general management style but did not mention sexist comments.

16 months later Ms C made a further complaint which did mention sexist comments.

MOD suspended M and investigated. M was then dismissed.

Ms C brought claims of sex discrimination.

‘Reasonably Practical Steps’ Defence


• Claims dismissed. MOD had done everything reasonably practicably to prevent harassment.

A Dignity at Work policy.

Investigated as soon as aware.

Witnesses to show how seriously took allegations of breach of policy.

Judgment


Ensure you have a Dignity at Work policy which states harassment will not be tolerated and that employees have a right to complain.

Take action for any breaches of policy.

Investigate complaints immediately.

Learning Points


vs

Are comments/tweets public?

Can an employer fairly dismiss for non work-related comments on social media?

Social Media


Game Retail Ltd v LawsUKEAT/0188/14 3 Nov 2014

300 stores which each have Twitter feed.

Mr Laws, Risk and Loss Prevention Investigator, responsible for 100 stores.

Personal Twitter account.

Followed 100 stores, 65 followed him back.

Did not mention worked for Game Retail.

28 offensive tweets (expletive and obscene language).

Dismissed for gross misconduct.


• Dismissal was fair.• Personal Twitter account not private-usage.• Do not need to show tweets actually had caused

offence – enough that they might have.• No requirement for derogatory comment to relate to

Game Retail.

Judgment


Specific social media policy

Remind employees to create separate personal and work-related Twitter accounts

Be explicit about expectations

Set out sanctions

Learning Points



See separate sheet in packs

Managing Sickness Absence


3 Recent Cases

1.HMRC v Whiteley UKEAT/0581/12- employers do not have to discount all disability-related absence.

2.Doran v DWP UKEAT/0017/14- duty to make reasonable adjustments not generally triggered when no return date.

3.General Dynamics Information Technology v Carranza UKEAT/0107/14

- disregarding a final written warning is not an adjustment

Long-Term Sickness and Reasonable Adjustments


Be clear about trigger points.

Include flexibility regarding disability-related/pregnancy-related absence.

Ensure contractual obligation to submit to a medical examination

Learning Points

Sickness Absence Procedure


• Burdett v. Aviva Employment Services Ltd UKEAT/0439/13

• Mr B suffered from paranoid schizophrenia. Required antidepressant and antipyschotic medication.

• In 2008 received a police caution for sexual assault. Did not disclose to Aviva.

• In 2011 stopped taking medication. Sexually assaulted two female colleagues and threatened to assault another.

• Criminal charges – pleaded guilty.

• Dismissed for gross misconduct.

Misconduct Dismissals


ET found dismissal unfair. Overturned and remitted.

Aviva did not have reasonable grounds for its belief that Mr B had committed gross misconduct.

Admission of guilt is not admission of gross misconduct.

Latter requires culpability.

Consider mitigating circumstances.

Judgment


Ensure you have policies and procedures in place which are relevant to your business.

Act quickly on complaints.

Train managers.

Set up clear communication channels.

Safeguarding Dignity at Work


Any Questions?


Contact Details

• Joanna DoddSenior Associate

Direct Dial: 0113 336 3318Direct Fax: 0113 246 7488Mobile: 07785 468 402Email: [email protected]: Elizabeth House, 13-19 Queen Street, Leeds, LS1 2TWWebsite: www.clarionsolicitors.com

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Documents

Www.clarionsolicitors.com DIGNITY AT WORK: An Examination of Case Law Joanna Dodd 26 February 2015