Employment Update - June 2010

News and Developments

Vetting and barring scheme halted

The government has announced that registration with the Vetting and Barring Scheme (VBS) will be halted to allow remodeling of the scheme. The scheme will be changed  to "proportionate, common sense levels".

The aim of the VBS is to protect children and vulnerable adults by preventing those who pose a known risk from working with them.

Voluntary registration with the VBS for new employees working or volunteering with children and vulnerable adults was due to start on 26 July, but has now been halted.

The government has said that it recognises that many businesses, community groups and individuals see the VBS as disproportionate and overly burdensome, and that it unduly infringes on civil liberties.

We are told that the extent of the remodelling is currently being finalised and will be announced shortly.

In the meantime, the following aspects of the VBS, which came into effect in October last year, remain in place:

• It is a criminal offence for barred individuals to apply to work with children or vulnerable adults in a wider range of posts than previously. Employers also face criminal sanctions for knowingly employing a barred individual across a wider range of work;
• The three previous barring lists (POVA, POCA and List 99) are replaced by the creation of two new barred lists administered by the Independent Safeguarding Authority (ISA) rather than several government departments. Checks of these two lists can be made as part of an Enhanced CRB check;
• Additional jobs and voluntary positions are covered by the barring arrangements, including moderators of children's internet chat rooms, and a large number of NHS staff; and
• Employers, local authorities, professional regulators and inspection bodies have a duty to refer information to the ISA on an individual working with the vulnerable where they consider them to have caused harm or pose a risk.

Existing requirements concerning Criminal Records Bureau checks will also remain in place.

Fake "fit notes" sold online

Fake fit notes are sold online for £9.99. The website says that the notes are for novelty use only, but goes on to say that they are "authentic looking replica doctors sick note or medical certificate. Written on official doctors notepaper, with real stamp."

http://www.doctorsnotestore.com promises guaranteed 48 hour delivery of the fake fit notes, and employees can choose to have them stamped by doctors at medical centres in any UK area.

There is some concern Employees could try to use the fake fit notes to claim sick pay in a fraudulent way, especially while employers are still getting used to the new forms.

Employers should ensure that employees provide genuine fit notes. If there is any doubt, the employer could call the medical centre to check whether the fit note is genuine. It could also ask the employee to attend an appointment with another GP or occupational health adviser appointed by the employer.

In addition, employers can take disciplinary action against any employee who provides a fake fit note.

The World Cup and other sporting events

The World Cup has finally kicked off and, whilst a month long feast of football will delight fans, as with other major sporting events, it has the potential to cause headaches for employers. Employers would be wise to consider how they are going to deal with major sporting events to avoid an ad hoc approach. They also need to be aware of TV licensing rules or risk financial penalties.
 
As the competition progresses employers of all sizes may see an increase in last minute requests for time off, or unauthorised absences, to watch matches or to recover from post-match hangovers. Employers may also see an increase in staff using the internet during working hours to monitor matches.

Employers must decide how much flexibility to offer staff during this time, taking into account the needs of the business. Employers could consider allowing staff flexibility in the time they start or finish work on certain match days, granting unpaid leave, allowing staff to take longer breaks, making time up later, or playing matches on a communal television or radio in the workplace.

In any event, employers should communicate to staff how they will deal with staff who either phone in sick on match days or post-match days, or simply do not turn up for work at all.  In those circumstances, employers should consider issuing a note with some or all of the following points, reminding staff:

• Of any special arrangements for flexibility during the tournament;
• That holiday requests will be considered on a "first come, first served" basis, with no guarantee that requests will be granted;
• That they could face disciplinary action if they take time off work to watch matches in circumstances where a holiday request has been refused;
• Of any absence policy and, if appropriate, rules in relation to use of the internet;
• That anyone who phones in sick on a match day or post-match day will be required to provide medical evidence, such as a doctor's certificate.  Do, however, be aware that you will have to bear the cost of a doctor's certificate where the absence lasts for less than 7 days; and
• That you will hold "return to work" interviews if there are suspicions that any sickness absence is not genuine, or is being abused.

It is worth noting that employers should not assume that all fans are male and that everyone supports England. Only providing flexibility for England matches could risk race discrimination claims. Whatever approach is taken, it is important for employers to be fair and consistent.

Finally, employers need to be aware that, if they do allow staff to watch matches at work, they require a TV licence to do so, even for matches that are being streamed online.

Case Law

Without Prejudice Communications

The Employment Appeal Tribunal (EAT) has confirmed that the exception to the without prejudice rule should be construed narrowly, even in a discrimination case.

The without prejudice rule will generally prevent statements made as part of negotiations in an attempt to settle a dispute from being used in evidence in subsequent tribunal proceedings.

The exception to the rule is where the exclusion of any evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety.

Facts

Mrs Woodward was dismissed by her employer, Santander plc. She brought proceedings for unfair dismissal and sex discrimination. The proceedings were settled, but the terms of the settlement did not include an agreed reference. Mrs Woodward was not particularly successful in securing new employment. When she applied for new jobs, she gave Santander as a referee.

Mrs Woodward suspected that Santander had provided bad references and wrote to the Chair of Santander to complain, as well as ask for a job with Santander. She did not receive a reply to her letter and when she wrote again she was told that there was no suitable position for her. She brought fresh proceedings against Santander, including victimisation and sex discrimination.

Mrs Woodward sought to refer to matters that took place during the without prejudice negotiations relating to the first claim - that she had requested a reference as part of the settlement and that Santander had refused to agree to this. She submitted that Santander had reprisals in mind from the time of the negotiations.

Decision

The Tribunal had already accepted as a matter of fact that Mrs Woodward's first letter had been mislaid and that there was nothing unusual in the way in which her speculative application for employment had been dealt with.

The EAT held that Mrs Woodward was not entitled to introduce evidence of the earlier without prejudice negotiations. The without prejudice rule was engaged in this case, as Mrs Woodward's request for a reference occurred during negotiations entered into between the parties with a view to settling litigation. The exception did not apply to this case. Mrs Woodward had suspected impropriety, but had no evidence of it and that was not enough.

Comment

The EAT stressed the public policy reasons for applying the without prejudice rule. Parties should not be discouraged from settling their disputes by fearing that the other party could "comb through the content of correspondence and discussions…in order to point to equivocal words or actions in support of…an inference of discrimination".

It appears that the threshold to establish impropriety, so as to be able to rely on without prejudice communications, is as high in discrimination cases as it is in any other type of case.

"Putting up with it does not make it welcome"

Waitresses who put up with years of sexual harassment from their boss have won claims for sexual harassment and constructive unfair dismissal.

Facts

In Munckins Restaurants Ltd v Karmazyn, waitresses from Europe claimed that for years they had been subject to persistent unwanted sexual harassment by their boss, and that they had then resigned in response to that conduct. The employees all resigned shortly after a Miss Guillery, the Assistant Manager, left her employment. The employees won their claims for sexual harassment and constructive unfair dismissal in the Employment Tribunal.

The boss said that the employees had participated in and even been known to initiate conversations with the boss about his love life. The employer therefore said that the boss's conduct had not been unwelcome. It also said that the waitresses had accepted the boss' conduct by continuing to work for the employer. The employer appealed to the Employment Appeal Tribunal (the EAT).

Decision

The EAT upheld the Tribunal's decision. It was found that when the employees sometimes initiated conversations about the boss's love life, they did so as a defensive tactic, to divert him from intrusive questioning about their own sex life and sexual preferences.

The EAT also agreed with the Tribunal's view that the waitresses were migrant workers with no certainty of continued employment, save at Munchkins, and that there were considerations of convenience: that they were constrained by financial and, in some cases, parental pressure; that they had the fear that they might not obtain other work; that they had the comfort of Miss Guillery acting as a cushion until she left, and that the employees managed, therefore, to find a balance between conduct that was unwelcome and unlawful and the advantages that their job gave them.

The length of time that the employees had put up with the boss' behaviour was not fatal to their claims. As a lay member of the Tribunal had pointed out, the EAT agreed that there were "many situations in life where people will put up with unwanted or even criminal conduct which violates their personal dignity because they are constrained by social circumstances to do so".  Putting up with the conduct did not make it welcome.

Comment

This case highlights the fact that sexual harassment and similar claims do not fail simply because employees put up with the conduct for a long time, or are perceived to participate in it.

Employers should be aware that using "the office banter defence" to defend claims for sexual harassment is unlikely to succeed.

Legislation

The Equality Act 2010 - changes to timetable?

The provisions in the Equality Act will come into force at different times to allow time for employers to prepare for them. The Government is currently considering how the different provisions will be commenced so that the Act is implemented in an effective and proportionate way. This means that there may be a change in the timetable previously announced.

However, until any potential changes are announced, we are told that the Government Equalities Office continues to work on the basis of the previously announced timetable, which envisaged commencement of the Act's core provisions in October 2010.

Please refer to our April 2010 http://www.ashfords.co.uk/news/employment_update_april10 update for more information about the Equality Act 2010.

New Health & Safety Laws?

The new Prime Minister has appointed Lord Young to investigate concerns over the “application and perception” of health and safety legislation, together with the “rise of the compensation culture over the last decade.”

One suggestion Lord Young appears to be examining is to remove the requirement to follow health and safety laws in relatively safe environments like offices.

We could see a proposed overhaul of health and safety laws, with Lord Young saying that he wants to put “common sense back into health and safety” rules.

In addition, the Prime Minister has said that "we need a sensible new approach that makes clear these [health and safety] laws are intended to protect people, not overwhelm businesses with red tape".

It is expected that Lord Young's report will be finalised during the summer.

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