Welcome
The Winter is proving to be somewhat controversial, insofar as its accepted title for posterity is concerned. It started just before Christmas as a “cold snap” but quickly graduated, after New Year, to something far more important sounding. It’s been described variously as “The Siberian Winter”, “The White Out” and, most popular of all, “The Big Freeze”.
With Winter still going on around us for the next month or so (you probably don’t need reminding of that), we start with some advice for employers on dealing with the situation where employees fail to get into work for snow/ice related reasons:-
Let it snow, let it snow, let it snow
When there is snow and ice about, treacherous roads, disrupted public transport and school closures can mean that staff are unable to get into work. Tricky legal and practical difficulties arise for employers: must staff be paid for ‘snow days’, and do parents have a right to time off as a result of school closures?
Payment for snow days
If the employer closes the business, employees will be entitled to receive full pay, unless their employment contracts contain a clause allowing them to be laid off without pay.
However, where the business remains open, unless the employment contract provides for paid time off in bad weather, the employer only has to pay employees who are willing and able to do work. If an employee fails to get to work, the employer is under no legal obligation to pay them.
That said, employers would be wise to bear in mind the negative impact on staff morale that such an approach might cause. And where official advice is to avoid all non-essential travel, employers would be wise not to put unreasonable pressure on employees to get into work.
Possible alternatives are to allow staff to work from home, where they are able to. Employees could also be requested (but not forced) to take holiday leave as an option, or they could be paid on the condition that they make up the lost time at a later date.
Parents caught by school closures
Every employee has the right to take unpaid leave to care for dependents, which would extend to a reasonable amount of time off work to enable them to put in place child care arrangements to deal with unplanned school closures.
Religious or philosophical belief – spirituality
Police trainer Alan Power claimed that the Greater Manchester Police had discriminated against him, by dismissing him because of his belief that psychics can help solve criminal investigations. At an initial hearing, it was decided that spirituality could be seen as a faith and therefore amount to a religious belief, because it has "sufficient cogency, seriousness, cohesion and importance to fall into the category of a philosophical belief" for the purposes of the regulations.
However, at the final hearing he failed to convince the Employment Tribunal that he had been dismissed because of his psychic beliefs. This was despite the force citing his "current work in the psychic field" as a reason for the dismissal. The Tribunal accepted that Mr Power, referred to as a "ghostbuster" by the force, had been dismissed for other reasons.
Notably, the force was informed by a former employer that Mr Power had become inappropriately animated during a training session, in which he was playing the part of a shoplifter, when a female colleague frisked him. He was also accused of disseminating inappropriate research materials featuring the World Trade Centre attacks. He denied these allegations.
In short, theTribunal found that, although the Claimant's belief was a philosophical belief, the Respondent's actions were clearly not related to those beliefs but to the way in which he had previously conducted himself.
Employee's conduct contributed to dismissal - 100% reduction in compensation
The case of Kristapaitis v Thistle Seafood Ltd is a good example of how an Employment Tribunal can help an employer which has failed to follow the correct dismissal procedure, as a result of which the dismissal was unfair, where it is clear that dismissal would have taken place even if the correct procedure had been followed. The Employment Appeal Tribunal dismissed Mr Kristapaitis' appeal against an employment tribunal's decision not to award him any compensation after finding his dismissal automatically unfair, under the (now obsolete) statutory dismissal procedure.
Mr K, who was employed in the fish processing business, was dismissed when his hands were found to be heavily contaminated with e-coli bacteria, from which his employers inferred that he had not washed his hands properly after going to the toilet, despite factory rules and a prior warning. The EAT upheld the Tribunal's decision to make a 100% reduction in compensation, because of the extent to which the claimant had contributed to his own dismissal.
Bullying in the workplace
In the case of Veakins v Kier Islington Ltd, a trainee electrician was constantly picked on by her supervisor. She was a usually robust woman who had been victimised and demoralised by her supervisor and became clinically depressed and eventually left her job. She brought a claim in the County Court against her employer under the Protection from Harassment Act 1979. Her claim failed, on the basis that the conduct was not so bad that a criminal prosecution could have been brought.
She successfully appealed to the Court of Appeal, which held that the correct test was not whether the conduct was criminal, but whether it was "oppressive and unacceptable". The level of victimisation in this case was over a relatively short period and easily satisfied the test. The Court of Appeal said, however, that it did not expect that many workplace cases will give rise to liability under the Harassment Act and that the Employment Tribunal will more fittingly provide the remedy for the great majority of cases of high-handed and discriminatory conduct.
Dress codes
In the case of Dansie v The Commissioner of Police for the Metropolis, the Employment Appeal Tribunal has confirmed that employers may adopt a dress code requiring conventional appearance with differing requirements for men and women. However, this is only acceptable if it requires compliance with differing requirements in the same way for both genders.
In this case, before attending basic training, a male trainee police officer asked whether wearing his long hair in a bun would comply with the Met’s dress code. The code required recruits to wear hair above the collar or, if long, fastened close to the head. He was initially told that it would but, when he started training, he was told to get his hair cut. He subsequently made a claim of sex discrimination.
The EAT held that the dress code, looked at as a whole, was balanced in the way it treated the sexes. There had been no less favourable treatment, because a woman would also have been required to comply with the code, as it affected her in the same way as compliance with the code affected him.
And Finally…
We always like to keep an eye on new office slang as it develops and Office Angels have recently reported on new nonsense that is creeping into the workplace. Apparently, staff are complaining about feeling "stressurised”, which is a mixture of pressure and stress. “Let's touch base about this offline” is a lengthy and nausea-inducing alternative to “let's meet up”.
Those are obviously just irritating phrases, but there are some which are a little more ambiguous (and frankly disturbing), such as “I'm coming into this with an open kimono”. If you hear someone saying this, it is not some sort of forewarning of harassment, but rather that the person is introducing an idea but is open to criticism.
Finally, what do you make of “let's not try to build a chestnut fence to keep the sand-dunes in”? Yes, well your guess is as good as ours – it could well be just a simple (if obscure) piece of practical advice…
|
