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June 2017 Newsletter - Rights to be Accompanied to a disciplinary

Posted on Friday 9th Jun 2017

Right to be Accompanied

It is well known that an employee facing disciplinary action has the right to be accompanied at a disciplinary meeting. In a recent case the courts have confirmed that an employee has a practically unfettered right to choose his or her companion so long as that companion is a certified trade union official or officer or a colleague: no matter how unsuitable the employer regards that companion to be.

Mr. Gnahoua was a bus driver employed by Abellio London Ltd. Following a disciplinary process, he was dismissed for gross misconduct. He asked to be accompanied by one of two brothers, either Mr. Francis Neckles or Mr. John Neckles, both of whom were union officials and thus qualified to act as companions. However, one brother had been dismissed by Abellio for intimidating and harassing another employee; had brought a claim against Abellio, and had been represented at the tribunal by his brother. Not only were his claims struck out on the grounds of vexatious conduct, but the judge, having found that the brothers had falsified the date of a witness statement, took the unusual step of awarding £10,000 in costs against both brothers for vexatious conduct. Unsurprisingly, Abellio had a policy of refusing to allow these representatives to accompany employees at disciplinary or grievance meetings

When Mr. Gnahoua presented his claims against Abellio to an employment tribunal, including claims for  unfair dismissal and race discrimination, they were largely struck out but the tribunal agreed that his right to be accompanied had been breached. However, it did not consider that Mr. Gnahoua had suffered any loss or detriment from having been unaccompanied at the disciplinary meeting. The tribunal therefore awarded the nominal sum of £2 for breach of the right to be accompanied. Despite this decision Abellio might consider that its stance was worth it.

 

Government responds to ‘high heels’ petition

The government has responded to the report recommendations on ‘high heels and workplace dress codes’. The House of Commons Petitions Committee and Women and Equalities Committee (WESC) report on high heels and workplace dress codes was published on 25 January 2017, following an inquiry by the former Committee into Nicola Thorp’s petition ‘Make it illegal for a company to require women to wear high heels at work’  which closed in November 2016, having attracted 152,420 signatures.

The government states that the Government Equalities Office will be producing guidance on dress codes in the workplace and will work closely with Acas, the EHRC and the HSE to raise awareness. It intends to publish guidance in the summer of 2017. With regard to discrimination compensation guidelines, the government considers these to be proportionate.

 

Overtime and Holiday Pay

Nothing in the case of Fulton and another v Bear Scotland Ltd (No 2) UKEATS/0010/ affects the employer’s obligation to take non-guaranteed overtime into account in calculating holiday pay. However in this case, the EAT confirmed that, where there is a three month gap between incidents of underpayment/non-payment of holiday pay, claims will be out of time.

In a well publicised case, Mr. Fulton and Mr. Baxter had successfully claimed that overtime payments and other regular payments had been wrongly excluded from the calculation of their holiday pay by their employer Bear Scotland Ltd. The case was remitted to the employment tribunal to decide on which of the claims had been made in time. The claimants argued that the EAT's decision, that a three month gap between deductions breaks any series, was not binding. The tribunal rejected their arguments, and found that the majority of their claims were out of time, as the amounts claimed did not, for the most part, amount to an unbroken series of deductions, the underpayments having been interspersed with periods of at least three months during which no deductions occurred.

Mr. Fulton and Mr. Baxter appealed to the EAT, and the EAT dismissed the appeal.

Combined with legislation introducing a two year stop period for most unlawful deductions from wages claims brought on or after 1 July 2015, this confirms the significant limitation on historical liability for underpaid holiday.

 

Fine for breach of auto-enrolment duties

The consequences of failing to comply with auto-enrolment obligations are illustrated by the action taken against Johnsons’ shoe company. Johnsons failed to satisfy The Pensions Regulator (TPR) that it had complied with its staging date and then failed to complete the declaration of compliance by an agreed date.  In November last year, TPR issued the firm with an escalating penalty notice (EPN) which took effect on 8 December. The EPN meant the firm built up a fine of £2,500 per day until 23 December, when it submitted its declaration of compliance and agreed to backdate contributions.

The fine by this point totalled £40,000, but the firm refused to pay it, causing TPR to lodge a claim with the county court on 5 January 2017. However, before a court hearing was held, Johnsons paid the fine as well as, presumably, statutory interest. That’s a lot of employer contributions.

 

Criminal Records Disclosure

The Court of Appeal has held that the statutory criminal record disclosure scheme, which was revised following a previous Court of Appeal ruling that it breached Article 8 of the European Convention on Human Rights, remains non-compliant in some respects. Rules requiring that multiple convictions and certain offences designated as particularly serious must always be disclosed are not ‘in accordance with the law’, as required by Article 8(2), because they pose a risk of  arbitrary interference with the right to a private life. Furthermore, in the absence of some mechanism to ensure that disclosure is proportionate and linked to the protection of the public, disclosure in individual cases may not meet the Article 8(2) test of being ‘necessary in a democratic society’.

 

Beards and RPE

The maintenance contractor Mears Group decision to implement an outright ban on beards over concerns about fitting face masks was widely reported in among other places The Mirror, The Guardian and TV news outlets. The employees concerned worked on tasks including general maintenance and repairs and refurbishment of void council properties.

The company’s reason for the rule was that its operatives work in a potentially dusty environment and need to come to work clean shaven in order for face masks to be effective.

The company’s position is understandable. Any facial hair can break the seal that is necessary to provide effective protection. Anything that interferes with the mask fitting properly creates a problem.

First principles, however, require that reductions to the amount of inhalable and respirable be made by, for example, wet methods, local exhaust ventilation or other engineering controls. If RPE is still required, which sometimes can only be determined by analytical methods; then suitable RPE must be selected.

Some RPE, such as fan powered, battery operated loose fitting hoods, helmets and visors, which blow clean air across the face, under positive pressure may need to be used in certain circumstances. These still need to be close fitting. The HSE website developed in partnership with Healthy Working Lives Scotland, http://www.healthyworkinglives.com/rpe-selector, provides an RPE selector.

 So, was Mears Group correct to impose the ban? It is well known that, in crude terms, H&S considerations outweigh employment law rights. For example, an employee who cannot wear latex gloves, due to an allergic reaction, where the risk assessment absolutely requires that this is the only suitable PPE, could be dismissed for being unable to wear them. However, all cases turn on their own facts and there is also the question of discrimination. Sikhs do not cut, pluck or shave their hair and The Equality Act imposes a duty to consider the needs of people with different religious beliefs when designing and delivering services. As is often the case there are no easy answers. Please contact our helpline if you are faced with these sorts of issues.

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