Parental and Family Rights in an Increasingly Conscious World

Thursday 26th September 2019, 17:00 – 19:00 @ Pannone Corporate, Manchester  Register here

Join us at this evening session for a roundup of case law and legislative framework developments in this interesting area. We will look at the rights of parents, including maternity leave, adoption, shared parental leave, and part-time and flexible working. We will also consider the future, with parental bereavement leave coming in 2020 and the government’s plans to extend redundancy protection for those returning to work after maternity leave.

Speaker

Caroline Jennings – No5 Barristers’ Chambers

Caroline is ranked for employment law in both Chambers and Partners and Legal 500. One entry describes her as “Very sensible and very approachable. She does not overcomplicate issues and makes my life as a solicitor easier” another notes that she is “Tough, bold, charming and up for a challenge”.

Register here

 

Employment and Regulatory Cross-Over Seminar and Social

Come along to learn more about when the regulatory and employment worlds combine and overlap, with particular regard to the two spheres of the health sector and the education sector.  This seminar will provide an interactive and informative overview of these two areas, hosted by a No5 Regulatory specialist in health and education.

The seminar will be followed by summer food and drinks from 19:00 onwards.

Date: Wednesday 26th June 2019
Venue: Slater and Gordon, Manchester
Time: Registration – 17:00; Seminar 17:30- 19:30
Cost: Free of Charge
Learning Hours: 1.5 hours

Speakers

Chris Hopkins, No5 Barristers’ Chambers
Chris is a specialist regulatory and misconduct barrister who regularly defends professionals both in the criminal courts and in disciplinary proceedings before their regulator. He has been instructed on behalf of police, legal, medical and teaching professionals and most recently successfully defended a pharmacist at trial in the Crown Court charged with unlawfully administering a noxious substance to a work colleague.

Register here

Workplace Investigations

If you have ever had to deal with a workplace complaint, you will know the problems and pitfalls with conducting internal investigations.

Join us at our investigation’s seminar for advice on the three main forms of investigations: grievances, disciplinaries and whistleblowing.  Our investigations expert will give you their top ten tips for conducting successful investigations.

Breakfast and refreshments will be provided before the seminar.

Date: Thursday 14th March 2019
Venue: Slater and Gordon, Manchester
Time: 08:00 – 10:00
Cost: Free of Charge
CPD: 1 hour

Speaker

Mugni Islam-Choudhury
Mugni is an experienced employment law specialist who has conducted employment-related hearings in the ET, EAT and civil courts for 20 years. He is a specialist in complex employment litigation and has particular interest and expertise in dealing with high value claims, particularly in the field of discrimination, whistleblowing and/or where there is a High Court connection. Recently, Mugni has been appointed as investigator in a number of whistleblowing complaints and grievances.

Register here

Redundancy Seminar and Curry Night!

Redundancy and curry night – an unusual but satisfying combination!

NWELG are looking to combine a practical learning experience, with an opportunity to meet, relax and chat with fellow employment law enthusiasts over some wonderful food at Akbars curry house.

Redundancy is an area that often comes up in practice and can be more complicated than it first appears.  Join us for an evening of insight, fun and connections.

Redundancy Seminar

Date: Tuesday 30th October
Venue: DWF, Manchester
Time: 17:00 – 18:30
Cost: Free of Charge
CPD: 1 hour

Curry Night

Date: Tuesday 30th October
Venue: Akbars, Manchester
Time: 18:45 onwards
Cost: £20 + VAT pp

Register here

*During registration you will have the choice to register to attend the seminar, the curry evening, or both.

All bookings are bound by our terms and conditions.

 

Disability Discrimination Seminar – A Practical Guide

Disability discrimination can be an often misunderstood area. NWELG are hosting an event to unravel some of the myths and pitfalls of handling disability discrimination complaints. The session will be a practical and interactive one lead by experts in the field.

Wednesday 26th September @ Kelloggs, Manchester

Location: Kelloggs, Orange Tower, Media City UK, Manchester, M50 2HF

Register here

Programme

08:45 – 09:15 Registration

09:15 – 09:45 Top tips on handling disability discrimination complaints, presented by Alexander Mellis

09:45 – 11:00 Workshop: An opportunity to discuss, explore and apply the principles behind disability discrimination in practice, presented by Helen Barney

Speakers

Helen Barney – Helen is a modern, approachable barrister who is renowned for her excellent client-care skills and working in partnership with those that instruct her. She is well adept at explaining complex legal arguments in simple plain language and brings to every claim sound case management and tactical awareness.

Alexander Mellis – Alex has a mixed practice in employment and personal injury law. He can be found in court or tribunal on a near daily basis undertaking both interim and final hearings as well as having a busy paperwork practice.

Register here

Thanks to all who joined for Sexual Harassment seminar!

Thanks to everyone who joined us for the Sexual Harassment seminar last week at HRC Law LLP in Manchester.  It was great to meet everyone and we hope you found Tom Perry and Jack Feeny’s (from No5 Barristers’ Chambers) update on Sexual Harassment in the Workplace informative; and also found their workshop useful.

See you at the next event!  If you’d like to join the NWELG committee to help shape future events, email hello@nwelg.co.uk

Procedure: Interim Relief

When considering the postponement of an interim relief hearing, can counsel’s availability amount to “special circumstances”?

Yes, held the EAT in Lunn v Aston Derby.

Interim relief is obscure. It’s a special remedy that employment tribunals can grant if an ET1 is presented within seven days of dismissal, and the Claimant can prove (at a very swiftly arranged hearing, usually within days) that s/he will probably establish that the dismissal was on grounds of whistleblowing or trade union activities at a full hearing. When interim relief is granted, a ‘continuation of employment’ order is made, meaning they are guaranteed their salary up until the final hearing – even if they ultimately lose.

Mr and Mrs Lunn pursued whistleblowing claims and included applications for interim relief in their ET1s.

The interim relief applications were listed for hearing on a date the Claimants’ direct access barrister could not attend due to prior court commitments. Their barrister requested that the hearing be relisted and provided dates of availability as soon as five days later.

Pursuant to s128(5) Employment Rights Act 1996, the tribunal should not postpone such hearings “except where it is satisfied that special circumstances exist which justify it in doing so”. The tribunal refused the Claimants’ application for postponement on the basis that counsel’s convenience did not amount to special circumstances.

The EAT disagreed and held that, although not usually considered as such, counsel’s availability was a special circumstance in this case as the Claimants were faced with a real difficulty of finding alternative representation at such short notice. The special circumstances did not have to be ‘exceptional’.

The EAT found that the tribunal had fettered its discretion. It went further and found perversity on the basis that there was a lack of prejudice to the Respondents, a very short delay and the interests of justice so overwhelmingly fell in favour of granting the application.

Case Summary by Caroline Jennings.

Caroline is part of the Employment Group at No5 Barristers’ Chambers. 

Sexual Harassment in the Workplace Seminar

Following the recent Harvey Weinstein allegations and the #MeToo campaign, sexual harassment is clearly a problem in the workplace.  In the current heightened climate of sexual harassment cases being brought to the fore, come and receive an update as to the legal employment position in this area. Two specialist employment barristers will provide their perspectives in this area with a combination of lectures and workshops, where attendees will be able to apply their acquired knowledge.

Thursday 14 June @ HRC Law, Manchester

Location: HRC Law LLP, Acresfield, 8-10 Exchange Street, Manchester, M2 7 HA  – how to find us

Register here

Programme

08:45 Registration

09:15 – 10:15 Update on Sexual Harassment

Overview of the law in an employment context – Presented by Jack Feeny
Practical considerations for employers – Presented by Tom Perry

10:15 – 10:30 Break

10:30– 11:45 Sexual Harassment Workshop

An engaging and entertaining workshop to develop your acquired knowledge on harassment.
Presented by Jack Feeny & Tom Perry

11:45 Coffee & networking

Speakers


Jack Feeny has been ranked as a leader in the field of employment law by Chambers & Partners since 2016. The directory this year conveys “His strength is his technical ability in difficult situations”.


Tom Perry is an experienced lawyer who acts on behalf of both claimants and respondents in the employment tribunal at both preliminary and final hearings. Before joining the Bar, Tom worked as an employment solicitor for 7 years at Withers, Paul Hastings and Allen & Overy.

Register here

Equal pay: As the BBC, Deloitte and other employers face criticism over their gender pay gap figures, how does the law protect equality of employment terms?

The full-time gender-pay gap has been decreasing since 1975, however there is still at 16% difference between men and women’s pay according to the Equal Pay Code of Practice.

This April sees the first deadline by which employers with over 250 employees must publish figures annually, showing the gender pay gap in their workplace.  This requirement is hoped to encourage an ethos of transparency within the work place, and a focus on corporate values regarding equality.

As a result of these reporting duties, employers and employees are more aware than ever of issues around pay.  This article sets out a brief summary of how to seek remedy for unequal pay in the Employment Tribunals: reference is made to a female claimant for ease of reference, however the legislation protects both men and women.

Types of claims

All employees have a right to equal pay.  There are however three routes by which a claim can be brought under the Equality Act 2010 (“EqA”).  A difference in pay will potentially be discriminatory unless the employer can make out a valid defence:

  1. A “Like Work” claim (s65(1)(a), (2), (3) EqA)– where a woman does the same or broadly similar job as a male colleague but is paid less.
  2. A “Rated as Equivalent” claim (s65(1)(b), (4) EqA) – where a woman doing a different job to her male comparator is doing work “rated as equivalent” by a job evaluation study. For example, if a new pay grade system was brought in at work, and two jobs that had previously attracted different salaries now were regraded as equivalent, the past disparity could be discriminatory.
  3. An “Equal Value” claim (s65(1)(c), (6) EqA) – where a woman and man are doing different jobs, but a tribunal finds that the employer values their work equally by looking at factors such as effort, skill and decision-making. This generally requires a detailed consideration of all aspects of the jobs of the male and female workers in question.

Employees are also protected by the existence of the “sex equality clause”.  This clause is implied automatically into all contracts of employment and has the effect of guaranteeing that female employees’ contractual terms are no less favourable than those for male colleagues (s69 EqA).

Discrimination or breach of contract?

The type of claim an employee would seek to bring depends on the benefit that they are seeking to have equalised.

For example, take a contractual provision for a bonus awarded “at the discretion of the board”.  If a female colleague is awarded less than a male comparator, this would not be a breach of an express contractual term.  However, it may be discriminatory if the Board has exercised its discretion in a discriminatory manner.

So, where the benefit is non-contractual, an employee will generally claim discrimination rather than breach of contract.

Time Limits

A claim for equal pay (in other words, the claim form ET1) must be lodged with the tribunal within six months of the date of the end of a woman’s employment.  That means, if the woman is still employed, the clock has not started to tick.

Defences

An employer may rely on one or more defences to pay claims, as follows:

  1. Pay is not equal because of a “material factor” (for example, geography or individual performance). This defence is set out at s69 EqA, which states that the material factor must not in itself be discriminatory;
  2. The comparator that a female worker relies upon is not suitable and not a real comparator;
  3. The employee and her male comparator do not do like work;
  4. The work of the two employees is not rated as equal by a job evaluation scheme;

If you would like any further or specific guidance in relation to equal pay, please do get in touch with our Employment Team.

Written by Naomi Owen & Mugni Islam-Choudhury

 

 

 

The A to Z of conducting investigations

Have you been asked to conduct a disciplinary or grievance investigation in the work place?  Read the latest guidance from barrister Naomi Owen below.


ACAS

The first port of call for any investigating officer (“IO”) is the ACAS Code of Practice for both disciplinary and grievance procedures.  The Code sets out the minimum that is expected of an employer conducting such processes, and so is a good starting point and must be heeded.

Be prepared

Like all good boy scouts, the IO needs to have done their homework.  It is important for the IO to read all documentation available, including the employer’s disciplinary/grievance policy and any other policy relevant to the issue (e.g. bullying/harassment, social media etc).  Also, it is always wise to prepare a list of questions for each witness to be interviewed, so that the IO is confident they have covered all areas necessary.

Characters

An IO needs to consider who needs to be interviewed in order to gain the full picture of any specific scenario.  This will need to be kept under review; as and when individuals are interviewed, it may be necessary to reconsider whether the IO needs to speak to anyone else as the matter progresses.

Documents

The IO should ensure that all parties present at the investigation meeting have copies of all the relevant paperwork/documentary evidence.

Evidence

The IO will need to give careful thought to whether they require any further evidence not currently available.  For example, “is there any information from company databases that is needed?”, “what about previous performance appraisal notes?” or “have there been any prior complaints that need to be considered?”.

Fact-finding

This is the purpose of any investigation.  It is not for the IO to decide the guilt of any party, but to consider whether there is a case to answer.  An IO should probe for evidence that both supports and contradicts the allegations, as opposed to just trying to build a case against “the accused”.

Global view

A process will not be fair if an IO reaches a conclusion by “ignoring matters which he ought reasonably to have known and which would have shown that the reason [for dismissal] was insufficient”, as Viscount Dilhorne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314.  The IO should, for example, explore all defences or lines of enquiry proffered by an employee under investigation.  This is however caveated by the requirement that an employer need only do an investigation that is reasonable in all the circumstances: it has been accepted by the Court of Appeal that the British Home Stores Ltd v Burchell [1978] ICR 303 test does indeed apply to investigating defences in the round, but not necessarily each individual defence – see Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94

Honesty (or dishonesty)

In cases where the misconduct of which an employee is accused tips into the category of potentially criminal, dishonest or fraudulent behaviour, then the potential ramifications for that individual should impact the IO’s approach to their task.  As the EAT has said, “a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him” – A v B [2003] IRLR 405.

Independence

An IO needs to be independent.  Although it is perfectly acceptable for the IO to be a manager within the employer, if there is any hint of an allegation that the process is/may be tainted, then consideration could be given to bringing in an external person to act as IO.

Jurisdiction

IOs must be sure to define the scope of your investigation.  For example, sometimes a grievance will arise at the same time, or during, a disciplinary process.  It will be necessary to check the employer’s policy as to their guidelines in such a scenario.  For example, the IO may need to consider suspending a disciplinary process whilst the grievance takes place.

Keep everything

Even if handwritten notes are superseded by typed notes, it is important to keep the handwritten notes for a reasonable period of time just in case there is an issue with the typed version, particularly if they are not agreed by the employee.  This also applies to any “notes to self” or aide memoires produced by an IO.

Length of process

Any unreasonable delay may lead to a finding of unfairness, without the employee needing to demonstrate actual prejudice (although this will help his case) – RSPCA v Cruden [1986] IRLR 83 and A v B [2003] IRLR 405.  Again, it is important to check the timelines established in any applicable policies.

Minutes

It is vital to have an accurate note of all meetings undertaken during an investigation process.  Once witnesses have been interviewed and minutes have been prepared, these should be agreed and signed by all persons present.  This safe-guards against an employee challenging the accuracy of the minutes later down the line.

No5 Chambers

If in doubt, our barristers are able to offer advice, or undertake the role of IO for both disciplinary and grievance processes.

Offences

During the course of an investigation, it can be that the offences with which an employee is charged change.  This needs to be very clearly reflected in any investigation report.  If there is a change to the allegations, then the amended allegations need also to be investigated to a reasonable standard.

Probability

The IO will need to consider what is more likely to have happened.  In other words, the relevant burden of proof is the balance of probabilities.

Report

Having done all the leg-work, the IO will then need to prepare an investigation report.  It is generally wise to attach as appendices all notes and documentary evidence collated during the investigation process.  The report will contain a summary of charges and the IO’s findings.

Suspension

Where an employee has been suspended, the IO may need to be aware of the limitation that this places on the employee in terms of their ability to obtain information from the workplace.  For example, a generic suspension letter will prohibit an employee from talking to colleagues or stepping foot inside the workplace; the IO may therefore need to step in to obtain information/evidence that an employee cannot reach for themselves.

Training

If possible, ensure that your investigating officer has had some training specifically aimed at investigations, particularly where the allegation involves unlawful discrimination.  Again, No5 can help here.

Union representatives

There is no statutory right for employees to be accompanied to an investigation meeting by anyone, however it may be good practice to offer an employee the choice of bringing a colleague or union rep with them to a meeting.  Many disciplinary procedures provide for this.

Victim

In some investigations, there will be an alleged victim.  Although it is necessary to ensure that the process is not onerous on any such person, it is necessary that any defence/evidence from the alleged perpetrator is put to the alleged victim fully and comprehensively, in order that such lines of enquiry do not go unexplored.

Witness box

When conducting an investigation, it can be useful to consider how actions and decisions taken by the IO would be justified at an unfair dismissal hearing, giving evidence in the witness box.  By thinking of the (possible) end-game, it can help focus the mind on the task ahead.

X-reference

It is wise to cross-reference documentary evidence with that given by witnesses to ensure that conflicts are raised with witnesses and can be answered.  The same applies to conflicting evidence between two witnesses.  As above, it is only necessary for the investigation to be reasonable, but if there is a glaring inconsistency in evidence a witness should be given the opportunity to state their case.

Yes-men

IOs should be wary of falling foul of an accusation of paying lip-service to the process or being management’s puppet.  As the old adage goes, “justice must be seen to be done”.  Again, if this is a potential allegation that may be levelled at any internal staff, it may be sensible to appoint external support for the investigatory process.

Zeal

IOs sometimes run the risk of stepping into the role of prosecutor, as opposed to an investigator of fact.  IOs need to be careful to avoid being overzealous; any heavy-handed treatment could be seen as a breach of the implied term of trust and confidence.


Naomi Owen
Barrister
Employment Group
No5 Barristers’ Chambers
No5.com