Simply Irresistible…

The Supreme Court in America has ruled that a dentist who dismissed a female assistant because he found her “irresistible” did not act unlawfully or discriminatory.

The dental assistant had worked in the practice for 10 years prior to her dismissal which was on the basis that the dentist who ran the practice (and his wife) regarded the assistant as a threat to their marriage. The assistant was dismissed and replaced by another female. The Court held that the dismissal did not amount to sex discrimination because the decision was motivated by feelings as opposed to gender.

It would be interesting to see how this case would have been decided in the UK.  There was a similar case decided in the UK by the EAT in 2003 (Martin v Lancehawk Ltd t/a European Telecom Solutions). A female employee had been having an affair with the company’s managing director. Problems developed with the relationship and the female subsequently told her husband about the affair (despite having told the managing director that she would not do so). She was dismissed shortly after coming clean and the tribunal ruled that her dismissal for gross misconduct was unfair.

However, the tribunal rejected her claim of direct sex discrimination. The claimant appealed, arguing that the only reason that the managing director had engaged in an affair was because she was a woman – but for her sex there would have been no affair and thus no dismissal. The EAT, in rejecting her appeal, reiterated that the key question in claims of direct discrimination will generally be “why did the employer act as they did?”  In that case, the EAT accepted the employer’s evidence that the reason for her dismissal was not her sex, but the breakdown in the personal relationship.

Jack Boyle 
Solicitor – Employment Law

Employment Law Roadshow 2013 – Legal Reforms

There are various significant changes to employment law which came into force today as part of the Government’s ongoing overhaul of employment law.

The following key reforms are effective as of 29th July 2013:-

 ·         Introduction of fees for bringing claims both in Employment Tribunals and the Employment Appeal Tribunal.

·         New format for Employment Tribunal claim forms (ET1) to provide for the fees now payable on lodging claims.

·         Amended rules of procedure in Employment Tribunals which provide for an initial sift of all claims and responses by an Employment Judge (amongst other significant rule changes).

·         Amended Employment Appeal Tribunal rules of procedure.

·         New statutory cap on compensatory awards in unfair dismissals of 52 weeks’ pay (the current statutory cap of £74,200 also remains in place and the lower of the two caps will apply).

·         Compromise agreements re-named settlement agreements and new pre-termination settlement discussions introduced which will generally be inadmissible as evidence in unfair dismissal claims.

·         Interest on unpaid tribunal awards accrues from the day after the judgment was sent to the parties unless the award is paid within 14 days.

Many of these changes will be covered in more depth during our forthcoming seminars at Angus College on Wednesday 14th of August (12pm) and Discovery Point on Thursday 15th of August (8:30am). We hope that you can make it along to one of these events which will provide information on the most radical shake up of employment law of recent times.

Jack Boyle
Solicitor – Employment Law

 

For more information on our Employment Roadshow and on how to register, please visit our website.

 

 

Hot Under the Collar?

Whilst most holiday-makers will be delighted with the current heatwave which is being experienced in Scotland, many office workers will be finding the current climate much more challenging.  Over the past two weeks, the benefit of having an air-conditioned office is becoming very apparent to many workers, particularly those who do not currently have an air-conditioned workplace.

How hot is my work place permitted to be? 

The Workplace (Health, Safety and Welfare) Regulations 1992 place a legal obligation on employers to provide employees with a “reasonable” temperature in the workplace.  Although the Code of Practice suggests a minimum temperature in workplaces (16 degrees Celsius), there is no suggested temperature for the upper end of the scale.  The Regulations merely require employers to make a suitable assessment of the risks to the health and safety of their workers and to take action where necessary and where reasonably practicable.

What is a reasonable temperature?

What is deemed a “reasonable” temperature will vary from workplace to workplace.

However if your office is air conditioned and at least 10% of your staff complain about the temperature, you must conduct a thermal comfort workplace risk assessment.  For non-air conditioned offices, 15% of the workforce will require to complain before an assessment requires to be carried out and for shops and warehouses, this figure is 20%.

What are my obligations as an employer? 

After having carried out an assessment, you should take all reasonable steps to achieve a comfortable temperature within the workplace.  You cannot be forced to install air conditioning, nor can you be forced to provide ice creams or cold beers to all staff.  Similarly you are still permitted to require your workforce to wear a particular uniform or maintain a formal dress code throughout this heatwave.  The Health & Safety Executive suggests that, in these circumstances, employers should consult with their employees to establish a sensible means of coping with the high temperatures.

However perhaps the best advice for employers is to remember that by taking all reasonable steps to assist any heat-stricken employees and by identifying procedures which could ease an over-heated, irritable workforce, you are cultivating a degree of goodwill and loyalty amongst your staff which should hopefully last for longer than this heatwave!

Simon Allison
Partner – Employment Law

Wimbledon Hangover

A manager employed by British Airways is reported to be facing disciplinary action following certain remarks which he is alleged to have made on Facebook about Andy Murray’s mother, Judy.  The manager is reported to have compared her to a ‘recently salted slug’ among other things.  The posts were made when he was off duty watching the Wimbledon tennis final in which Andy Murray triumphed.

This serves as a timely reminder for employers and employees that the area of social networking is a minefield in employment law.  Employers should have in place robust social media policies to make clear to their staff what is (and what is not) acceptable in terms of social media postings.  Similarly, employees should be cautious in what they post on Facebook and bear in mind that it is not a private forum.

Individuals do have a right to freedom of expression under Article 10 of the European Convention on Human Rights.  However, that does not give employees immunity from being disciplined for inappropriate social media postings, particularly where there is a risk of the employer’s reputation being damaged.

Jack Boyle 
Solicitor – Employment Law