The nights are now drawing in and it’s definitely starting to feel like winter. Don’t worry if you don’t feel like going out into the cold, we’re bringing all the latest developments in the world of employment law to you. As always, our newsletter gives you an overview of the key decisions, to make sure that you’re up to date and know what to look out for going forward.
We’ve got cases dealing with the following:
- Automatically unfair dismissal for asserting a statutory right, specifically a refusal to breach the
- Working Time Regulations
- Calculating compensation for injury to feelings
- A recent referral to the ECJ to assess employment status
- Time limits for unfair dismissal claims
- Whether vegetarianism amounts to a philosophical belief
- The definition of disability.
We also have some interesting statistics on the impact of gender and commute times on retention.
This month we are focusing in on the case of Raj v Capita Business Services.
This case deals with the burden of proof in discrimination cases i.e. who’s responsibility is it to ‘prove’ the case.
Generally, the person that brings a claim must prove it. However, in discrimination cases, the burden changes. It is for the Claimant to show that what took place could amount to discrimination. Once they have done that, it is for the employer to establish a non-discriminatory reason for the treatment. If the employer is unable to do so, the claim will succeed.
This may seem like a technical issue but actually it is useful to bear in mind when dealing with discrimination claims at any stage.
This particular case involved an employee with short service, who was dismissed for poor performance. He brought numerous claims against his employer, including sexual harassment; he alleged that his female manager had massaged his shoulders in an open plan office.
The Employment Appeal Tribunal concluded that the conduct had taken place as alleged but did not accept that the burden of proof shifted to the employer. They concluded that the massages were misguided encouragement and not therefore related to sex.
On the face of it, this is a surprising decision and it definitely doesn’t represent a green light for this sort of behaviour.
But what can we learn from this case?
- First of all, it is important to have clear standards in place setting out your expectations for workplace conduct. The EAT were clear that the conduct in question was inappropriate, yet nobody in this open office raised a concern. Your policies should be clear about both what is and is not acceptable and the consequences of inappropriate conduct. Often disciplinary policies will cite ‘inappropriate or unprofessional behaviour’ as potential gross misconduct but this means different things to different people. It is worth reflecting on whether you are doing enough to bring your policies to life and ensure employees understand what they mean in practice.
- Make sure that employees have a clear route to raise concerns. Nipping issues in the bud can avoid the need for costly litigation. An employee’s line manager would often be the first port of call but do all employees know what to do if their line manager is the problem? And do management staff know what to do when made aware of a concern? If not, there may be an opportunity to remind employees of the organisation’s commitment to Dignity at Work,the various avenues to raise a concern and the support available in those circumstances.
- Finally, paperwork, paperwork, paperwork. When it comes to providing a non-discriminatory reason for treatment, documentary evidence can be very persuasive. Managers should be encouraged to maintain written records of their interventions. These will be effective evidence if needed down the line. They may also encourage managers to re-assess their own conduct. The manager in this case is unlikely to have been comfortable recording ‘massages’ as part of her approach to performance management.
We’ll be back next month with the latest cases and legislative changes.