Guidance on Recruiting and Retaining Transgender Employees

The Government has published guidance, produced in partnership with Inclusive Employers, a membership organisation for employers looking to build inclusive workplaces, designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also a useful guide for the managers of trans staff and for trans staff themselves.

The guidance also provides clarification as to how the law applies in England, Scotland and Wales.

Misbehaviour at Office Parties Can Lead to the Sack

Some misbehaviour at office social events is usually tolerated, but workplace rules continue to apply and those who go over the top can be lawfully dismissed. Exactly that happened in one case where a bank worker punched a colleague in the face during an office day out to Chester Racecourse.

The worker and a colleague had been drinking before and during the event. They had been warned in advance that normal office standards of behaviour would apply. There had been banter between them earlier in the day before things got nasty on the dancefloor, when the colleague kneed the worker in the leg and the latter responded by delivering the punch. Following the event, the colleague sent texts to the worker in which he threatened to rip his head off; however, the texts were not received until the following morning.

A disciplinary process ensued and the worker was dismissed for gross misconduct on the basis that his behaviour had the potential to seriously impair the reputation of the bank. The colleague was given a written warning after it was found that the texts were an immediate response to the worker hitting him and that he would not have followed through on the threats.

An Employment Tribunal (ET) upheld the worker’s unfair dismissal claim on the basis that the punch was an overreaction to provocation and that there was an unfair disparity between the bank’s treatment of him and his colleague. In upholding the bank’s challenge to that ruling, however, the Employment Appeal Tribunal (EAT) found that dismissal was a reasonable response to his behaviour. In declaring the dismissal fair, the EAT observed that a distinction could properly be drawn between a deliberate punch in the face during the event and threats issued afterwards.

Thinking of Whistleblowing? Get Legal Advice Before You Speak Out!

Workplace whistleblowers play an essential role in society and are protected by law. However, one striking case has underlined that confidentiality rules still apply and that you would be wise to take legal advice before expressing your concerns.

A nurse was anxious about standards of patient care at the home where she worked and reported her employers to the local authority. She was dissatisfied with the council’s investigation and a dossier was passed to a trade union representative. However, the latter was concerned to note that the dossier identified certain patients by name and included confidential details of their medical conditions.

The nurse was subsequently suspended from the profession for 12 months by the Nursing and Midwifery Council (NMC). There had also been an incident in which she failed accurately to complete medication records, but her misconduct was not at that stage considered so serious as to justify striking her off.

However, she had since failed to engage with the NMC and there was no evidence of any regret or remorse on her part. Patient confidentiality was a fundamental tenet of the nursing profession and the NMC found no evidence that she had developed insight into her wrongdoing. Repetition of her misconduct would put patients at risk of harm and a striking off order was thus the only option.

National Security Prevails in Recruitment Discrimination Dispute

Those employed in sensitive government jobs should take note of an unusual case in which a chess master and computer security expert was refused employment at top secret intelligence base GCHQ after stating that, if forced to choose, his devotion to God would outweigh his loyalty to his country.

The man had gone through a gruelling screening process at the base before he was turned down for national security reasons. He had revealed the intensity of his devout Christian beliefs and GCHQ had also learned from his medical records that he had suffered a drug induced psychosis almost 20 years earlier. He admitted to having taken recreational drugs for nine months, but said that he had put such youthful dabbling behind him and was psychologically fit and well.

An Employment Tribunal (ET) later accepted that GCHQ’s security concerns were in part related to the man’s historic mental disability and his religious convictions. However, in dismissing his discrimination claims, it ruled that they were not the overriding reasons for his rejection. GCHQ’s published policy was that it would rarely consider job applicants who had ever suffered bipolar disorder or a psychotic illness. However, the ET accepted that that did not amount to a blanket ban.

In dismissing the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that GCHQ’s security concerns were separate and distinct from the man’s past disability. His religious beliefs were of no concern in themselves, but GCHQ was entitled to conclude that the effect those beliefs might have on his behaviour and judgment in the workplace did raise national security issues.

‘Zero Hours’ Contract Workers Do Have Employment Rights!

The idea that so-called ‘zero hours’ contract workers have no employment rights is a misconception, as is illustrated by a case in which a security officer who worked under such a regime was awarded arrears of holiday pay and compensation for her unfair dismissal.

The woman had not returned to work after lodging grievances against her employer and her contract was eventually brought to an end. An Employment Tribunal (ET) subsequently found that she had been made redundant, in that the employer had no work for her to do.

However, the ET went on to rule that her dismissal was procedurally unfair in that she had not been consulted or given relevant information. She was awarded £398 in compensation for unfair dismissal, £836 in respect of holiday pay arrears and £398 to reflect her employer’s failure to give written reasons for her dismissal.

In opening the way for the woman to seek further compensation, the Employment Appeal Tribunal (EAT) found that the ET had failed properly to consider her claim for an uplift in her award under the Trade Union and Labour Relations (Consolidation) Act 1992. Her lawyers argued that such an uplift would be justified by the employer’s alleged breaches of the ACAS Code of Practice on Disciplinary and Grievance Procedures. That issue was remitted to the ET for further consideration.

Employment Judge Fell into Substitution Trap

Decisions about what action to take in response to workplace misconduct are a matter for employers and employment judges are not entitled to substitute their own views on factual matters for those of the primary decision-maker. In one unfair dismissal case, a re-hearing was ordered after a judge repeatedly did just that.

A crane operator was summarily dismissed after his machine was badly damaged. He claimed that there had been a single incident in which the crane collided with a buffer at low speed. However, following a disciplinary hearing, his employer found that there had been a second, much more serious, collision and that he had withheld the truth about that incident. An Employment Tribunal judge later upheld his unfair dismissal claim. During the hearing, the judge several times expressed a strong and concluded view that there had been only one collision.

In allowing the employer’s appeal, the Employment Appeal Tribunal (EAT) found that the judge had fallen into the trap of substituting his own views for those of the employer. As a result, he had failed to focus on whether dismissal lay within the range of responses open to a reasonable employer. In those circumstances, the case was sent back for rehearing by a different employment judge.

Employed by a Sprawling Multinational? Are You As Secure as You Think?

Those who work for large multinational companies often enjoy security, benefits and a breadth of opportunity envied by others. However, as a High Court case illustrated, complex corporate structures which span the world can lead to real difficulties in obtaining compensation in the event of a dispute.

Twenty-seven former employees of an international banking group claimed that they had wrongly been denied bonus payments following the 2008 financial crisis. They launched proceedings against seven of the bank’s subsidiaries, claiming more than $100 million in compensation for alleged breach of contract.

The workers were employed by two of the companies, one of them based in France and the other in America. On the face of the contracts which governed their bonus entitlements, the American company bore primary liability to make the payments and was thus the correct target of the litigation. However, it argued that the enormous losses suffered by the group during the crisis had left a negative balance on the workers’ bonus accounts and that nothing was payable.

The workers’ lawyers were concerned that the American company might not be in a position to satisfy a judgment if they won their case on the merits. They suspected that large sums of money had been transferred from the American company to other subsidiaries and, for that reason, decided to sue multiple defendants.

Following a preliminary hearing, the Court found that the American company had not transferred all, or substantially all, of its assets to two other members of the group. In those circumstances there was no serious issue to be tried as between the workers and those two subsidiaries, which were effectively removed from the proceedings. Another subsidiary had also wrongly been brought into the firing line and the claim against it was dismissed.

No Unlawful Discrimination without Detriment, Tribunal Rules

In a ground-breaking decision, the Employment Appeal Tribunal (EAT) has ruled that a finding of discrimination under the Equality Act 2010 can only be made where a worker has suffered an actual detriment by reason of less favourable treatment on the grounds of a protected characteristic.

A security guard of Indian ethnic origin was sent home and investigated following an allegation that he smelt of alcohol at work. He later fabricated a false accusation that his white supervisor had used racially abusive language towards him.

An Employment Tribunal (ET) found that, despite the falsity of the complaint, the employer’s failure to investigate the matter constituted less favourable treatment on grounds of the worker’s race. He was refused compensation, on the basis that he had suffered no injury to his feelings, but the ET nevertheless declared that his employer had directly discriminated against him on grounds of his race.

In allowing the employer’s appeal and overturning the declaration, the EAT ruled that a finding of discrimination under the Act required proof of both less favourable treatment and substantive detriment. The failure to investigate the entirely fabricated complaint had not caused the worker any sense of grievance or injustice.

When is a Whistleblowing Disclosure ‘in the Public Interest’?

In order to qualify as a workplace whistleblower, protected by law, you have to show that the disclosures you make are ‘in the public interest’. The meaning of that phrase has been a constant source of debate; however, a tribunal decision has emphasised that a liberal approach should be taken to its interpretation.

A driver who worked for a large trucking company had made a number of complaints against his employer which he asserted were protected disclosures within the meaning of the Employment Rights Act 1996. One of them took the form of a letter in which he and two colleagues claimed that the distribution of overtime between drivers was being dealt with unfairly and in breach of contract.

Following a preliminary hearing, an Employment Tribunal (ET) struck out that part of his claim on the basis that the disclosure concerned only the particular terms of his and the other two complainants’ contracts and could thus not be viewed as having been made in the wider public interest.

In challenging that decision, the driver’s legal team pointed out that the disclosure was relevant to the working conditions of not only the complainants but also to those of a number of other drivers who worked at the same depot and whose incomes were said to have been affected by the unfair treatment.

In upholding the driver’s appeal, the Employment Appeal Tribunal found that the ET’s approach to the public interest issue had been too narrow. It could not be said that the driver’s claim in respect of the particular disclosure had no reasonable prospect of success. The claim in question was remitted to the same ET for determination along with the driver’s other claims.