Rojgar Job News

Phoenix House Limited -v- Stockman has been kicking round the Employment Tribunal system ever since Ms Stockman was dismissed in 2013.  It has something for all the family – discrimination, some victimisation, a touch of whistleblowing and a light dusting of trust and confidence.  However, on its second trip to the Employment Appeal Tribunal at the start of this year, a new question was up for consideration – is it necessarily dismissible conduct to record covertly a meeting with your employer? Stockman was not dismissed for that reason, but the question arose in connection with the calculation of her unfair dismissal compensation.  If it were conduct warranting dismissal, should there be some greater deduction from that money to reflect the probability that if she had not been dismissed when she was, she would have been sacked when Phoenix House discovered what she was doing? There is little more likely to cause a nuclear winter in workplace relationships tha...

Implied freedom of political communication justifiably restricted by the constraints on APS employees in their public comments. On 7 August 2019, the High Court of Australia handed down its decision in Comcare v Banerji , confirming that the implied freedom of political communication was justifiably restricted by the Australian Public Service (APS) Code of Conduct and related legislation. Ms Banerji was an employee of the then Department of Immigration and Citizenship and under the pseudonym LaLegale had posted a number of tweets critical of the Government and of the Department’s policies and actions in relation to immigration generally and particularly offshore immigration detention centres. The posts were sent from a personal device and almost entirely in her own time. The Department terminated her employment for breach of the APS Code of Conduct and the Public Service Act 1999 (Cth), which both provide in effect that APS employees must uphold APS’ values, integrity and re...

Between August 29 and September 10, the National Labor Relations Board (“NLRB” or “Board”) issued four decisions that resolve important issues that have been the subject of long-running disputes.  It also issued an invitation to submit briefs in a case that provides an opportunity for the current Board majority members to revise the standard for when employee conduct loses protection under the National Labor Relations Act. Misclassification of Employees As Contractors Alone Does Not Violate Federal Law On August 29, 2019, the NLRB decided that employers who incorrectly classify employees as independent contractors – who are not subject to the protections and benefits of the National Labor Relations Act (“NLRA”), which applies only to non-managerial, non-supervisory employees – do not violate the NLRA because misclassification “does not, in and of itself, contain any ‘threat of reprisal or force or promise of benefit....

So said German lithographer Herm Albright in a rare moment’s cynicism, but of course if you really want to get on your colleagues’ nerves, a hostile or negative attitude is far more to be commended. So here is a question arising from a matter on which we were recently instructed. Client’s employee has a persistently difficult attitude – rude, micro-(and indeed macro-)aggressive, sullen, lots of tutting and sighing, a distinct snippiness to his tone and all this still in his probationary period. Off to a flier, clearly.  When the employer’s concerns were raised with him, back came quite a lot more lip plus the assertion that it was all the product of some still unspecified mental health condition. That may or may not be so in this particular case, but it begs a difficult question – to what extent is an employer obliged to tolerate sub-standard “attitude” in the workplace if it has or may have its origin in a disability? The issue is pa...

Employers are often surprised to learn that federal labor law grants employees significant protection to make profane or offensive statements, or engage in other offensive conduct, when they are engaging in “protected concerted activities.” Under existing law, when an employee behaves offensively while attempting to improve group working conditions (such as by striking, circulating a petition, challenging management, or complaining about working conditions on social media), the employer may not automatically discipline or discharge the employee for that offensive conduct. Rather, the National Labor Relations Board historically has considered several factors when determining whether or not an employee’s offensive conduct caused the employee to lose protection under federal labor law. This standard has prompted numerous cases where the Board has required employers to reinstate employees who profanely insulted coworkers, aggressively yelled at managers, or even directed s...

In January 2018 we wrote about Ribalda –v- Spain , a European Court of Human Rights case in which a number of supermarket employees were awarded compensation for breach of their privacy rights. They had been stealing quite handsomely from their employer over some months, as they freely admitted, but nonetheless thought it entirely improper that the supermarket should be allowed to use covert video footage of them to prove it [here]. The first chamber of the ECHR found that the installation of covert video surveillance without notice to the employees (as notionally required under Spanish law) amounted to a disproportionate interference with their rights under Article 8 of the European Convention (in summary, to respect for one’s private life), hence the compensation. One judge alone, Judge Dedov railed against this – the employees had lost their right to privacy when they decided to steal, he said, and so deserved everything they had got, which was sacked. The matter th...

In my post last week, I considered the extent of an employer’s duty to make reasonable adjustments to accommodate an employee whose difficult workplace attitude is alleged to have its origins in a disability. However, there is another angle to this question which the employer must also bear in mind. Section 15 Equality Act 2010 make it unlawful for an employer to treat an employee unfavourably “ because of something arising in consequence of ” his disability, unless it can show that treatment to be justified. In other words, one step removed from direct less favourable treatment because of the disability itself; instead, such treatment on the basis of something stemming from it. There are untold cases around the required degree of knowledge of the disability and of causation of the “something”, but they pretty much all depend on their own facts (this one is a particularly extreme example [here]). For present purposes, let us assume that the employer accept...

If one of your employees is arrested and charged with something more than usually distressing and distasteful, the question will inevitably come up of whether he can be dismissed. The driver for that inquiry will often be a fear on the employer’s part of adverse publicity arising from its continued employment of him against that background. The trial might easily be a year away, so what else are you to do in the meantime? Suspension on pay for such a period is hardly viable, any more than suspension without. So can you dismiss for conduct which the employee may well be ultimately be found not to have committed (and which you yourself may not even believe in), but where the prospective impact on corporate reputation could nonetheless be significant? Time to go back to The Law. For a fair dismissal the employer needs to show that termination would be within the “range of reasonable responses” to the situation in which it finds itself. Generally in these cases it will pro...

Quite a fun little case on TUPE this week, if you like that sort of thing (and on the upside, even if you don’t, at least it has nothing to do with COVID-19). Regulation 4(4) of TUPE states that TUPE-related changes to terms of employment are void in most circumstances.  This has long been read as applying primarily to changes which are detrimental to the employee, as such changes run contrary to the overarching principle that employees’ contract terms are to be safeguarded on a business transfer.  The acquirer of a business is therefore stuck with those terms as they existed at the point of transfer.  But what if pre-transfer those terms have been made more beneficial to the employees, with a specific eye to the transfer?  There may be two reasons for this – first, the “poison pill” to make taking on the staff such an expensive prospect that no-one will buy the business or be willing to take over a service it currently provides, or bus...

We all know that employers have a legal obligation under federal law, as well as under various state and local laws, to provide their employees with a safe work environment free from sexual harassment, and that under certain circumstances, an employer can be held legally responsible for harassment directed at its employees. However, do companies have a legal obligation to protect their customers against sexual harassment perpetrated by their employees and supervisors? This was the issue recently considered by the United States Court of Appeals for the Third Circuit in Yucis v. Sears Outlet Stores, LLC. In Yucis , a female customer, Elisabeth Yucis, visited a Sears Outlet store to shop for a refrigerator. While at the store, she was allegedly subjected to harassing and inappropriate comments by one of the store’s male sales manager. For example, the manager allegedly asked her “What is a pretty girl like you doing in a place like this?, and when she tried to show him a photo ...