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Published by Catherine Kane, 2017-05-29 13:28:28

Interesting Cases Annual Employment Law Update CIPD

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Contents

Page Tribunal Case(s)
03 Age Discrimination - Gramps
04 High heels at work - Workplace Dress Code
05 Sexual harassment - The Indecent Proposal
06 Employment Status in the Gig Economy
07 Restrictive covenants
08 Flexible working
09 Vicarious Liability
10 Holiday Pay

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Tribunal cases of interest

Age discrimination - Gramps

The Bristol employment tribunal has awarded more than £63,000 for age discrimination to a
salesperson nicknamed “Gramps” by his younger colleagues and later, after ageist customer
complaints, dismissed.

The “Gramps” nickname was given to Mr
Dove by the Head of Sales. He referred to Mr
Dove as “Gramps” both in person, in front of
others and by email. After a customer
suggested that Mr Dove was “old fashioned”,
“long in the tooth” and had a “traditional”
approach out of step with their business
needs, some of his accounts were given to
the Head of Sales. Mr Dove was then
dismissed.

In his claim for unfair dismissal to the employment tribunal, Mr Dove put the nickname forward
as strong evidence that the company had ageist attitudes and claimed age discrimination too.
In upholding the claim, the employment tribunal took into account the “Gramps” nickname,
saying it suggested that ageist attitudes were tolerated in this workplace. The tribunal found
that Mr Dove’s dismissal was influenced by the customer’s "discriminatory and stereotypical
attitudes" that the employer had adopted without further enquiry: it should have investigated
what Mr Dove was actually doing rather than dismiss him based on the customer’s attitude.

The outcome was that the employment tribunal found Mr Dove suffered discrimination in the
workplace and was ultimately dismissed because of his age. He was awarded a total of £63,391.

Other nicknames have been used as evidence to bring successful discrimination claims include:

“Yoda” as evidence of age bias as part an age discrimination claim that the employer had made
the claimant redundant because he was close to retirement.

“Typical Irish” used by colleagues to refer to an Irishman working in England. When he made a
mistake he was nicknamed “thick Paddy”. He was dismissed. The tribunal concluded that he was
dismissed “principally because he was an Irishman who would not take Irish jokes lying down”,
and a race discrimination claim was found in his favour.

What you need to know

The case show how important it is for managers to put a stop to employee nicknames
whenever they run the risk of referring to any of the protected characteristics.

3

Workplace Dress Code

Ms Thorp’s employers sent her home after she refused to wear heels between two and four
inches high.

These were the dress code rules of
her employment agency, Portico.
Ms Thorp said wearing heels all day
wasn’t good for her feet. She added
that there wasn’t a dress code for
male colleagues. Ms Thorp believes
the “the current system favours the
employer, and is failing employees.”

The Portico dress code has since been changed, but it originally included:
reapplication of make-up, specific thickness of hosiery, no roots on dyed hair and specific
colours of nail varnish

The report (Read the report online here) recommends a publicity campaign to ensure
employers know their legal obligations, and also, crucially, that workers know their rights and
how to complain effectively. The overall recommendation is to enforce the existing law more
vigorously, if necessary with employment tribunals given powers to issue increased penalties.

Dress codes are not illegal, but could constitute sex discrimination, if a policy treats women less
favourably than men.
A high heels policy could indirectly discriminate against women, provided the complainant can
show that the policy puts her at a disadvantage. Given the health issues associated with
wearing high heels, this argument has merit. The employer would have to defend its dress
policy and demonstrate that it has a genuine business interest for the policy. But in this
instance, it could be argued that smart, flat shoes would be just as appropriate.

What you need to know

Employers must be able to show that their dress code is proportionate, and that its purpose is
to achieve a particular business aim. For example, a policy on hair style could not be enforced if
it is only concerned with appearances, but could be enforceable if health and safety reasons
require staff to tie their hair back.

4

The Indecent Proposal

Majid accepted the job despite the proposal, assuming it to be a joke. But she was then
bombarded with out-of-hours messages and inappropriate comments, including a suggestion
from Ali that he would have a bed installed in his office for them to share. After Majid said she
had a boyfriend, she was made redundant.

The Employment Tribunal (ET) had to
consider whether Mr Ali had engaged in
unwanted conduct of a sexual nature with
Miss Majid, and whether his conduct had
the purpose or effect of violating her
dignity or creating an intimidating, hostile,
degrading or offensive environment for
her.

The ET found that the true reason for her
dismissal was because she had rejected his
advances.

In assessing the amount of compensation to be awarded to Ms Majid, the ET awarded 18
weeks’ loss of earnings, being the amount of time it took her to find a new job. It recognised
that Miss Majid was caused considerable stress and anxiety because of the harassment. As such
she was awarded £14,000 for injury to feelings. She was awarded an additional £4,000 on that
basis. Mr Ali also aggravated the situation. Finally it was recommended that Mr Ali attend an
equal opportunities training course for solicitors.

Mr Ali appealed on the basis that the award for injury to feelings of £14,000 was excessive, but
the appeal was dismissed.

Discrimination claims can be very expensive, even for employees with short service (or even no
service). Allegations of discrimination or harassment are also likely to create bad publicity for an
employer.

What you need to know

Steps can be taken by employers to reduce the risk of claims being made and in some
circumstances provide a defence to those claims. For example, policies on equal opportunities,
bullying and harassment should be up to date and implemented, setting out what constitutes
acceptable behaviour and what does not. Employers should also consider training staff on
equal opportunities and harassment. This will help managers avoid inappropriate questions at
interviews and recognise and deal with harassment at an early stage.

5

Employment Status in the Gig Economy

In three recent cases involving Uber, Citysprint Couriers and Pimlico Plumbers, the workers have
won their cases and this is likely to have wide ranging consequences for those businesses who
keep prices lower by treating their workforces as self-employed, saving National Insurance and
minimizing employment costs.

Many more cases of this nature are in the
pipeline. DPD and Parcel Force for instance
have been asked to contribute to an inquiry
into the gig economy, after it was revealed
drivers were charged up to £250 if they
could not provide cover when they were ill.
The Taylor Review on Modern Employment
Practices which report on the Gig Economy
as part of a wider look at workplace
practices and norms, is due to be published
in July this year.

In deciding whether an individual is an employee, a worker or self- employed there are a
number of tests which have been developed in case law over the years. These include:

Control - The less control the individual has over when, where and how they work the more
likely it is that they are an employee or worker rather than self-employed;

Integration - The more benefits (for example pension, company car etc.) and burdens (for
example liability to be subjected to disciplinary procedures) a person has the more integrated
they are into the business and therefore the more likely it is that they are e mployees or
workers;

Mutuality of Obligations - If there is an express or implied obligation on the employer to give
the work and the individual to do the work then it is likely that the individual is an employee or
a worker. If the individual is free to choose whether or not he or she does the work then it is
more likely that they are self-employed; and

Economic reality - If the individual is simply paid a salary and (subject to disciplinary
procedures) free from the consequences of the work then it is likely that the individual is an
employee or a worker. Conversely if the individual is responsible for losses and liable to correct
unsatisfactory work at his or her own expense it is more likely that they are self- employed.

What you need to know

Given all of the above, if you use self-employed contractors in your organisation then this is a
good time to review the practice and to make sure that your contracts and working practices
support self-employment.

6

Restrictive covenants

Mr Thornton worked for Bartholomew’s Agri Food Limited as an agronomist. Mr Thornton
started his employment in 1997 as a trainee and over the next 18 years, despite taking a de
facto* more senior role, remained on the same contract throughout. This contract contained a
restrictive covenant whereby for the period of 6 months after termination he wa s forbidden to
work in a similar field in a way which would compete with his employer within its trading area
(defined as 6 counties in the south of England) without approval. If approval was not given, Mr
Thornton would receive “full benefits” during this period. In this case Mr Thornton was
attempting to obtain an injunction against his employer, who had now left to work for a
competitor, to enforce this restrictive covenant.

The High Court held that this restrictive
covenant constituted a restraint of trade and
was unenforceable. There were a number of
reasons why this was the case:

The restriction was too broad in scope and
was inappropriate for the Applicant’s level of
seniority. It was described as “manifestly
inappropriate” for a trainee and remained
inappropriate despite the Applicant’s de facto
promotion.

A key point was the fact that the restrictive covenant applied to all customers of the Applicant
regardless of whether the Respondent had carried out work with them. Therefore the Court
concluded that the restriction which the Applicant was attempting to enforce was wider than
what was necessary to protect its legitimate business interests.

What you need to know

It’s important to remember - that when dealing with restrictive covenants, the starting position
is that they are a restraint of trade. They will be unenforceable unless they go no further than
what is reasonably necessary, to protect the legitimate business interests of the employer.

*De facto – its meaning is to hold a specified position in fact but not necessarily by legal right.

7

Flexible working

In October, a male employee at National Rail was awarded almost £30,000 after being offered
only statutory pay by his employer – while working mothers were offered full pay.

Both David Snell and his wife worked for
National Rail and hoped to take advantage of
shared parental leave, but when he applied he
was told he was only entitled to statutory
parental pay of £139.58 per week, while his
wife would receive full pay for 26 weeks. After
raising a grievance, Snell was awarded
£28,321 and Network Rail admitted its policy
was discriminatory.

Although clearly making sense from a cost perspective, the case and the employer’s approach
may serve to undermine the progressive policy intentions of the legislation. While it will still be
open to employers, to argue that a shared parental leave policy which involves differential
treatment as between men and women is justified, if the general response to challenge is to
level down shared parental pay provisions to the statutory minimum then employees of both
genders will inevitably lose out and have no legal remedy.
What do you need to know
Although this first-instance decision is not binding, it is the first case on shared parental leave.
Employers should review their policy in case they are following the same approach as this
employer.

8

Vicarious Liability

Mr Amjid Khan, an employee at a Morrison’s petrol station in Birmingham, verbally and
physically assaulted Mr Ahmed Mohamud in an unprovoked attack whilst at work in 2008.

Mr Mohamud stopped at
the petrol station and asked
Mr Khan if he could print
some documents for him
from a USB stick. Mr Khan
responded with verbal and
racial abuse before
following Mr Mohamud to
the forecourt. CCTV
captured Mr Khan
punching him to the
ground before subjecting
him to a “brutal attack
involving punches and
kicks.”

Mr Mohamud claimed that the attack left him with head injuries and psychological trauma. His
family argued that the law should regard Mr Khan as “wearing the badge” of Morrison’s and so
“representing its brand standards”. Morrison’s, which had already dismissed Mr Khan and
offered to pay a settlement figure, successfully disputed the claim in the lower courts. Yet a
panel of five Supreme Court justices ruled against the supermarket as it was wrong “to regard
Mr Khan as having metaphorically taken off his uniform the moment he stepped out from
behind the counter”.

They also ruled that when Mr Khan followed Mr Mohamud to his car and told him “not to come
back to the petrol station” he had been giving an order and “purporting to act about his
employer’s business”.

Being vicariously liable means that the employer assumes responsibility for the employee at
fault.

What you need to know

In order to eliminate the risk of such behaviour and the potential liability associated with it, you
must have clear anti-discrimination, harassment and bullying policies in place and ensure that
employees are provided with regular training about appropriate behaviour. This will help
reduce your liability and risk of any such claims arising.

9

Holiday Pay

Mr. Lock, a salesman for British Gas who took his employer to tribunal over a claim that the firm
owed him additional holiday pay on the basis that his pay failed to reflect the commission he
would have earned had he been working.

Though there is still the potential for an appeal, the case seems likely to bring significant
implications for a range of sectors, from retail to media, transport and finance. Any employee
with normal working hours, whose pay does not vary according to the amount of work done –
but who receives individual results-based commission as part of their normal remuneration –
will potentially be affected. Employers will have to carefully consider what they believe
constitutes ‘normal remuneration’ for staff, as well as the period it should be measured across.

The Court of Justice of the European Union has determined it must be based on ‘normal
earnings’, whereas the UK legislation says it is based on normal (basic) pay.

The case now goes to the Court of Appeal, listed to be heard on 11 and 12 July.

What you need to know

We are advising our clients that it may be better in financial and HR terms to be proactive and
to seek agreement with employees, or to wait for the issue to be raised by or on behalf of
those employees, until the Brexit negotiations are completed.

Belfast © Catherine Kane Associates 2017
L/ Derry
028 900 800 17
0777 37 666 93

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